Karim Christian Kamal v. United States Government

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.November 10, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section KEITH M. STAUB Assistant United States Attorney California Bar Number 137909 Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7423 Facsimile: (213) 894-7819 E-mail: keith.staub@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION KARIM CHRISTIAN KAMAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. No. CV 15-1585 FMO (JCx) Hearing Date: December 8, 2016 Hearing Time: 10:00 a.m. Ctrm: 22 Hon. Fernando M. Olguin 1. DEFENDANT UNITED STATES’ NOTICE OF MOTION AND REVISED MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF'S OPPOSITION AND CROSS MOTION FOR SUMMARY JUDGMENT AND/OR PARTIAL SUMMARY JUDGMENT [FILED AS A JOINT BRIEF]; 2. MEMORANDUM OF POINTS AND AUTHORITIES; 3. JOINT EVIDENTIARY APPENDIX [FILED UNDER SEPARATE COVER]; 4. JOINT STATEMENT OF UNCONTROVERTED FACTS [FILED UNDER SEPARATE COVER]. 5. TRANSCRIPT OF MEET AND CONFER PROCEEDINGS [LODGED UNDER SEPARATE COVER]. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 1 of 67 Page ID #:2241 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION FOR SUMMARY JUDGMENT Please take notice that defendant United States of America and Plaintiff Karim Kamal will bring for hearing a motion for summary judgment and/or partial summary judgment on December 8, 2016, at 10:00 a.m., before the Honorable Fernando M. Olguin, United States District Judge, at 312 N. Spring Street, Courtroom 22, Los Angeles, California 90012. The defendant, by and through the United States Attorney for the Central District of California, moves for summary judgment under Federal Rule of Civil Procedure 56, on the grounds that plaintiff, Karim Christian Kamal, cannot raise a genuine dispute of material fact or otherwise prevail on his claim against the defendant and that the defendant is therefore entitled to judgment as a matter of law. The United States seeks summary judgment on plaintiff’s claims purportedly arising from an alleged duty of the United States to maintain the roadway in which the subject motorcycle accident occurred because the undisputed facts establish that the County of Los Angeles, not the United States, was responsible for designing, constructing, maintaining and operating the roadway. In addition, the United States seeks summary judgment on the grounds that the discretionary function exception to the Federal Tort Claims Act precludes the imposition of liability. 28 U.S.C. § 2680(a). Finally, the United States seeks summary judgment on the grounds that the United States is immune from liability pursuant to California’s recreational use statute. Cal. Civil Code § 846. This motion is based on the attached memorandum of points and authorities and the concurrently filed declarations of Keith M. Staub and Sonja Berghdal, exhibits, and upon such other and further arguments, documents, and grounds as may be advanced in the future. The plaintiff's opposition in this fully integrated brief is also his motion for summary judgment and/or partial summary judgment. The United States further opposes Plaintiff’s cross-motion for summary judgment based on the facts and law set forth herein. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 2 of 67 Page ID #:2242 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties respectfully request the court’s permission to exceed the page limitation given the complexity of the issues presented. This motion is made following the conference of counsel required by Local Rule 7-3, which took place, in person, on September 7 and 9, 2016. Pursuant to this court’s order, the parties are concurrently lodging the court reporter’s transcripts for these conferences. Dated: November 10, 2016 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ Keith Staub KEITH M. STAUB Assistant United States Attorney Attorneys for Defendant Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 3 of 67 Page ID #:2243 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS DESCRIPTION PAGE I. DEFENDANT’S INTRODUCTION ...................................................................... 1 II. PLAINTIFF’S INTRODUCTION .......................................................................... 2 III. DEFENDANT’S STATEMENT OF FACTS ......................................................... 6 A. Mission of the United States Forest Service ...................................................... 6 B. The Angeles National Forest and its’ Roads and Trails ..................................... 6 C. The Special Use Permit ...................................................................................... 7 D. Kamal’s Prior Motorcycle Experience ............................................................... 9 E. The Accident..................................................................................................... 10 F. Road Signs on BTCR ....................................................................................... 12 G. Emergency Response to Accidents in the National Forest .............................. 12 H. USFS Law Enforcement in the National Forest ............................................... 13 I. California Court of Appeals’ Decision in Kamal v. County of Los Angeles ............................................................................................................. 13 IV. DEFENDANT’S OBJECTIONS TO PLAINTIFF’S EVIDENCE ...................... 14 V. PLAINTIFF’S STATEMENT OF FACTS ........................................................... 14 A. THE COLLISION ............................................................................................ 14 B. POST COLLISION: ASSISTANCE AND MEDICAL TREATMENT ......... 14 C. USFS OWNERSHIP, POSSESSION AND CONTROL OF BTCR ............... 16 D. USFS ILLEGAL ISSUANCE OF THE 1943 PERMIT .................................. 16 E. DESIGN AND CONSTRUCTION OF BTCR ................................................ 17 F. THE CONDITION OF THE COLLISION SITE/SIGNAGE .......................... 19 G. COLLISION STATISTICS .............................................................................. 20 H. DEMOGRAPHICS ........................................................................................... 21 I. DEFENDANT’S ADMINISTRATION OF BTCR ......................................... 21 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 4 of 67 Page ID #:2244 TABLE OF CONTENTS (CONTINUED) DESCRIPTION PAGE ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. USFS and its employees do not know the scope of Their obligations and authorities as regards the Administration of BTCR ................................................................... 21 b. Failure to investigate collisions as a hazard countermeasure ........... 22 c. Failure to provide medical care and ambulance transportation ........ 22 d. Failure to coordinate travel planning and management with COLA ........................................................... 23 e. Lack of oversight of federal funding ................................................ 23 VI. DEFENDANT’S ARGUMENT ............................................................................ 24 A. Defendant’s Position: Kamal Cannot Meet His Burden of Establishing Negligence Because Defendant Did Not Owe Plaintiff a Duty to Design, Operate and Maintain BTCR ........................... 24 A-1. Plaintiff’s Response to A: Defendant Owed Plaintiff a Duty of Care ........ 26 B. Defendant’s Position: The Discretionary Function Exception To the FTCA Forecloses Federal Jurisdiction Over Kamal’s FAC ............ 28 1. Kamal’s Allegations Fall Within The Discretionary Function Exception, 28 U.S.C. § 2680(a) ............................... 28 1a. Plaintiff’s Response to: “Kamal’s Allegations Fall Within the Discretionary Function Immunity ......................... 29 2. Defendant’s Position: The General Parameters of the Discretionary Function Exception .......................................... 31 2a. Plaintiff’s Argument in Response to: “The General Parameters of the Discretionary Function Exception ............. 32 3. The USFS Has Discretion to Operate and Maintain its Roads .............................................. 33 3a. Plaintiff’s Response to Defendant’s Argument that USFS Has Discretion to Operate and Maintain its Roads ................. 35 a. The Secretary of Agriculture’s Duty to Administer ..... 35 b. The Regional Forest Had No Authority to Issue a Permit Without First Reviewing Definitive Plans and After Construction Began ............................ 36 i. Investigation and reporting of accidents .............. 36 ii. Travel management and travel planning ............. 37 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 5 of 67 Page ID #:2245 TABLE OF CONTENTS (CONTINUED) DESCRIPTION PAGE iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii. Assistance to Victims .......................................... 38 4. Defendant’s Position: USFS’ Decisions Regarding Road Operation and Maintenance Are of the Kind That the Discretionary Function Exception Shields ............................. 39 4a. Plaintiff’s Response to: “USFS’ Decisions Regarding Road Operation and Maintenance are of the Kind That the Discretionary Function Exception Shields ............... 42 a. Failure to Safeguard the Health of Road Users ........... 42 b. Failure to Warn ............................................................ 43 c. Gathering Collision Statistics, and Establishing Causes of Collisions as Part of Countermeasures ....... 44 d. Failure to Coordinate Travel Planning and Travel Management to Promote Road User Safety................. 44 e. Rescue and Medical Assistance ................................... 44 f. Discrimination Against Plaintiff and Road Users Based on Their Ethnicity and National Origin is Not a Discretionary Function ....................... 45 5. Defendant’s Position: Claims Alleging Negligent Supervision of the County Fall Within the Discretionary Function Exception .......................................... 45 5a. Plaintiff’s Response to: Claims Alleging Negligent Supervision of the County Fall Within the Discretionary Function Exception .......................................... 46 6. Defendant’s Position: Claims Alleging Intentional Infliction of Emotional Distress Fall Within the Discretionary Function Exception .......................................... 47 6a. Plaintiff’s Position: USFS Intentionally Inflicted Severe Emotional Distress Upon Plaintiff .............................. 48 C. Defendant’s Position: The United States, As Landowner, is Not Liable to Recreational Users Such as Kamal, For Ordinary Vehicular Accidents..... 49 1. The Plain Meaning of California’s Recreational Use Statute, Civil Code § 846, Immunizes Landowners for all Non-Exempted Negligence Liability to Recreational Users ............. 49 2. Defendant’s Position: Since Kamal was Recreating At the Time of the Accident, the United States is Immune from Liability Under § 846 ................................................ 50 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 6 of 67 Page ID #:2246 TABLE OF CONTENTS (CONTINUED) DESCRIPTION PAGE iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Plaintiff’s Response to: “The United States, as Landowner, Is Not Liable to Recreational Users Such as Kamal, For Ordinary Vehicular Accidents .................................................... 51 4. Plaintiff’s Position: Morales is Not the Sole Cause of the Plaintiff’s Injuries ................................................ 53 a. USFS Actions Are a Substantial Factor in Causing Plaintiff’s Injuries ........................... 53 b. Morales Actions Are Not a Superseding Event ........... 53 c. CHP Officer Sherman Investigation and Traffic Collision Report ............................................... 53 d. Sherman’s Investigation Doe Not Comport with The California Collision Investigations Manual ......... 53 e. Objection: Deyerl Report ............................................. 55 f. Defendant’s Position Regarding Causation ................. 55 VII. DEFENDANT’S CONCLUSION ......................................................................... 55 VIII. PLAINTIFF’S CONCLUSION ............................................................................. 55 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 7 of 67 Page ID #:2247 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES DESCRIPTION PAGE FEDERAL CASES Alcaraz v. Vece (1997) 14 Cal.4th 1149;, 60 Cal. Rptr.2d 448 ........................................ 38 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) ........................................................................................ 8 Bailey v. United States, 623 F.3d 855, 863 (9th Cir. 2010) ......................................................................... 14 Berkovitz v. United States, 486 U.S. 531, 536 (1988) ................................................................................. 12,31 Blackburn v. United States, 100 F.3d 1426, 1430 (9th Cir. 1996) ..................................................................... 13 Buck v. United States, 133 F.3d 925, at *3 (9th Cir. 1998) ....................................................................... 10 Casas v. United States, 19 F.Supp.2d 1104, 1106 (C.D. Cal. 1998) ........................................................... 17 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) ........................................................................................ 8 Chidester v. United States, 646 F. Supp. 189, 194 (C.D. Cal. 1986) .................................................................. 9 Childers v. United States, 40 F.3d 973, 974-75 (9th Cir. 1995) ...................................................................... 15 Dalehite v. United States, 346 U.S. 15, 18 (1953) .......................................................................................... 12 Dixie Sand & Gravel Corp. v. Holland, 255 F.2d 304, 310-11 (6th Cir. 1958) .................................................................... 11 Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) ....................................................................... 9 Fuller v. King, 204 F.2d 586, 590 (6th Cir. 1953) ......................................................................... 11 GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002) ..................................................................... 14 Green v. United States 630 F.3d 1245 (9th Cir. 1990), amended 905 F.2d 1212 36 (9th Circ. 1990) Holmes v. City of Oakland (1968) 260 Cal. App. 2d 378………………………………38 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 8 of 67 Page ID #:2248 vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hughes v. Pair (2009) 46 Cal.4th 1035, 1050—1051 [95 Cal.Rptr.3d 636]……………43 Kennewick Irrigation District v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989) ................................................................ 13,31 Ladd v. County of San Matteo (1996) 12 Cal.4th 9913, 917 [50 Cal. Reptr.309]………37 Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 417 [119 Cal.Rptr.3d 366]…….41 Mansion v. United States, 945 F.2d 1115, 1117 (9th Cir. 1991) ..................................................................... 17 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)................................................................................................. 8 Mattice By and Through Mattice v. United States, 969 F.2d 818, 821-22 (9th Cir. 1992) .................................................................... 17 Mitchell v. Gonzales (1991) 54 Cal.3d 1052, [1 Cal. Rptr.2d 913]…………………….41 Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) ........................................................................ 16 Phillips v. United States, 590 F.2d 297, 299 (9th Cir. 1979) ......................................................................... 17 Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134, [32 Cal. Rptr.2d 755……………37 Ravell v. United States, 22 F.3d 960, 961 (9th Cir. 1994) ............................................................................. 9 Rayonnier Inc. v. United States, 352 U.S.315,320, 77 S.Ct.374 (1957)………………..36 Rowland v. Christian, 12 Cal.4th.913, 917, [70 Soto v. United States, 748F.Supp.727 (C.D.Cal.1990)…………………………………18 Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 72 [28 Cal.Rptr.2d 672]38 Terbush v. United States, 516 F.3d 1125, 1135 (9th Cir. 2008) ..................................................................... 15 Thompson v. United States, 592 F.2d 1104, 1109 (9th Cir. 1979) ....................................................................... 9 Uccello v. Laundenslayer (1975) [44 Cal.App.3d 505…………………………………38 United States v. Gaubert, 499 U.S. 315, 323-24 (1991) ................................................................................. 12 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984)............................................................................................... 13 United States v. Termini, 963 F.2d 1264, 1265-66 (9th Cir. 1992) .................................................................. 9 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 9 of 67 Page ID #:2249 vii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Valdez v. United States, 56 F.3d 1177, 1180 (9th Cir. 1995) ....................................................................... 15 Whalen v. Ruiz (1953) 40 Cal. 2d 294 [253 P.2d 457]…………………………………38 STATE CASES Delta Farms Reclamation District v. Superior Court, 33 Cal.3d 699, 710, 190 Cal.Rptr. 494, 660 P.2d 1168 (1983) cert. denied, 464 U.S. 915 (1983)................................................................................................. 9 Kentucky Fried Chicken of Cal. v. Superior Court (1997), 14 Cal.4th 814, 819, 59 Cal.Rptr.2d 756, 927 P.2d 1260 ....................................... 9 Ladd v. County of San Mateo, 12 Cal.4th 913, 917, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996) ......................... 9,37 Ornelas v. Randolph, 4 Cal.4th 1095, 1100, 17 Cal.Rptr.2d 594, 597, 847 P.2d 560 (1993) .................. 17 Quelvog v. City of Long Beach (1970) 6 Cal.App.3d 584, 86 Cal. Rptr. 127………….38 FEDERAL STATUTES 16 U.S.C. §§528-531.......................................................................................................... 2 23 U.S.C. §101………………………………………………………………………….30 23 U.S.C. §660.103……………………………………………………………………..30 28 U.S.C. § 1346(b) ..................................................................................................... 9, 16 28 U.S.C. § 2671 .............................................................................................................. 11 28 U.S.C. § 2679(b)(1)..................................................................................................... 11 28 U.S.C. § 2680(a) ..................................................................................................... 2, 12 28 U.S.C. §2674 ............................................................................................................... 12 43 U.S.C. §1751 (c)(3) (D)……………………………………………………………..29 43 U.S.C. §1761…………………………………………………………………………29 C.F.R. Reg.L-7 ................................................................................................................. 29 36 C.F.R. § 200.4 ............................................................................................................... 2 36 C.F.R. § 212………………………………………………………………………….33 Forest Service Manual 7700…………………………………………………………….30 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 10 of 67 Page ID #:2250 viii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Forest Service Manual 6730.2…………………………………………………………..32 Forest Service Manual 6731.3…………………………………………………………..32 Forest Service Manual 6731.5…………………………………………………………..32 Forest Service Manual 6731.11…………………………………………………………32 STATE STATUTES Cal. Civil Code § 846…………………………………………………………………….2 California Civil Code § 1714……………………………………………………………37 California Health and Safety Code § 1797.198 (e) .......................................................... 10 California Streets and Highway Code §§ 2006, 2009………………………………….12 California Vehicle Code § 22350……………………………………………………….18 FEDERAL RULES Fed. R. Civ. P. 56(c)........................................................................................................... 8 Fed. R. Civ. P. 56e(2)......................................................................................................... 8 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 11 of 67 Page ID #:2251 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. DEFENDANT’S INTRODUCTION Plaintiff Karim Christian Kamal’s (“Kamal”) First Amended Complaint (“FAC”) against Defendant United States of America (“Defendant”), brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., arises from a motorcycle accident that involved Kamal and another non-party motorcyclist, Samuel Morales, on April 17, 2011. The accident occurred on Big Tujunga Canyon Road (“BTCR”), a road designed, maintained and operated by the County of Los Angeles (“County”), pursuant to a special use permit issued by the United States Forest Service (“USFS”) in or about 1930 and 1943. BTCR is located on federal land in the Angeles National Forest. An investigation of the accident conducted by the California Highway Patrol (“CHP”) concluded that the accident was caused entirely by the second motorcyclist, Morales, who crossed the midline of the roadway into oncoming traffic, and collided with Kamal’s motorcycle. Kamal concedes that Morales caused the accident. FAC, ¶ 24. ECF No. 6. Kamal alleges that the United States: (1) negligently maintained, operated, and managed BTCR; (2) failed to provide adequate emergency medical and rescue services, either through itself or through its alleged agent, County of Los Angeles; (3) failed to ensure that the State of California and/or County of Los Angeles properly applied federal funds that were granted for the purpose of remedying defects in the roadway; and (4) failed to exercise oversight over its alleged agent, County of Los Angeles, regarding the maintenance and operation of BTCR. FAC, ¶¶ 13-20. ECF No. 6. Defendant seeks summary judgment on several grounds: • Defendant Did Not Owe Plaintiff a Duty to Design, Operate and Maintain BTCR; • The Discretionary Function Exception to the FTCA Forecloses Federal Jurisdiction Over Kamal’s FAC. 28 U.S.C. §2680(a); • Defendant is immune from liability pursuant to California’s recreational use Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 12 of 67 Page ID #:2252 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statute. Cal. Civ. Code § 846. For the reasons stated herein, Defendant United States of America respectfully requests that summary judgment be granted in favor of Defendant and against Kamal. II. PLAINTIFF’S INTRODUCTION Plaintiff was the victim of a collision on BTCR on April 17, 2011. The other victim of the collision is Samuel Morales. Both victims were 50 years old at the time of the collision. The media has been decrying the high collision rate on Angeles National Forest roads since at least 1992. P179A. App.1097, 1117. Defendant employee David Gonzales, who works in Angeles National Forest testified that he has seen “a lot of people die” on these roads since 1983. P 180. App.453, 463-464. Plaintiff’s expert has opined that on the 3.11 miles segment of BTCR where the collision occurred there is an average rate of 2.5 times the state average for similar roads. The half mile segment within that 3.11 mile segment were the collision occurred has a collision rate that is 12 and a half time the state average, which is “astronomical.” P. 181 (Declaration of James Jeffery (“Jeffery Decla.”1) paras. 12-15); App.1372, 1373; P186; App. 1285, 1289. The condition of the turn where the subject collision occurred combined several unwarned dangers: the turn is blind (obstructed by a mountain wall), sharp, preceded by a 2000 feet straightaway in Mr. Morales’s direction of travel, an irregular compound curve on a steeper (8%) than designed grade (the design provided for a smooth regular curve and a grade of 7% maximum) P46 C 1281; App. 1405-1407; P. 48 App.1283-1284; P.169 App. 1061, 1279; P186E App. 1289-1290; P47A App. 1281; P49B App.1199-1202, 1373, 1400; P171C App. 1084, 1374; 1320,2 P172E App. 1282; 172H App. 1374, 1375. USFS expert in accident reconstruction, Eric Deyerl, had to have a spotter to warn him if the presence of motorists around the turn to safely conduct his motorcycle runs around 1 James Jeffery’s declaration incorporates by reference his report of May 1, 2016 as though fully set forth herein. We will refer to the part of his declaration that incorporates the report as the “Jeffery Report”. 2 In his declaration, Mr. Snook fully incorporates by reference his report. App. 1365 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 13 of 67 Page ID #:2253 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the turn (this after first becoming familiar with the location and posting a survey crew sign ahead of the turn in the westbound direction). P 171D. App. 1475, 1480; App. 1478 (Dyerl Depo. P. 35:5-15). There was a bump on the road just before the entry of the subject turn. P.172I App. 1229, 1250. With all these defects and dangers present, there were no warning signs of any kind to warn of the sharp turn, to recommend the lower appropriate speed (30 MPH maximum) or to warn about the downhill steep grade. P172E, 172G App. 1282; 172 H App. 1374. BTCR is a road which maximum allowed speed is 55 MPH, a fact that is undisputed. A 25 MPH speed differential between the maximum allowed speed and the recommended speed of 30 MPH at the subject turn is in itself is a dangerous condition. Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 91, 135 Cal.Rptr. 127 (Without any warnings prior to curve, even a cautious driver might well commit himself to the curve at a speed 10 miles per hour in excess of the maximum safe speed, posing the grave danger of either losing control of his automobile or of leaving the roadway). Defendant, who owns Big Tujunga Canyon Road (“BTCR”), essentially claims that it has no say in the manner County of Los Angeles runs BTCR, a property of the United States. Yet, USFS can terminate the permit for cause; the County is required, per the terms of the 1943 permit, to maintain BTCR is a manner that is satisfactory to the Forest Supervisor. App. 287, 288, 295. The defendant has the power to enforce traffic laws for one. D51; D52. When it wants signs to be put up, USA makes pressing demands to the County, and the County complies with the demand fast. P16A App.540, P16B 538. The County must also secure the Defendant’s permission before engaging in extensive repairs along BTCR, including culvert repairs (culvert being an integral part of the design of a road). P. 127B App. 537. The special use permit of 1943 should never have been granted to begin with because the Regional Forester and the Forest Supervisor at that time did not comply with the legal requirements of federal law requiring that a plat showing the definite location of the road be provided before approval. P23A and B. App. 1403, 113; P24A and B. App. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 14 of 67 Page ID #:2254 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 554-556; P25 App. 295. Also, the permit was issued after construction had begun. P27 App. 289. Thereafter, the Defendant did not oversee or supervise the design of BTCR as provided in the 1943 permit. D15.P35A and B, App. 549,550. It is undisputed that Defendant does not manage BTCR or cause the County of Los Angeles to properly manage BTCR. The Defendant contends that it owns the land but not the asphalt. P122 App.214, 220. It does not inspect BTCR. D19; actually, USFS did conduct episodic inspections in the past; but it stopped at some point for no apparent reason other than an unjustifiable belief was passed over the decades to the next generation of personnel that USFS has no jurisdiction over BTCR, and thus USFS has absolutely no say, no role, no authority over and no duty in the management of its property. P. 127A and 128, 543-547). USFS does not make the County to inspect BTCR. P130 App.219, 225. USFS does not “tell the County how to run its roads”. P131 App. 270, 273. There are no procedures in place and no action taken to ensure that the County complies with the terms of the permit. Id. Yet, the special use permit of 1943 requires the County to comply with federal, state and County laws and to manage the road in a manner that is satisfactory to the Forest Supervisor. D14; App. 287-295. USFS has no information on whether the County complies with the terms of the permit. P124, 329- 330, 353. It is also undisputed that the Defendant does not take any countermeasures to address road safety issues; USFS only reviews CHP traffic collisions reports if notified of a collision whenever it happens to be notified. D53; D54. P140 App. 414; P141 App. 411. It is undisputed that USFS has the authority to investigate. P142. App. 346. The Defendant recognizes that it has a vested interest in driving on safe roads. P15 App. 225. It has unfettered use of BTCR P12; P.13, App.285, 288. Defendant does not seek to know whether the County complies with safety laws, such as the California Manual on Uniform Traffic Control devices. These facts are undisputed. D15, D18. Defendant and its employees do not ensure that the County, that receives substantial federal funds under the federal Highway Safety Improvement Program for Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 15 of 67 Page ID #:2255 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engineering, law enforcement, education and emergency medical services, adequately manages these funds to serve their purpose. It does not create or maintain any such records in the ordinary course of business. P. 81A; App. 479, 520-521; 81B App.521- 522, 479. The Defendants employees did not provide the plaintiff any medical assistance at any time, before and after arrival of the local authorities paramedics, though it was obvious that the local forces-a total of 20 personnel--were ignoring the plaintiff. P99 App. 740-741, 1121; 1117-1118, 1121; App.468; P100E; P101 App.741-745; P103 A and B App.746-748. Defendant employee Forest Fire Chief Garcia testified that for the USFS to take charge of the evacuation in case the local forces are unable to reach to victims due to a disaster or other major event, it would require a presidential declaration under FEMA for the USFS employees to take over the rescue. P151 App.958. Garcia does not know that USFS owns BTCR. P123 App. 958-959. Garcia’s lack of knowledge may be as to who owns BTCR may be the cause of his forces denial of care to citizens injured on BTCR. It is in this context that the defendant and its employees now claim discretionary and recreational statute immunities. 3 There is a common theme that runs throughout Plaintiff’s discretionary immunity argument: since USFS claims in error that it has no jurisdiction over BTCR, USFS cannot now state whether the discretionary function exception applies to any of the acts that it failed to take (safety, signage, rescue/medical assistance and oversight). Discretionary function presumes knowledge of one’s powers and duties. 3 Yet, just as BTCR is an unsafe road for the public, it is an unsafe work environment for USFS personnel. This fact begs the question of who would be liable in case of a collision injuring or killing a USFS employee while driving in the performance of his work duties on BTCR (Only the County? Only USFS? or both USFS and the County?). Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 16 of 67 Page ID #:2256 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. DEFENDANT’S STATEMENT OF FACTS A. Mission of the United States Forest Service The USFS is an agency of the United States Department of Agriculture, which is charged with the management of the national forest system. The Multiple Use - Sustained Yield Act of 1960 directs that the national forests be administered for "outdoor recreation, range, timber, watershed, wild life and fish purposes." 16 U.S.C. §§528-531. The mission of the USFS is carried out by means of a management philosophy devoted to the principle of balancing multiple uses of forest resources and which is designed to provide a wide variety of opportunities for outdoor activities and pursuits. Id. Defendant’s Uncontroverted Fact (“DUF”) D1. B. The Angeles National Forest and its’ Roads and Trails The Angeles National Forest (ANF) covers 70% of the open space in Los Angeles County with a population of over 11 million people. The ANF is comprised of 662,983 acres and spans the Los Angeles, San Bernardino and Ventura Counties. BTCR is located in the ANF. See Declaration of Sonja Bergdahl, ¶ 6. Appendix, p. 8. Guidelines governing the administration of National Forests are contained in the Forest Service Manual (“FSM”), issued by the Forest Service’s central office in Washington, D.C. 36 C.F.R. § 200.4. Travel management guidelines are found in Title 7700 of the FSM. See Exhibits 2-5; Bergdahl decl., ¶ 9. Appendix, p. 8. DUF D2 FSM 7703.3, subsection 5, states that roads authorized by a legally documented right-of-way held by a state, county, or local public road authority are under the jurisdiction of those other entities. Ex. 2. Appendix, p. 36. DUF D3. FSM 7716.22 establishes that when a state, county, or local public road authority holds a legally documented right-of-way, such roads are not Forest Service roads. Ex. 3. Appendix, p. 37. DUF 4. FSM 7715.72, entitled “Road and Trail Jurisdiction and Coordination,” tells USFS: “Do not manage, maintain, or designate roads and trails over which the Forest Service lacks jurisdiction.” Ex. 4. Appendix, p. 38. DUF D5. FSM 7703.3, subsection 2, directs USFS to transfer jurisdiction over a Forest Service road to the appropriate public Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 17 of 67 Page ID #:2257 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 road authority. Ex. 5. Appendix, p. 39. DUF D6.4 C. The Special Use Permit USFS issued a special use permit covering a 10 mile right of way for BTCR to the County in or about 1930. Deposition of Graham Breakwell, 9:3-19, 13:7-8; Ex. 6; Appendix, pp. 140, 143. DUF D7.5 The permit was amended on May 17, 1943. Id. at 11:18-12:7, 13:11-13, Appendix, pp. 141-142, 143; Ex. 7; Appendix, p. 43. DUF D8. According to the permit, the County had sole discretion to design, maintain and operate BTCR. Id. at 15:19-16:4. Appendix, p. 144-45. DUF D9. The 1930 special use permit covers the road in which the motorcycle accident occurred on April 17, 2011. Bergdahl decl., ¶ 8. Appendix, p. 8.6 DUF D10. The permit states in pertinent part: “Permission is hereby granted to the Los Angeles County Road Department, Hall of Records, Los Angeles, California, to use the following described lands… [f]or the purpose of constructing and maintaining thereon a road … subject to the following conditions. … 4. The permittee (County) shall fully repair all damage, other than ordinary wear and tear, to roads and trails in the National Forest caused by the permittee in the exercise of the privilege granted by this permit. 10. The road shall at all times be open to the free use of Forest Officers and the public. 4 The FSM includes directives for maintenance and operation of National Forest Service (“NFS”) roads, that fall within USFS’ jurisdiction. These directives do not apply to roads under which USFS does not have jurisdiction, such as a county road covered by a special use permit or right-of-way. 5 Mr. Breakwell is currently the USFS administrator of special use permits in the Los Angeles Ranger District. Breakwell depo., 6:18-22; Appendix, p. 139. 6 Ms. Bergdahl is a USFS forest civil engineer and is currently acting Deputy Forest Service Supervisor. Bergdahl decl., ¶ 2; Appendix, p. 7. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 18 of 67 Page ID #:2258 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. This road shall be kept in a passable condition during all seasons of the year. Ex. 6, p. 1; Appendix, p. 40-41. DUF D11. On May 17, 1943, the USFS issued an amendment to the 1930 special use permit to the Los Angeles County Road Department, granting the County a right-of-way “for the purpose of constructing and maintaining a public road” on BTCR. Ex. 7; Appendix, p. 43. DUF D12. The 1943 amended permit covers the road in which the motorcycle accident occurred on April 17, 2011. Bergdahl decl., ¶ 8; Appendix, p. 8. DUF D13. These permits required the County to comply with all Federal, State and County laws, rules and regulations including regulations of the Department of Agriculture governing the administration and protection of the National Forests. Breakwell depo., at 17:15-23; Appendix, p. 146. DUF D14. For example, the County could not do anything to the roadway that would endanger species near the roadway. Id. at 17:24-18:14; Appendix, pp. 146-147. The permit was issued to the County free of charge, had no expiration date, and could be terminated at any time for cause. Id. at 23:24-24:18; Appendix, pp. 148-149. The USFS does not direct the County as to how to maintain their roadways under the permit. Id. at 26:14-27:5; Appendix, pp. 150-151. DUF D15. BTCR is operated by the County Department of Public Works pursuant to the special use permit. Declaration of Sonja Bergdahl, ¶ 7; Appendix, p. 8. DUF D16. The County operates, designs, installs signs on, and maintains BTCR. Deposition of Sonja Bergdahl, 10:7-13, 20:6-14; Appendix, p. 127, 134.7 DUF D17. USFS has no role in maintaining or operating BTCR. Deposition of Sonja Bergdahl, 14:2-5; Appendix, p. 129. DUF D18. USFS does not inspect roads that are not owned and operated by USFS. Id. at 15:14-17, 21:8-14; Appendix, pp. 130, 135. DUF D19. USFS relies on the expertise of County engineers in the design and maintenance of County roads and does not impose any standards on the County. Id. at 17:9-17, 18:14-19:11; Appendix, pp. 131, 7 USFS owns and operates approximately 1000 miles of forest service land. BTCR is not a USFS road. Bergdahl depo., 10:24-11:14; Appendix, pp. 127-128. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 19 of 67 Page ID #:2259 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 132-133. DUF D20. The County Road Department maintained, designed, constructed and installed road signs on BTCR. Ex. 8; Appendix, p. 54-55 (County’s response to Kamal’s interrogatories, California Superior Court Case No. EC058265); Deposition of Craig Cline, 35:24-36:2; Appendix, p. 181; Deposition of John Squier, 15:16-16:23, 26:6-13, 30:21-31:10; 31:11-32:2; Appendix, pp. 175, 176, 177. DUF D21.8 The design of BTCR was approved by the Los Angeles County Board of Supervisors. Id. DUF D22. The County handles traffic control requests generated by the public and other agencies including traffic signals, stop signs and traffic control devices. Deposition of Arnel Dulay, 9:17-10:22; Appendix, pp. 168-169.9 DUF D23. The County Operations Services Division is responsible for maintaining the inventory for road signs on County roads such as BTCR. Id. at 22:22-25:21; Appendix, p. 170. DUF D24. The County’s Department of Public Works (“DPW”) installs signs, markings and other traffic control devices pursuant to the California Manual on Uniform Traffic Control Devices, DPW’s guidelines and policies, and the engineering judgment of DPW staff. Id. at 25:6-21; Appendix, p. 170. DUF D25. The County reviews a road’s collision history to identify if there are any collision patterns that would warrant a traffic study to determine whether to implement additional road signage or traffic control devices. Id. at 27:6-28:9; Appendix, p. 171. DUF D26. D. Kamal’s Prior Motorcycle Experience Kamal has ridden motorcycles since he was a child. Deposition of Karim Kamal (1/21/16), 46:3-6; Appendix, p. 89. DUF D27. After he arrived in the United States in 2009, he rode motorcycles 4 to 5 times per week. Id. at 46:24-47:9; Appendix, pp. 89-90. DUF D28. He rode his motorcycles at a race track where he was classified in the expert 8 Mr. Cline is a senior civil engineer for the County of Los Angeles. Cline depo., at 19:19-20:1. Appendix, p. 180. Mr. Squier is the County’s retained expert in road and traffic engineering and construction operations, maintenance, traffic and highway safety. Squier depo., at 10:6-14; Appendix, pp. 174-175. 9 Mr. Dulay is a civil engineer with the County of Los Angeles. Id. at 9:4-10:1; Appendix, pp. 168-169. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 20 of 67 Page ID #:2260 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 group of riders. Id. at 47:22-48:8; Appendix, pp. 90-91. DUF D29. Kamal underwent motorcycle training conducted by the CHP in 2009. Id. at 50:9-14; Appendix, p. 92. DUF D30. Prior to this accident, Kamal rode his motorcycle for recreational purposes about 70% of the time (30% of the time for business). Id. at 51:6-17; Appendix, p. 93. DUF D31. He often rode in the Santa Monica Mountains, some of which included winding mountain roads. Id. at 51:18-52:17; Appendix, pp. 93-94. DUF D32. He considered himself experienced in riding on winding mountain roads. Id. at 52:18-21; Appendix, p. 94. DUF D33. E. The Accident On April 17, 2011 between 1:30 p.m. and 1:45 p.m., Kamal was riding his motorcycle eastbound on BTCR when another motorcyclist, Samuel Morales, driving in the opposite direction, “failed to negotiate the blind turn, came out of his lane, crossed over into Plaintiff’s lane at a speed higher than the turn could sustain and collided with Plaintiff while Plaintiff was on his lane.” FAC, ¶ 24. ECF No. 6. DUF D34. Kamal was on his way to meet some friends at the Newcomb Ranch Restaurant at the time of the accident. Kamal depo. (1/21/16), 61:19-62:3; Appendix, pp. 95-96; Kamal depo. (4/25/13), 27:22-28:20; Appendix, pp. 85-86. DUF D35. Immediately following the collision, Kamal’s attempt to call 911 was unsuccessful because there was no cell phone reception in the area. FAC, ¶ 68. ECF No. 6. DUF D36. A USFS fire engine came upon the accident scene while responding to another emergency elsewhere. Deposition of David Gonzalez (“Gonzalez”), 8:6-9; Appendix, pp. 85-86. DUF D37.10 On arrival, Gonzalez observed the two motorcyclists lying in the road. Id. at 8:10-16; Appendix, p. 116. DUF D38. Gonzalez telephoned USFS dispatch about the accident and began administering first aid to Kamal. Id. at 10:5-20; Appendix, p. 117. DUF D39. Another USFS firefighter, Ignacio Pizano, managed the accident scene and communicated with dispatch. Id. at 25:13-17; Appendix, p. 119. DUF D40. A 10 David Gonzalez was a USFS assistant fire engine operator. Id. at 7:4-13; Appendix, p. 115. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 21 of 67 Page ID #:2261 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 private citizen who was a registered nurse was at the accident scene and administered first aid to Morales. Id. DUF D41. Within 7 minutes of USFS firefighters’ arrival, Los Angeles County Fire Department personnel arrived and, soon thereafter, Los Angeles Fire Department paramedics arrived and took over both patients’ care. Id. at 15:11-15, 27:10-25; Appendix, p. 118, p. 120. DUF D42. Both patients were placed on backboards and flown to Providence Holy Cross Trauma Hospital via a Los Angeles County helicopter. Id. at 32:13-33:21; Appendix, pp. 121-122. DUF D43. Kamal arrived at Providence Holy Cross Trauma Hospital at 3:30 p.m., where he ultimately underwent surgery to his left leg. FAC 72-73. ECF No. 6. After conducting an investigation of the accident, the investigating CHP officer, Dustin Sherman, concluded that Mr. Morales was entirely at fault for the collision because he crossed over the solid double yellow lines into the opposing traffic lane. Deposition of Dustin Sherman (4/18/13), 16:6-17:4, 40:14-41:4, 59:2-20, 62:22-63:22; Appendix, pp. 155-156, 157-158, 163, 164-165 (Kamal told Sherman that Morales “crossed into his lane and hit him straight on”); Ex. 9; Appendix, p. 80 (CHP report). DUF D44. Officer Sherman further concluded that Morales was travelling 65 to 70 miles an hour at the time of the collision. Id. at 41:5-43:23; Appendix, pp. 158-160. DUF D45. He reported that Morales’ excessive speed caused him to cross over the double yellow lines in violation of California Vehicle Code § 22350, and caused the collision. Id. at 49:23-50:5; Appendix, pp. 161-162. DUF D46.11 It is undisputed that Morales caused this collision by unreasonably and unsafely allowing his motorcycle to cross the double yellow line separating eastbound and westbound traffic on BTCR. Defendant’s Exhibit 10, Deyerl Report Appendix, pp. 1483- 11 Section 22350 states: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.” Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 22 of 67 Page ID #:2262 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1500.12 Morales crossed the double yellow line because he travelled through the subject curve at a speed beyond his comfort or skill level. Id. In addition, the roadway characteristics did not cause the accident. Id.13 The accident location possessed characteristics which were readily observable to an attentive rider in advance of the approach to that location, and are similar to many other curves on which Morales had been riding for miles prior to the accident. Id. Thus, had Morales acted reasonably, the accident would not have occurred. F. Road Signs on BTCR The road travelled by both Kamal and Morales leading up to the accident site contained several road signs depicting the speed limit and road curvature. Ex. 1, Superior Court Complaint, ¶¶ 17, 18, and 44; Appendix, pp. 14, 20. DUF D47.14 G. Emergency Response to Accidents in the National Forest USFS provides limited emergency medical response for USFS employees injured in remote areas of the National Forest. Deposition of Robert Garcia, 9:6-15; Appendix, p. 109. DUF D48.15 If USFS personnel encounter an accident on a roadway, they immediately notify the nearest EMS response team that has jurisdiction over the location. Id. at 9:16-23; Appendix, p. 109. DUF D49. USFS personnel would then 12 Exhibit 10, the report prepared by defendant’s accident reconstructionist Eric Deyerl, was added to the appendix late in the process and, as such, appears behind Kamal’s exhibits (bates stamped 1483-1500). 13 Kamal argues that a mere 1% difference in grade of the roadway at the accident location between the original design grade of 7% and the alleged grade in excess of 8% years after the accident (during the subsequent investigation by Kamal’s experts) caused the accident. 14 As a preliminary matter, Kamal speculates that had Morales seen road signs depicting the appropriate speed limit and upcoming turns on BTCR, Morales would have heeded those warnings, slowed down, and not caused the accident. FAC, ¶ 24; ECF No. 6). However, such an argument is entirely speculative and without factual basis, since Kamal cannot demonstrate that Morales would have acted differently even if he had observed such signs. Accordingly, even if this Court accepts Kamal’s premise that Morales would have slowed down if signs were posted, he cannot establish, through admissible evidence, that the absence of such signs caused the accident. 15 Robert Garcia is USFS Forest Fire Management Officer. Id. at 6:18-20; Appendix, p. 108. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 23 of 67 Page ID #:2263 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administer first aid until the local authorities (County or City of Los Angeles) with jurisdiction arrive on scene. Id. at 10:7-13, 23:3-19; Appendix, p. 110; p. 111. DUF D50. H. USFS Law Enforcement in the National Forest Traffic laws in the ANF are primarily enforced by the CHP. Deposition of Daniel Briot, 12:13-13:6; Appendix, pp. 100-101. DUF D51.16 Traffic laws also may be enforced by the County sheriff and USFS law enforcement officers, although traffic enforcement is not USFS’ primary responsibility. Id. DUF D52. USFS is not always notified by other agencies about traffic accidents in the Angeles National Forest. Id. at 16:4-22; Appendix, p. 102. DUF D53. USFS does not conduct traffic accident investigations. Id. at 24:1-3, 28:5-25; Appendix, pp. 103, 104. DUF D54. Instead the CHP performs such investigations. Id. I. California Court of Appeal’s Decision in Kamal v. County of Los Angeles In the parallel Los Angeles County Superior Court proceeding, the California Court of Appeal affirmed summary judgment on behalf of the County, finding that “a public entity has no duty to post signs warning of readily apparent natural topography in order to avoid creating a dangerous condition of public property (citing Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App. 3d 1, 7.17 Highways are normally adapted to the natural geographic feature of the lay of the land.” Kamal v. County of Los Angeles et al., Case No. B263531, at p. 24. (Decision attached for the court’s convenience, Exhibit 11. Appendix p. 1501-1527) The court further held that “[w]hile the plan approval process likely might be more intensive now, it cannot be doubted that the County undertook a plan approval process for Big Tujunga Canyon Road in accord with the practices in place at that time.” Thus, the court held that Kamal’s claim that the USFS negligently issued a special use 16 Daniel Briot is a USFS Patrol Captain for the Angeles and San Bernardino National Forests, where he supervises the law enforcement programs. Id. at 6:15-21; Appendix, p. 99. 17 The court is asked to take judicial notice of the Court of Appeals decision in Kamal v. County of Los Angeles, et al. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 24 of 67 Page ID #:2264 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permit to the County because the design plans were not properly approved by USFS, was without merit. Exhibit 11, p. 14. Appendix p. 1501-1527.18 IV. DEFENDANT’S OBJECTIONS TO PLAINTIFF’S EVIDENCE Exh. DKG 27- California 5% Report. Objection. 23 U.S.C. section 409.19 Exh. DKG 39- News Articles. Objection. FRE 401, 801. Exh. DKG 51- James Jeffery Deposition. Objection: lacks foundation, speculation, Fed.R.Evid. 702, 703, 801. Exh. DKG 51- James Jeffery Report. Objection: lacks foundation, speculation, Fed.R.Evid. 702, 703, 801. Exh. 2- Declaration of Robert Snook and report. Objection: lacks foundation, speculation, Fed.R.Evid. 702, 703, 801. V. PLAINTIFF’S STATEMENT OF FACTS A. THE COLLISION The collision that gave rise to this action occurred at about 1:45 PM on April 17, 2011 in a blind, sharp and unmarked turn on Big Tujunga Canyon Road (“BTCR”), a mountainous road in Angeles National Forest (“ANF”). P82 App.708.This was the plaintiff’s first time on BTCR. P84 750. It is significant that the plaintiff observed the relevant events up to the moment that he fell unconscious once in the care of surgeons. Plaintiff’s Statement of Uncontroverted Facts (“P”) 89 App. 738-749. Exhibit 22 of the attached Declaration of Dalila Kamal-Griffin (“”Exh.DKG”) [Kamal Deposition Transcript (“KK Depo.) 58:12-15 81:1-19, 98 through 118:1-16, 133:23), Joint Appendix (“App.”) 509- 558]. B. POST COLLISION: ASSISTANCE AND MEDICAL TREATMENT; P92-P120. 18 Kamal is collaterally estopped from re-litigating this issue in this case as it was decided by the California Court of Appeal. 19 The 5% report is inadmissible pursuant to 23 U.S.C. Section 409, which specifically protects such reports from discovery, as they are prepared pursuant to federal road safety statutes designed to provide the federal government with candid information to improve states’ road safety. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 25 of 67 Page ID #:2265 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 USFS report of incident indicates that at approximately 2:49 PM, four forest rangers (Gonzales, Pina, Pizano and Gomez) drove upon the scene and discovered the two victims lying on the ground. They called for assistance and requested a helicopter. A nurse who was driving by provided the other victim Samuel Morales (“Morales”) care while the two others managed the scene. D40. P97; App. 428, 468 (Gonzales Deposition; Report). The USFS first responders did not provide the plaintiff medical care. Yet they received adequate first responder training, with Gonzales having the highest level of training (an EMT certification). P98 App. 980-984. Pizano testified that he was trained to control bleeding by applying direct pressure to the wound. Exh. 42DKG (PIzano Depo. At 12:20-25) App. 1142-1143. But he did not use this potentially lifesaving technique for the plaintiff. ANF Officers poorly managed the scene with the result that the plaintiff was nearly run over by a non-USFS paramedic truck that parked a few feet uphill from where the plaintiff was lying, powerless as the truck rolled down toward him. P101. App.741-745. The rangers ignored the plaintiff at all times, even when it became obvious that County and City of Los Angeles paramedics at the scene were not paying much attention to the plaintiff. A retired California prison guard that drove upon the scene treated the plaintiff, applying pressure to the wound to control the bleeding. P101 App.741-745. Mr. Morales’ condition, already critical, worsened at the scene. Exh.DKG (LACOFD), P 115, App. 968,979. Yet “[i]t is essential for persons in need of trauma care to receive that care within the 60-minute period immediately following injury.” California and Safety Code Section 1797.198 (e). The timeline of the events from discovery of the victims is stated in P100D. App.967 (Dispatch Time: 04/17/2011 14:43:43, Enroute Time: 04/17/2011 14:50:02, Arrival Time: 04/17/2011 14.59:25; Enroute facility time: 04/17/2011 15:19:57Arrived facility time: 04/17/2011 15:23:23” The Chaplain of the hospital greeted the plaintiff upon arrival. The plaintiff believed that his death was imminent. Karim Kamal Decla. para. 3. App.1443 /// /// Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 26 of 67 Page ID #:2266 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// C. USFS POSSESSION, OWNERSHIP AND CONTROL OF BTCR; P8- P21 USFS owns the land on which Big Tujunga Canyon Road (“BTCR”). USFS Granted the County of Los Angeles (“COLA”) two special use permits to construct and maintain BTCR, one in 1930 for the lower part of BTCR and one in 1943 for the upper part20. The 1930 permit imposed road design standards such as width, grade and radii. P17 App.284. The 1943 permit required COLA to submit the plan for review by the Forest Engineer a mile ahead of construction; and to maintain the road in a manner that is satisfactory to the Forest Supervisor. As seen in Plaintiff’s introduction above, The Forest Supervisor may terminate the permit for cause. App. 287, 288, 295. The 1930 and 1943 permits give USFS free and unrestricted use of BTCR. Id. USFS law enforcement has the authority to enforce traffic laws on BTCR. USFS conducted inspections of BTCR in the past, the last record of inspection dating back to 1981.P127A; P128. App.-383-387. When USFS demands that COLA post traffic signs to remedy hazards, COLA promptly complies. COLA must first get permission from USFS before engaging in extensive repair and maintenance. D. USFS ILLEGAL ISSUANCE OF THE 1943 PERMIT; P23-27. At the time that the 1943 permit was issued21, applicable Federal Regulation L-7 (1929, 1936) required that a local authority submit, prior to commencing construction, definitive plans showing the entire proposed road for review by the Forest Supervisor 20 The 1943 permit actually covers the entire road as it exists now as is seen in Section D below. It appears that the 1943 permit was for a design of the upper part and a redesign of the lower part. This makes no difference as both parties agree that the 1943 permit covers the segment of the road where the collision occurred. D13. 21 Defendant contends that the 1943 permit is an amendment to the 1930 permit. There is no evidence this is the case. The 1943 permit seems to be a new permit, separately filed and separately approved. It is the 1943 permit that was amended in 1945 as the document shows on its face. Counsel discussed the amendment issue at their meet and confer. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 27 of 67 Page ID #:2267 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and approval by the Regional Forester22. P. 23A, P23B. App. 1403, 113. The Forest Supervisor forwarded COLA’s application for the 1943 special use permit to the Regional Forester on or about December 6, 1943 without COLA first submitting complete plans for the entire proposed right of way. P24A, P24B. App. 554-556, 112- 114. The permit was approved on January 29, 1944. P. 25. App. 295 By then, construction had already begun. Only on March 22, 1945 did the Supervisor notify the Regional Forester that he (the Supervisor) had received the complete plans for the entire road from COLA. P26. App. 553 E. DESIGN AND CONSTRUCTION OF BTCR; P28-P62. It should first be noted that the term “construction” includes “supervising, inspecting, actual building, and incurrence of all costs incidental to the construction or reconstruction of a highway”. 23 USC 101 (a) (4). The term “construction” includes preliminary engineering, engineering, and design-related services directly relating to the construction of a highway project, including engineering, design, project development and management, construction project management and inspection, surveying, mapping. Id. This definition is significant because the defendant contends that it has no involvement in the construction of BTCR. It is undisputed that County drew the plans for BTCR and the construction was completed in 1950. P28, P29. The record produced by USFS in discovery indicates however that USFS only reviewed the plans ahead of the first mile of construction. P35A, P35B. App.549, App. 550. Nobody at County or ANF knows what the road design standards were in 1943 and can assert the BTCR was designed pursuant to the applicable standards at that time and whether whoever approved the design had the authority to do so. P40B. App.585, 586, 593, 623; P41B App. 599, 601, 622, 623. P45A App.222, 223. USFS Forest Engineer Sonia Bergdahl claims that employees at the 22 BTCR is not part of a forest highway program. If it had been, the permit would have been approved by the Secretary of Agriculture rather than the Regional Forester. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 28 of 67 Page ID #:2268 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Forest Service—including her office—rely on the “experts”; and that USFS forest engineers do not have the skills to design highways. App.219, 222, 225. Yet Ms. Bergdahl is a civil engineer whose training and duties encompasses road. App.210, 211, 212; 213; 217. See Declaration of Sonia Bergdahl, filed in support of the USFS Motion for Summary Judgment. Civil Engineers at the Forestry have, as duties, to oversee contracted construction of roads and investigating existing conditions. P4. App. 248. Nobody, of those who should have the information, seems to know whether the plans were approved by the person having the authority to approve the design in 1943, and that would be either the Road Commissioner or a person to whom the authority to approve the design was lawfully delegated by internal rules attributing powers. California Streets and Highway Code Section 2006, 2009. Johnston v. County of Yolo 274 Cal. App. 2d 46 (1969). Martinez v. County of Ventura 14 C.D.O.S. 3825, Second Appellate District, No. B244776 (April 8, 2014). P. 41B; P41C App. 684; 687. USFS erroneously believes that it is the Board of Supervisors that should have approved the 1943 permit. D22. Since 1912, it has been in the Los Angeles county Chart that the Road Commissioner is responsible for all-road construction related matters. P30 App. 1177. In any case, County submitted plans to the Forest Supervisor in support of its application for a permit. The plans provided for a grade of 7% maximum (with a representation to USFS that the grade does not exceed 7% at any location) and a smooth 300 hundred feet radii for this curve. P46C. App. 1281; App. 1405-1407; P24B App. 554-556 App.647-649 (grade as designed); P. 48 App. 1199-1202; App.1283-1284; P49A and P49B. App.1199-1202 (radius as designed). As built, the grade on the road exceeds 8% at several locations. It exceeds 8% at various locations of the subject turn (where it gets as high as 8.5%); P47A App. 1281; 186E App. 1290; P47C App.1444, 1455,1456, 1457; Karim Kamal Declaration (“KK”). The curve, as built, is a compound curve made of four arcs. P186E App. 1290; P49. App.1199-1202. Interestingly, when asked about the grade, County engineer Craig Cline, testified that he had not “examined the grade for the entire limit of the roadway.” Mr. Cline is also unsure about the radius. P47E App.603-604. P40B Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 29 of 67 Page ID #:2269 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 App.585, 586, 593, 623. F. THE CONDITION OF THE COLLISION SITE/ SIGNAGE.P.152-178; P187-195. Signage is generally faulty on BTCR. P.186F. App. 1290. Some signs send conflicting messages in violation of the California Manual on Uniform Traffic Control Devices (CA MUTCD)23. Curves and reverse curves indicate a horizontal alignment change that can be comfortably driven at a speed of 35 MPH and over (40, 45, 50). Turns and reverse turns indicate changes that can be comfortably driven at a speed of 30 MPH maximum. As the County of Los Angeles traffic sign inventory indicates and as Mr. Jeffery notes, in one instance a reverse turn is paired with a recommended speed of 35 MPH. The error puts drivers at risk of overdriving a turn and departing the road. Also, as noted by Mr. Jeffery, the traffic sign inventory indicates that there is a curve symbol sign that is wrongfully paired with an advisory speed plaque recommending a maximum speed of 30 MPH, putting drivers at the risk of one driver closing in on the driver ahead and, to avoid a collision, swerve out of lane and collide head on with an oncoming vehicle. Plaintiff has photographed traffic signs that are similarly mismatched pairs. See 192A-L for definitions, functions, characteristics of relevant signs and danger of faulty signage. One of the faulty, dangerously confusing pair of signs was on Mr. Morales’ way to the collision site. P192N, 192O. Also, there is no hill sign warning of the grade coming from Mr. Morales’ direction of travel (or from the plaintiff’s direction of travel), though a sign was required at that location due to the steepness and length of the grade. P 172E App. 1282. Signage is random, inconsistent and creates dangerous expectations that tight and 23 Per CA MUTCD 2010 Section 1A-02 “Uniformity of the meaning of traffic control devices is vital to their effectiveness”. Per Section 1A-06 “any given device for the control of traffic shall have the same meaning and require the same action on the part of motorists regardless of where it is encountered”; and per section 1A-06 “uniformity of devices simplifies the task of the road user because it aids in recognition and understanding, thereby reducing perception/reaction time. Uniformity assists road users, law enforcement officers and traffic courts by giving everyone the same interpretation”. P 159-160. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 30 of 67 Page ID #:2270 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 blind turns will be warned against. P172B App. 1270-1271. P170C App.1214-1215. In the westbound direction (Mr. Morales’direction of travel), starting from Angeles Forest Highway that intersects with BTCR uphill from where the subject collision occurred, there are several curve warning signs and speed advisory plaques (D47); then a 2000 feet long straightaway that ended in a blind turn. The subject turn however, with all its characteristics including the facts that it concludes a long straightaway on which motorists are likely to pick up speed, is not marked by a turn sign on either side, a speed advisory plaque or a hill sign warning of the grade. P.170B App. 1279. G. COLLISION STATISTICS The collision occurred on the 3.11 miles long segment of BTCR known as Vogel Flats-Clear Creek Truck Trail (“Vogel Flats”). P182 App. 1049. In the 5 years preceding the subject collision and up to May 2, 2011, there were 19 collisions on that segment. Id. The County collision rate on that 3.11 segment is 2 and one half time the average Caltrans rate for similar roads. P186A. 1285, 1289. App. 1375; App. 1439-1440. In the half-mile segment of BTCR extending from 4700 feet east of Vogel Flats to 7350 feet east of Vogel Flats, in the 5 years preceding the subject collision and not including the subject collision, there were 8 collisions, including a fatality, four severe injuries and one injury. That makes a collision rate of 12 and one half time the state average for a similar road. Mr. Jeffery opines that this number is “astronomical”, the highest he has seen in 40 years he has been a civil and traffic engineer. P181 G and P181H. App. 190, 1369, 1372. It is therefore no surprise that the State of California has designated that segment as one among those exhibiting the most severe highway safety needs in an official report submitted to the Federal Highway Administration in August of 2010 (“2010 5% report”). P69A App 767-773 (p 25, entry 463 of Exhibit). It is noteworthy that in both the 2010 and 2009 (P70 App.1186) California “5% reports” the Counties methodology for designating the half mile-segments exhibiting the most highway safety needs consists of zooming in on half mile segments of roads with a least three or more fatal or severe injury collisions within the 3 years preceding the year Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 31 of 67 Page ID #:2271 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the 5% report is submitted. Using a comparable methodology for a three-year period, the segment of road where the subject collision occurred is clearly one that indicates a severe highway safety need: in the three years preceding the subject collision, from September 2008 to September 2011, there were two severe injury collisions, not including the subject collision, and one fatality). Notably, there were 3 collisions that occurred exactly at 5280 feet east of Vogel Flats (2007, 2008, 2010); there was one collision 5500 feet east of Vogel Flats in 2006, a mere 220 feet east; there was one collision 1137 west of CFM 5.69 (close to the subject collision). App. 190, 813, 831- 854; 1369-1370- 1372. The subject collision occurred 5300 feet east of Vogel Flats road. P182B App.1367 (1321 feet west of CFM 5.69. App.673.) H. DEMOGRAPHICS USFS finds it noteworthy that most users of the Vogel Flats recreation area off of BTCR are mostly families from recent immigration. P54-56 (ANF presentation of the forest). App. 700-702. Decades ago, a judge of this court noted the racial prejudice and contempt exhibited by USFS employees toward ANF users. P57. See Soto v. United States 748 F. Supp. 727 (C.D. Cal. 1990). The plaintiff is an immigrant whose English is accented. App.706-707. I. DEFENDANT’S ADMINISTRATION OF BTCR; P121-149. To avoid liability for its failure to discharge its duties and its wrongful conduct, USFS claims that it has no jurisdiction over BTCR. USFS contention is flawed. First, USFS contention has no basis in law and in fact. Second, The FSM and SHH not only authorizes USFS personnel to take some actions, but it mandates the taking of certain actions with a prescribed course of conduct to take countermeasures, as will be seen below. a. USFS and its employees do not know the scope of their obligations and authorities as regards the administration of BTCR. USFS’ employees (namely the Forest Engineer and Acting Deputy Supervisor; Special Use Permit Administrator; Daniel Briot, the ANF Law Enforcement Chief and Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 32 of 67 Page ID #:2272 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Garcia, the ANF Fire Chief, contend that USFS has no jurisdiction over BTCR. Yet, by its own admission, USFS cannot ascertain what powers, privileges and duties, if any, it completely surrendered to COLA as regards the administration of BTCR including the rescue of citizens in distress. Forest Engineer Sonia Bergdahl and Acting Deputy Forest Supervisor (“Bergdahl”) and Special Use Permit Administrator Graham Breakwell (“Breakwell”) believe that USFS owns the land but not the asphalt.24 Breakwell states that USFS has no business telling COLA “how to run” the road. Without knowing the scope of their jurisdiction and duties, it is difficult to imagine USFS making a plausible, good faith and informed discretionary function argument. In any case, the FSM and the SHH are replete with mandates, as seen below. b. Failure to investigate collisions as hazard countermeasure: Though it has the authority and obligation, as will be seen on Part II below, to investigate collisions on ANF roads, USFS does not investigate collisions, not even when a fatality is reported. P141 App. 411. USFS may investigate for claims investigations, if notified of the collision, which does not always happen. D53; P140. App. 414. Though the procedure is to notify the Forest Supervisor of a fatality, USFS neither the employees that responded to the scene nor anyone else at USFS bothered to notify the Supervisor or the Washington USFS headquarter (as mandated by law as will be seen below) that in this case that the collision was reported as fatal. P138 App. 468, App.453; 462; P146A App. 243; 146B App.203. Nobody bothered to correct the record to reflect that none of the victims of the April 17, 2011 collision had died. P 145A, 145B. App.462. c. Failure to provide medical care and ambulance transportation: USFS states that in some instances, ANF trained personnel must render emergency care to other employees or visitors. P149 App 954, 958; App. 447. Garcia 24 California Civil Code 658 as: l. Land; 2. That which is affixed to land. Ths, USFS owns BTCR, including the asphalt. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 33 of 67 Page ID #:2273 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testified that ANF first responders’ obligations are to notify the local forces of the accident and to provide emergency care pending arrival of the local forces. Garcia testified that once the local forces are at the scene, the responders no longer have any obligation to assist the victims. P150 App. 954, 955, 956,957; P151 App.958. Even in a life and death situation, they will not organize transportation of the victims to a hospital. Id. In case the local forces are unavailable due to a major event, and on the condition that the President of the United States issue a decree under FEMA, then and only then will the ANF personnel rescue and organize the transportation of the victims to a medical center. Id. Chief Garcia’s response to accidents on BTCR is however based on his erroneous belief that USFS does not own BTCR and has no responsibility for the rescue and rteatement of citizens in distress on BTCR. d. Failure to coordinate travel planning and management with COLA USFS and its employees, namely the Forest Supervisor and the Forest Engineer, do not do not coordinate management of roads with local authorities to ensure consistency of management. They do not coordinate travel planning either so as to integrate information to improve safety on the roads. P132 App. 216,219, 225, 226 133; P133 App. 227. e. Lack of oversight of federal funding In an August 2010 report (“5% report”), the State of California designated the segment of BTCR were the collision occurred as one of those exhibiting the most severe highway safety needs. P69 767-773. The designation was made in the 5% report the State of California submitted in support of the State’s application for its yearly share of federal funds to improve road safety under the Highway Safety Improvement Program (“HSIP”) codified in 23 USC 148. App. 1133-1135. The FHWA granted the state $7,124,980.64 in federal funds for projects in the County of Los Angeles since 2010. P76A and B App.388-393. However, no segment of BTCR has been included in the HISP federally funded projects since 2010. Id. App. 396-401. Yet, posting a warning Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 34 of 67 Page ID #:2274 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sign would have cost in the ballpark of $1000. P.78 App. 1249. Unfortunately, USFS, which is the eyes and ears of the FHWA on the ground, has no information about any HSIP or other federal funding related issue regarding BTCR. P79 App. 332, 355, 199. VI. ARGUMENT A. Defendant’s Position: Kamal Cannot Meet His Burden of Establishing Negligence Because Defendant Did Not Owe Plaintiff a Duty to Design, Operate and Maintain BTCR Under the FTCA, the United States is only liable if a private person would be liable to the claimant in accordance with the law of the place where the act or omission to act occurred. 28 U.S.C. § 1346(b); United States v. Termini, 963 F.2d 1264, 1265-66 (9th Cir. 1992). Hence, the United States must be treated as a private person for purposes of the court’s analysis, even if a different rule would apply to California governmental entities. Ravell v. United States, 22 F.3d 960, 961 (9th Cir. 1994); Delta Farms Reclamation District v. Superior Court, 33 Cal.3d 699, 710, 190 Cal.Rptr. 494, 660 P.2d 1168 (1983) cert. denied, 464 U.S. 915 (1983). In California, a negligence claim requires proof of the following elements: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach was the proximate or legal cause of the resulting injury. Ladd v. County of San Mateo, 12 Cal.4th 913, 917, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996). The existence of a duty is a question of law for the court.” Kentucky Fried Chicken of Cal. v. Superior Court (1997), 14 Cal.4th 814, 819, 59 Cal.Rptr.2d 756, 927 P.2d 1260. Generally, courts assessing liability for injuries sustained on land subject to a special use permit issued by the United States have applied common law rules governing lessor liability. See Thompson v. United States, 592 F.2d 1104, 1109 (9th Cir. 1979); Chidester v. United States, 646 F. Supp. 189, 194 (C.D. Cal. 1986). California law provides that a lessor of land, such as the United States, “is not subject to liability to [a] lessee or other coming on to [] land with the consent of the lessee for physical harm Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 35 of 67 Page ID #:2275 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 caused by any dangerous condition which comes into existence after the lessee has taken possession.” Chidester, 646 F. Supp. at 194 (citing Restatement of Torts 2d § 355); see also Buck v. United States, 133 F.3d 925, at *3 (9th Cir. 1998) (unpublished) (holding “United States did not have a duty to place boundary signs” on a ski slope under a special use permit issued to a resort even though the United States “had the right to monitor” the area). Rather, where the lessor of property did not contribute or is otherwise not involved in the creation of an injury-producing hazard, the lessee is liable for injuries sustained on property under their possession or control. See Thompson, 592 F.2d at 1109; Chidester, 646 F. Supp. at 194; Buck, 133 F.3d at *3. In Thompson, for example, the United States issued a special use permit to a race promoter to conduct a motorcycle race on federal land. Thompson, 592 F.2d at 1109. During the race, one of the competitors (the plaintiff) crashed and was struck by other racers, causing serious injuries. Id. at 1106. Plaintiff brought suit under the FTCA alleging that the United States was negligent in its “failure to mark the race course properly or to control the spectators so as to avoid interference with the racers.” The Ninth Circuit held, however, that since the race was conducted pursuant to a special use permit, “[t]he government is not responsible for the negligence of the employees of other entities or agencies, even though they are working under a federal contract … [or] maintaining property owned by the federal government[.]” Id. at 1107.25 Kamal seeks recovery for negligent acts or omissions, which arose from an alleged duty of the United States to maintain, or insure that the County maintain, BTCR. See FAC., ¶ 13. ECF No. 6. However, Kamal concedes that the County was responsible 25 The Court also rejected the plaintiff’s alternative argument that the Government was “negligent in issuing the permit at all [,]” reasoning that the “act of issuing a permit” falls “within the discretionary function exemption[.]” Id. at 1111. The Court further noted that “the mere provision for government safety inspections, or the ability to stop an activity for failure to comply with safety standards, does not impose liability on the government for failure to do so. A government safety manual or safety program does not impose a special duty on the government.” Id. at 1110. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 36 of 67 Page ID #:2276 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the management, operation and maintenance of BTCR. FAC., ¶ 48. ECF No. 6. In addition to the testimony of the County road engineers identified above, Kamal’s parallel Superior Court case alleges that “DPW (Los Angeles County Department of Public Works) is responsible for the design, construction, operation, maintenance, and repair of roads including Big Tujunga Canyon Road…” Ex. 1, at ¶¶ 3, 75, and 84; Appendix, pp. 11, 27 and 28.26 The United States did not owe Kamal a duty to properly design, maintain or operate BTCR, because it was a County road, maintained solely by the County.27 Kamal cannot demonstrate that the United States was legally obligated to maintain BTCR. The duty to maintain BTCR has rested with the County since 1940. After receiving the special use permit from the USFS, the County indefinitely assumed all responsibility for maintaining BTCR. In conformity with its duty arising from the special use permit, the County designed, operated and maintained BTCR. Therefore, Defendant’s motion for summary judgment should be granted as a matter of law. A-1. Plaintiff’s response to A: Defendant owed Plaintiff a duty of care: California Civil Code Section 1714 provides: “(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the 26 “Allegations [contained] in pleadings in other actions are admissible in evidence as admissions [against the party that made the allegations].” Dixie Sand & Gravel Corp. v. Holland, 255 F.2d 304, 310-11 (6th Cir. 1958), citing Fuller v. King, 204 F.2d 586, 590 (6th Cir. 1953). 27 To the extent Kamal contends that County was an “agent” of the United States or that the United States is vicariously liable for the acts of the County, that claim must be dismissed as a matter of law. The United States waives its sovereign immunity in limited instances. The United States may be held liable for the acts or omissions of “any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). The United States is not liable for the acts of its contractors. 28 U.S.C. § 2671. Kamal has presented no evidence demonstrating that County acted as an agent for the United States, or that County’s conduct was controlled or supervised by the United States. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 37 of 67 Page ID #:2277 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury upon himself or herself. “ The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496].) In Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561decision, the California Supreme Court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ “[A] landowner… has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.” ’ ” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134 [32 Cal.Rptr.2d 755]. The landlord is liable for the condition of areas over which he retains control, such as common passageways. (Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal. 2d 394, 399 [170 P.2d 5] In Uccello v. Laudenslayer, [44 Cal. App. 3d 505] the California Court of Appeal ruled that “[t]o permit a landlord …to sit idly by in the face of the known danger to others must be deemed to be socially and legally unacceptable...It reasonably may be said that by virtue of the right of termination, respondent had sufficient control over the premises so as to bring the case within an exception to the general rule of non-liability.” Cited in Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 60 Cal. Rptr. 2d 448, 929 P.2d 1239. A public entity, as holder of the servient estate, may retain enough control, that is, such Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 38 of 67 Page ID #:2278 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 kinds of control, as to share liability with the owner of the dominant estate. (See e.g., Holmes v. City of Oakland, supra; cf. Whalen v. Ruiz (1953) 40 Cal. 2d 294 [253 P.2d 457]). If an independent contractor, no matter how carefully selected, is employed to perform work, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726 [28 Cal.Rptr.2d 672]. A landowner who encourages or participates in creating a hazard can be held liable. Quelvog v. City of Long Beach (1970) 6 Cal.App.3d 584, 86 Cal. Rptr. 127. It is undisputed that USFS always had title, possession and control of BTCR. P6- P22. By its failure to step in and assert its jurisdiction over BTCR, USFS has long been the County’s enabler in the wrong it has inflicted the plaintiff and others. B. Defendant’s Position: The Discretionary Function Exception to the FTCA Forecloses Federal Jurisdiction Over Kamal’s FAC 1. Kamal’s Allegations Fall Within the Discretionary Function Exception, 28 U.S.C. § 2680(a) Kamal alleges, in part, that the United States: (1) failed to provide adequate emergency medical and rescue services, either through itself or through its agent, County of Los Angeles; and (2) the United States failed to ensure that the State of California and/or County of Los Angeles applied federal funds that were granted for the purpose of remedying defects in the roadway including poor road signage and narrow and uneven lanes. FAC ¶ 14-20. Even assuming that these allegations were true, they fall within the purview of the discretionary function exception to the FTCA, which immunizes the United States from liability. 28 U.S.C. § 2680(a). As discussed above, USFS did not maintain, operate or design BTCR. However, even if the court were to find that the United States owed Plaintiff a duty to: (1) install signage on the roadway; (2) provide medical and rescue services to the Angeles National Forest; (3) ensure that the State of California and/or the County properly used federal funds to improve the roadway; or (4) ensure that the State of California provided Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 39 of 67 Page ID #:2279 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient law enforcement on the roadway, such acts involved an element of discretionary judgment which was the kind that the discretionary function exception was designed to shield. Thus, the discretionary function exception precludes the imposition of liability for this alleged conduct. 1a. Plaintiff’s response to: “Kamal’s Allegations Fall Within the Discretionary Function Immunity” Objection to Sonia Bergdhal Declaration: Paragraph 7; objection as to “maintained”, “designed”, “operated” and “constructed”. Lacks foundation, incompetent, failure to state ground; legal conclusion. FRE 401, 402,403; Paragraph 10 FRE 403”. Lacks foundation, incompetent, failure to state ground; legal conclusion; misleading, incomplete statement of the law (omits “depending on the circumstances, the forest service may share some level of jurisdiction”; FSM 7703.3; irrelevant as to section 7703.2. FRE 401, 402,403; Paragraph 11 “Lacks foundation, incompetent, failure to state ground; legal conclusion; misstates the law”. FRE 401, 402, 403. Based on its erroneous belief that USFS has no jurisdiction over BTCR and that it only owns the land but not the asphalt, USFS and its employees failed to discharge their duties and to ensure that BTCR is safe. This fact alone distinguishes this case from all the cases that Defendant cites in support of the USFS’ claim of discretionary immunity. USFS defense is obviously an “ex post rationalization” for its failure to properly manage its property to ensure the safety of the road users, the kind of “ex pots rationalization” that our Court of Appeal rejected in Marlys Bear Medicine v. United States 241 F.3d 1208 (9th Cir. 2001). In plain English, to administer means to manage, control, operate and regulate. www.merriam-webster.com/dictionary/administer. Since 1929 the US Forest Service has been mandated to continue to administer the land within the rights of way that it grants. P. 23A and P23B. App. 1403, App. 1131. The Secretary of Agriculture is vested with the authority to administer rights of way. 43 U.S. Code § 1761. USFS has the right to perform repair and maintenance of a right of way if the permit holder allows the right Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 40 of 67 Page ID #:2280 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of way to deteriorate to the point of threatening persons or property and fails to take action after consultation with USFS; USFS has then the right to assess the holder for the costs of the repairs. 43 U.S.C. 1751 (c) (3) (D). Jurisdiction means the legal right or authority to control, operate, regulate use of, maintain, or cause to be maintained, a transportation facility, through ownership or delegated authority. The authority to construct or maintain such a facility may be derived from fee title, easement, written authorization, or permit from a federal agency or some similar method. 23 CFR 660.103. 28 . The FSM contemplates that shared jurisdiction may be the case (“Depending on the circumstances, the Forest Service may also share some level of jurisdiction on roads for which the service has granted a legally documented right of way.29 D3. App. 36 Per USFS Forest Service Manual (“FSM”) 7700 “Jurisdiction over a Forest Transportation Facility” is the legal right to control or regulate use of forest transportation facility derived from title, an easement, an agreement, or similar source”. Exhibit 16 of DKG Decla.App. 503. USFS has ownership, possession and control of BTCR. USFS has jurisdiction over BTCR. 28 A forest highway means a forest road under the jurisdiction of, and maintained by, a public authority and open to public travel. Id. Public authority means a Federal, State, county, town, or township, Indian tribe, municipal or other local government or instrumentality with authority to finance, build, operate or maintain toll or toll-free facilities. The term "forest road or trail" is as a road or trail wholly or partly within, or adjacent to, and serving the National Forest System that is necessary for the protection, administration, and utilization of the National Forest System and the use and development of its resources. 23 USCS § 101 29 The designation referred to in FSM 7700 section 5 specifically an only relates to the designation of roads for motor vehicle use. 36 CFR Part 212, Subpart B. Id. It is thus irrelevant to the issue of whether USFS has jurisdiction over BTCR. When USFS granted the 1943 permit, it did so for the specific purpose of motor vehicle travel. Motor vehicles existed already and were widely used. There was no designation of BTCR for motor vehicle use issue. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 41 of 67 Page ID #:2281 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Defendant’s Position: The General Parameters of the Discretionary Function Exception In enacting the FTCA, Congress created a limited waiver of the United States’ sovereign immunity from suit. Dalehite v. United States, 346 U.S. 15, 18 (1953). As a consequence, the federal government may be held liable for certain torts its employees commit in the course of their employment. 28 U.S.C. §2674. The FTCA, however, excludes certain conduct from the waiver of sovereign immunity. Accordingly, the discretionary function exception precludes the imposition of liability for conduct "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Application of this exception is determined by applying a two-part test. See United States v. Gaubert, 499 U.S. 315, 323-24 (1991); Berkovitz v. United States, 486 U.S. 531, 536 (1988). First, the conduct at issue must be discretionary: it must "involve[] an element of judgment or choice." Berkovitz, 486 U.S. at 536. This inquiry is the same regardless of the status of the actor. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984); Berkovitz, 486 U.S. at 536. Judgment or choice is absent "when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" because then "the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536. Second, "assuming that the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536. In enacting the discretionary function exception, "Congress wished to prevent judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Varig Airlines, 467 U.S. at 814; Berkovitz, 486 U.S. at 537; Gaubert, 111 S. Ct. at 1273. Finally, the discretionary function exception, where applicable, bars all negligence claims inasmuch as "Congress Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 42 of 67 Page ID #:2282 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exercised care to protect the government from claims, however negligently caused, that affected the governmental functions." Dalehite, 346 U.S. at 32. 2a. Plaintiff’s argument in response to: “The General Parameters of The Discretionary Function Exception” 28 USC Section 2674 provides that the United States shall be liable to the same extent as a private individual under like circumstances. Regarding government-created dangers and failure to warn of these dangers, our Supreme Court has held that:” [w]here the government creates a danger, it must warn the public of that danger. To hold otherwise would unfairly allocate "the entire burden" of government-created dangers to the individual, "leav[ing] him destitute or grievously harmed," and directly contravene the FTCA's liberal purposes. Rayonier Inc. v. United States, 352 U.S. 315, 320, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1957). The failure to warn is not the exercise of a discretionary function. Summers v. United States, 894 F.2d 325 (9th Cir. 1990), amended, 905 F.2d 1212 (9th Cir. 1990); Green v. United States 630 F.3d 1245 (9th Cir. 2011) (Failure to warn not held to involve competing interests). When a government negligently ignores health hazards that were called to its attention, a claim for negligence is not barred. Whisnant v. US S400 F.3d 1177, 1181 (9th Cir. 2005). In Kennewick, where a break in an irrigation canal was at issue, our Court of Appeals held that held that the canal's design was protected from liability but that the actual construction was based not on policy but technical considerations and therefore not subject to the discretionary function exception. 880 F.2d 1018, 1029 (9th Cir. 1989). While "[a] general statutory duty to promote safety . . . would not be sufficient" to meet the Berkovitz requirement for specific regulations setting out a clear duty under Kennewick, the "failure to effectuate policy choices already made" will not be protected under the discretionary function exception. Camozzi v. Roland/Miller and Hope Consulting Group , 866 F.2d 287, 290 (9th Cir. 1989) cited in Marlys Bear Medecine v. United States. 241 F.3d 1208 (9th Cir. 2001). “While each case requires individual Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 43 of 67 Page ID #:2283 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 analysis….we have generally held that once the Government has undertaken responsibility for the safety of a project, the execution of that responsibility is not subject to the discretionary function exception.” Marlys Bear Medicine v. United States, supra. The government bears the burden of demonstrating that the discretionary function exception applies. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002). While the plaintiff bears the burden of coming forth with sufficient evidence to establish there are genuine issues of material fact regarding the applicability of the discretionary function exception, the government bears the burden of establishing that the test is met and that discretionary immunity applies. Prescott v. United States, 973 F.2d 696, 702 (9th Cir.1992); Marlys Bear Medicine v. United States , supra 3. Defendant’s Position: The USFS Has Discretion to Operate and Maintain Its Roads Even if Defendant managed, operated and maintained BTCR, which is disputed, there exists no “specific and mandatory” regulation or policy that creates “clear duties incumbent upon the government actor” as to how to construct, operate, manage, inspect and maintain its roads. See Kennewick Irrigation District v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989) (“Berkowitz thus establishes that a safety or engineering standard operates to remove discretion under the FTCA when it is embodied in a specific and mandatory regulation or statute which creates clear duties incumbent upon government actors. A general statutory duty to promote safety . . . would not be sufficient.”) (emphasis in original); Blackburn v. United States, 100 F.3d 1426, 1430 (9th Cir. 1996) (“While the said policy guidelines certainly outline general policy goals regarding visitor safety, the means by which [National Park Service] employees meet these goals necessarily involves an exercise of discretion.”). Both the mission of the USFS as well as its Forest Service Manual are replete with discretion as to how USFS roads are to be classified and maintained. In fact, FSM 7715.72 specifically instructs USFS: “Do not manage, maintain, or designate roads and trails over which the Forest Service lacks jurisdiction.” Ex. 4; Appendix, p. 38. Indeed, Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 44 of 67 Page ID #:2284 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that manual makes evident that its contents do not create a “specific and mandatory regulation or statute which creates clear duties incumbent upon government actors.” See Kennewick, 880 F.2d at 1026 (citing Berkowitz).30 Kamal argues that the discretionary function exception does not apply in this case because USFS violated several duties of due care including that: (1) USFS failed to administer BTCR; (2) the Regional Forester had no authority to issue a permit without first reviewing definitive plans and after construction began;31 (3) USFS failed to investigate this accident; (4) USFS did not coordinate travel management and planning with the County; and (5) USFS failed to provide medical assistance to victims of accidents in the ANF. USFS retained discretion regarding how, if at all, to administer the roadway, how to issue permits,32 how to investigate accidents,33 how to coordinate travel management and planning, and how to provide medical assistance to accident victims. Kamal has not demonstrated that in using such discretion, USFS failed to comply with a “specific and mandatory” regulation or policy that creates “clear duties incumbent upon the government actor” as to how to construct, operate, manage, inspect and maintain its roads. See Kennewick, supra. As discussed in Defendant’s Statement of Facts above, the California Court of Appeals in the parallel state court case found that “the County undertook a plan approval process for Big Tujunga Canyon Road in accord with the practices in place at that time.” 30 Regardless, a government safety manual or safety program does not impose a special duty on the government. Thompson, 592 F.2d at 1110. 31 To the extent Kamal claims that the special use permit should not have been issued in 1930 and 1943, those claims are barred by the statute of limitations. 28 U.S.C. § 2675; Cal. Civ. Proc. Code § 335.1. 32 Kamal’s claim that the Regional Forester had no authority to issue a permit without first reviewing definitive plans and after construction began is largely based on speculation as to how the permit was issued in 1930 and 1943. Given the lack of documentation relating to the permit process back then, Kamal can only speculate as to what occurred over 70 years ago. Thus, he has not presented admissible evidence supporting this claim. 33 Kamal has not shown how the failure to conduct a post-accident investigation caused his injuries. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 45 of 67 Page ID #:2285 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 11, p. 14. Appendix p. 1501-1527. Applying that ruling here, Kamal’s claim that the USFS negligently issued a special use permit to the County because the design plans were not properly approved by USFS, is without merit. Thus, the discretionary function exception applies to these claims. 3a. Plaintiff’s response to Defendant’s argument that USFS Has Discretion To Operate and Maintain Its Roads. Federal law, the FSM and the SHH are replete with mandates to administer and to how to administer BTCR. a. The Secretary of Agriculture’s duty to administer USFS has an obligation to continue to administer the right of way. Its employees, namely the Secretary, the Forest Chief, the Regional Forester, Angeles National Forest Supervisor, the Chief of ANF Law Enforcement, the ANF Fire Chief and the ANF Forest Engineer, essentially admit that they failed to administer BTCR on the erroneous ground that they have no jurisdiction over BTCR. Yet, Reg L-7 mandates USFS to continue to administer the right of way. P23. App. 1403, 1131. USFS seems to attempt to rationalize its employees failure to discharge their mandates by now contending that since there is no clear directive on how to manage BTCR, the mandate does not prevent discretionary immunity. In Marlys Bear Medicine, supra, our Court of Appeal rejected that kind of “ex post rationalization” (“our inquiry into the nature of a decision is not meant to open the door to ex post rationalizations by the Government in an attempt to invoke the discretionary function shield.”). On that ground alone, USFS and its employees are not entitled to discretionary immunity for anyone of their actions or failures to act. Without knowing the scope of their powers and duties, USFS could not possible know what discretionary function it has. In fact, USFS has not stated with the required specificity what discretionary function it has. /// /// /// Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 46 of 67 Page ID #:2286 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. The Regional Forest had no authority to issue a permit without first reviewing definitive plans and after construction began. There was a specific course of action to follow in granting a right of way. P. 23A and P23B. The ANF Forest Supervisor unlawfully forwarded COLA’s application to the Regional Forester for the 1943 permit without first reviewing and including definitive plans for the entire proposed road as required by Reg.L-7. P24A; P24B. Then, the District Forester unlawfully granted the permit without reviewing the definitive plans first; and it granted the permit after construction had begun, another violation. P 23-27. Kennewick Irrigation District v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989); (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988) (“no discretion to issue a license without first receiving the required test data since to do so would violate a specific statutory and regulatory directive."). c. Duties under the Forest Service Manual (“FSM”) and the Safety and Health Handbook (“SHH”). i. Investigation and reporting of accidents (See P8A-P8H). The Forest Service Manual (FSM) contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service line officers and primary staff in more than one unit to plan and execute assigned programs and activities.” P8A. App.1152. USFS has investigation and reporting procedures in place. P8B. App.340-342, 337, 343. USFS policy is to investigate and report all accidents resulting in death or serious injury to visitors with the objective to prevent similar accidents by determining the cause of the accident. P8C App.335. A team appointed by the Regional Forester, Station Director or Area Director shall investigate all accidents with potential or serious consequences. P8D App. 337. The Forest Supervisor must be notified in case of a fatality. P8E App.242, 243. FSM mandates notification of the Washington Office in case of the death of a citizen where USFS is involved. P8FApp.338. SHH states that accidents involving serious personal injury require accident investigation reports in addition to being reported; that Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 47 of 67 Page ID #:2287 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at a minimum, the first and second line supervisor shall review and discuss each accident to identify the cause(s) and that, using the information in the report, the review team shall develop its recommendations to prevent or mitigate the damage or injury which occurred within a time frame. P8G App. 340, 343, 344, 345. A thorough review of factors involved in an accident can identify the true cause(s) of the accident. P8H App. 344. The FSM and SHH impose clear duties and guidelines to report and investigate collisions with the established objective of identifying the causes of accidents. Yet, there was no investigation of this collision. In fact, Patrol Captain Briot, whose duties include supervising the law enforcement program in ANF, testified that law enforcement does not conduct investigations of collisions in the ordinary course of business. USFS only investigate if they are notified, whenever they happen to be notified. ANF law enforcement officers do not review California Highway reports or SWITRS for the purpose of finding out whether accidents occurred, how severe these accidents are and for the purpose of identifying and remedying the causes of accidents to prevent similar occurrences in the future. ANF employees only review the CHP reports in connection with claim investigations (that is presumably only when one is presented). P140-P143. App. 346, 411, 414, 415-416. Thus, USFS and its employees willfully deprived themselves, and, by extension, road users—which includes USFS personnel-- of the means to identify the causes of, and to prevent future, accidents. ii. Travel management and travel planning. In managing the forest transportation system, responsible officials shall coordinate with state and local governments to integrate transportation information and provide for user safety. Exh. 16 of DKG Decla. App. 495, 496 (Travel Management, Section 7702 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 48 of 67 Page ID #:2288 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Objectives); Section 7703, Policy).34 Id. Bergdahl testified that her office does not manage, inspect, maintain, operate or cause COLA to manage, inspect, maintain and operate BTCR on the assumption that USFS has no jurisdiction whatsoever over BTCR. P125, 129, 130, 132, 133. Bergdahl denies, or is unaware, that USFS has, at minimum, shared jurisdiction with COLA over BTCR. Based on the erroneous assumption that USFS has no jurisdiction or responsibility whatsoever regarding BTCR, USFS’s responsible employees, namely the Forest Supervisor and the Forest Engineer, do not coordinate travel planning and travel management of roads with other local road authorities, save for road closures in case of a disaster. PS 132-133 Here too, any claim that there are no specific instructions on how to coordinate travel management and travel planning should be rejected as “ex port rationalization” of a failure to discharge a mandate on the erroneous belief of lack of jurisdiction. It is noteworthy that BTCR allows access to recreational areas like Vogel Flats and Stonyvale. Thus, travel planning and travel management are most important to ANF recreational users. There is no point in offering beautiful campgrounds if the roads that lead to these campgrounds is fraught with perils. iii. Assistance to victims. The ANF first responders must provide emergency medical care until the local government forces arrive at the scene and take patient’s care over. P148 App.981. 149 App 954, 958. ANF first responders (Gonzales, Pina, Pizano and Garcia) provided no medical assistance to the plaintiff though the local forces did not take over plaintiff care. The local forces failure to provide care is the same as if they had not shown up at all. 34 USFS may transfer jurisdiction over an NSF road to the appropriate local authorities under the circumstances stated in Section 7703.3 of the FSM. App. 497. USFS transfer of jurisdiction referred to in FSM 7703.3 concerns roads that already exists and already are part of the National Forest System (“NFS “) System. This section, cited by the Defendant for the proposition that USFS have the authority to transfer jurisdiction of a road to a local authority, is irrelevant to this case because BTCR did not come onto existence before USFS granted BTCR a right of way to construct the road. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 49 of 67 Page ID #:2289 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Defendant’s Position: USFS’ Decisions Regarding Road Operation Maintenance, and Emergency Services Are of the Kind That the Discretionary Function Exception Shields “When a statute or regulation allows a federal employee to act with discretion, ‘it must be presumed that the agency’s acts are grounded in policy when exercising that discretion.’” GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002) (emphasis added), quoting Gaubert, 449 U.S. at 324. “The relevant question is not whether an explicit balancing is proved, but whether the decision is susceptible to policy analysis.” Kennewick, 880 F.2d at 1028; Bailey v. United States, 623 F.3d 855, 863 (9th Cir. 2010) (“Moreover, so long as a decision involves even two competing interests, it is ‘susceptible’ to policy analysis and is thus protected by the discretionary function exception.”). The USFS’ mission involves the balancing of several types of demands for access and use of its lands. Users are advised and expected to assume responsibility for their recreational pursuits. For example, as the Ninth Circuit has explained, “most of our cases in the post-Gaubert era have held that fulfilling NPS’s [National Park Service] decision to warn the public of hazards in national parks entails the kind of policy weighing decision protected from judicial review by the discretionary function exception.” Terbush v. United States, 516 F.3d 1125, 1135 (9th Cir. 2008), citing Childers v. United States, 40 F.3d 973, 974-75 (9th Cir. 1995); see also, Valdez v. United States, 56 F.3d 1177, 1180 (9th Cir. 1995); and Blackburn, 100 F.3d at 1430. The USFS’ administration of public lands generally, and its roads specifically, falls squarely within this line of Ninth Circuit cases. In Childers v. United States, 40 F.3d 973, 974-75 (9th Cir. 1995), the Court held that the decision to leave a trail open in the winter, but not to maintain it or post any warnings, fell within the discretionary function exception because such a decision “inherently required a balancing of public policy objectives, such as resource allocation, visitor safety and visitor access.” The federal courts therefore lacked jurisdiction over Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 50 of 67 Page ID #:2290 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the parents’ tort claim for the death of their minor child on a national park trail. Id. In Valdez, the failure to warn of a danger posed by a waterfall within Kings Canyon National Park that rendered plaintiff a quadriplegic was protected by the discretionary function exception. Valdez, 40 F.3d at 1180. The Court recognized that NPS could not apprise the public of every potential danger posed by every feature in a national park. Id. The Valdez court concluded that judgment was required to determine which hazards required an explicit warning. Id. The discretionary function exception applied because the decision regarding if and how to warn against particular dangers “clearly implicated a choice between the competing policy considerations of maximizing access to and preservation of natural resources versus the need to minimize potential safety hazards.” Id., accord Blackburn, 100 F.3d at 1434 (“NPS in the present case balanced competing policy considerations in determining how to warn the public of the hazard.”). In the instant case, the USFS has to balance a variety of policy considerations in making decisions on how to maintain its lands and roads for various types of public use. In addition, it is also responsible for the preservation of its natural and cultural resources as well as a myriad of other activities which could implicate road use (i.e., logging; wildlife habitat; grazing; etc.) Bergdahl decl., ¶ 11; Appendix, p. 9. Consequently, USFS’ decisions concerning Kamal’s allegations of negligence in the management, operation, and maintenance of its roads, even if true, are subject to the immunity conveyed by the discretionary function exception. USFS’ guidelines did not obligate it to post signs on BTCR, provide emergency medical services, nor provide law enforcement for the County road in question. Thus, even if USFS had made decisions regarding BTCR, such decisions would have encompassed an element of discretion, which would fall within the scope of the discretionary function exception. Kamal argues that although the design of a governmental course of action is shielded by the discretionary function, the “implementation” of that course of action is Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 51 of 67 Page ID #:2291 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not. However, it is undisputed that USFS played no role in designing, maintaining or operating BTCR. Thus, because USFS never implemented any course of action with respect to BTCR, the “implementation” concept is not an issue here. Kamal also claims that USFS failed to safeguard the health of travelers on BTCR after it chose to undertake safety precautions and failed to properly oversee construction of the roadway. The flaw in that analysis is that USFS never undertook safety precautions and played no role in the roadway’s design. Kamal argues that USFS’ failure to place road signs and warn of inherent risks, exceeds the scope of the discretionary function exception. As outlined above, the discretionary function exception applies because the decision regarding if and how to warn against particular dangers “clearly implicated a choice between the competing policy considerations of maximizing access to and preservation of natural resources versus the need to minimize potential safety hazards.” See Valdez, supra. Kamal’s reliance on the Ninth Circuit’s decision in Fang v. United States, 140 F.3d 1238, 1243 (9th Cir. 1998) for the proposition that emergency medical technicians’ treatment of an accident victim does not fall within the scope of the discretionary function exception, is misapplied. The facts in Fang are radically different from those in this case and, therefore, the Court’s decision would not apply here. In Fang, the Court declined to apply the discretionary function exception because the Park Service’s EMT protocols required the EMT’s to perform certain medical functions given their substantial level of expertise. Park Service regulations mandated that each ranger station be equipped with EMT’s who have a minimum level of expertise and that the EMT’s perform certain medical treatments in response to specific medical conditions and situations. Id. at 1242. Here, USFS has no regulations, policies, procedures or protocols mandating that USFS firefighters provide any type of medical care to accident victims nor requiring certain EMT staffing and equipment needs for USFS firefighters. Moreover, social and economic policies are implicated in the USFS’ decisions regarding the provision of Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 52 of 67 Page ID #:2292 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 medical care by its firefighters, including the policies that (1) local entities’ emergency services are best equipped to handle traumatic injuries on County roads; (2) USFS’ mission is to administer the forest for "outdoor recreation, range, timber, watershed, wild life and fish purposes." 16 U.S.C. §§528-531. The mission of the USFS is carried out by means of a management philosophy devoted to the principle of balancing multiple uses of forest resources and which is designed to provide a wide variety of opportunities for outdoor activities and pursuits. Id. 4a. Plaintiff’s response to: “USFS’ Decisions Regarding Road Operation and Maintenance Are of the Kind That The Discretionary Function Exception Shields Our Court of Appeal has “generally held that the design of a course of governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is not.” Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005). The court also cautioned that “matters of scientific and professional judgment‐ particularly judgments concerning safety‐ are rarely considered to be susceptible to social, economic, or political policy.” Id. Stated another way, once the Government has undertaken responsibility for the safety of an event, the execution of that responsibility is not subject to the discretionary function exception. Marlys Bear Medicine v. U.S. ex rel. Secretary of Dept. of Interior (supra) at 1215. “The decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not.” Id a. Failure to safeguard the health of road users. USFS’s failure to comply with its duty to maintain its property as a safe and healthy environment for road users is not a policy choice of the type the discretionary function exception shields. Whisnant, supra. It bears to be underscored that BTCR is a road that is used daily by hundreds of motorists for purposes that are not limited to recreational use. In fact, BTCR has been given the designation of a major collector. P52A and B. App. 359, 1212-1213. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 53 of 67 Page ID #:2293 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Firstly, USFS failed to ensure that the permit was granted in accordance with Reg.L7. Then, it failed to ensure that BTCR was constructed according to design (radius and grade). It failed to review the plans ahead of a mile of construction for each mile to be constructed on the 7 miles right-of-way, save for the first mile. USFS does not even have the plans for BTCR. The result of these failures is the construction of a turn (the subject turn) that does not comport with the radius and the grade provided in the design. Inspections were occasionally conducted in the past, the last such record of inspection by USFS dating back to 1981. P127A and 128. Thus, USFS has undertaken safety and control measures; but it fell short. It also failed to ensure that signage is proper and comports with the CA MUTCD. USFS has, on occasions, demanded that County put up signs to remedy a hazardous condition on roads operated by County of Los Angeles but it did not take similar action at the subject turn. P16A. Safety measures, once undertaken, cannot be shortchanged in the name of policy. Medicine, supra. In Camozzi, supra, where the U.S. Postal Service ("USPS") retained safety oversight of a construction project, the failure of the USPS or its representative to require floor coverings was held to be a "failure to effectuate policy choices already made," not the result of a policy decision and therefore subject to FTCA liability. 866 F.2d at 290. See In McCall v. United States Dep't of Energy, 914 F.2d 191, 196 (9th Cir. 1990) (implementation of basic safety measures was not a policy-based decision); cited in Marlys Bear Medicine, supra. In this case, USFS clearly retained a right of oversight as indicated in the 1943 permit pursuant to which USFS can terminate the permit for cause. USFS also required that BTCR be maintained in a condition that is satisfactory to the Forest Supervisor. b. Failure to warn The USFS failure, at minimum, to warn of the danger in the segment of BTCR where the collision occurred, was not the exercise of a discretionary function. At this level and in these circumstances, the discretionary function exception does not apply. Summers v. United States; supra. See Green v. United States 630 F.3d 1245 Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 54 of 67 Page ID #:2294 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 2011) (Failure to warn not held to involve competing interests). See also Seyler v. United States, 832 F.2d 120, 123 (9th Cir. 1987) (failure to place speed limit sign on reservation road not a policy judgment and thus not covered by discretionary function exception); Faber v. United States, 56 F.3d 1122, 1127-28 (9th Cir. 1995) (applying same analysis to failure to post warning sign by waterfalls), cited in Marlys Bear Medicine, supra. Overson v. US Dept. of Agriculture, Forest Serv., 514 F.3d 989 (9th Cir.2008) c. Gathering collision statistics, and establishing causes of collisions as part of countermeasures. Compiling and analyzing accidents statistics, establishing the causes of accidents, reporting of accidents, traffic engineering and ensuring compliance with the law to eliminate hazards all involve professional and scientific judgment, not decisions of social, economic, or political policy. In re Glacier Bay, 71 F.3d 1447, 1453 (9th Cir.1995) (citing Kennewick 880 F.2d at 1030). d. Failure to coordinate travel planning and travel management to promote road users safety. The network of roads in Angeles National Forest should be managed in a coherent manner in concert with all the authorities that are involved as owners and/or managers and/or easement/right of way owners of the roads in ANF to share information that would presumably include identifying dangerous locations or conditions. It would be dangerously confusing for a road user to drive from a road that is properly signed onto a road that bears similar characteristics but that is not properly signed, as the road user entering the improperly signed road could be led into a false sense of safety. This coordination, already required at the policy level, is one that would require technical skills and as such, is not shielded by discretionary immunity. Kennewick, supra. e. Rescue and Medical assistance In Fang v. United States, 140 F.3d 1238, 1243 (9th Cir. 1998), our Court of Appeal held that the negligence of park service emergency medical technicians in failing Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 55 of 67 Page ID #:2295 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to provide adequate medical care was not the product of judgment driven by the consideration of competing policy‐ based choices. Id. at 1243 ( it “is simply an ordinary judgment made by EMTs in applying their training and expertise to an emergency situation.” Id). There was nothing to weigh or debate in this emergency, life and death situation. The victims were to be treated and promptly evacuated and that did not happen. The USFS personnel did not have to decide who to treat after the local forces arrived. In fact, Mr. Morales was initially attended to by a registered nurse (D41) and then, upon their arrival, by the local force paramedics. The USFS’ failure to organize Mr. Morales’ prompt evacuation robbed Mr. Morales of any chance the “golden hour” might have given him to recover at least sufficiently to allow him to be somewhat functional and to communicate with his loved ones. Instead, the victims were on the ground for over an hour before being discovered; and it had been another 37 minutes before they were transferred in the care of a trauma center that is situated only 17 miles away. f. Discrimination against Plaintiff and road users based on their ethnicity and national origin is not a discretionary function. The USFS has a long-standing pattern of discriminating BTCR road users, a significant portion of which enjoys the recreational areas off of BTCR such as Stoneyvale that are accessible by first using BTCR. P. 54-56. App. 506-507. Soto v. United States; supra. The USFS has failed to ensure the safety of BTCR road users because a significant segment of these road users are immigrants. Discrimination of visitors is not a discretionary function. Nurse; supra. In Nurse, our Court of Appeal remanded the case for a hearing on the discrimination issue. 5. Defendant’s Position: Claims Alleging Negligent Supervision of the County Fall Within the Discretionary Function Exception Kamal contends that Defendant negligently failed to properly supervise County employees with respect to the County’s decisions on the design, maintenance and operation of BTCR. As outlined above, Kamal has failed to present any admissible Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 56 of 67 Page ID #:2296 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence establishing that the County was an agent of the Defendant or that Defendant supervised the County’s use of BTCR. Notwithstanding that fact, even if Kamal could establish such an agency, claims of negligent supervision are covered by the discretionary function exception and, therefore, the court lacks subject matter jurisdiction over that claim. Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000). Kamal relies on Marlys Bear Medicine for the proposition that USFS’ failure to supervise the County’s design, maintenance and operation of BTCR, precludes the use of the discretionary function exception. However, Kamal misapplies that holding to this case. In Marlys Bear Medicine, the Court held that the discretionary function exception did not apply on the grounds that “once the Government has undertaken responsibility for the safety of a project, the execution of that responsibility is not subject to the discretionary function exception. The decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not.” Id. at 1215. As discussed above, it is undisputed that USFS did not implement or participate in the design, maintenance or operation of BTCR. Thus, the decision in Marlys Bear Medicine does not apply here. 5a. Plaintiff’s response to: Claims Alleging Negligent Supervision of the County Fall Within the Discretionary Function Exception. Defendant cites Nurse v. United States for the proposition that claims of negligent supervision are covered by discretionary immunity. Nurse only applies to supervision of employees unlike in this case where USFS failed to exercise any oversight over the actions of the County of Los Angeles to whom USFS granted a right of way and special use permit to construct and maintain BTCR. In Medicine, our Court of Appeal has ruled that the Government’s failure to supervise timbering operations pursuant to contract that required the contractor to comply with "prescribed safety practices and Federal Law" and that gave the Government the power to suspend the contract should the contractor fail to comply with any of its provisions was not a discretionary function, one grounded in policy. The Court of Appeal also noted (1) that the Government regularly inspected Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 57 of 67 Page ID #:2297 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the logging site to ensure "adherence to basic policy and forestry practices”, just as USFS did (though haphazardly) in this case; (2) the complete control that the Government exercised over the timber operations, just as the USFS exercised complete control (though haphazardly) over the design, the construction, the inspection, the maintenance, the repairs and the USFS daily use of BTCR. As Bergdahl testified, the USFS personnel has a vested interest in a safe BTCR. P43. App.212; and (3) the Government’s expertise in safety practices. In this case, the Chief Forest engineer is a civil engineer trained to design and construct various structures, including roads. P4; 197-199; 204. Furthermore, the USFS is well versed in signage as it uses the Manual for Uniform Traffic Devices (after which the CA MUTD is modeled) on roads it owns and that are not the subject of rights of ways. P157B; P157D App.1193-1195. USFS personnel, including the Forest Engineer and the Chief Law Enforcement Officer are perfectly capable of identifying faulty signage. 6. Defendant’s Position: Claims Alleging Intentional Infliction of Emotional Distress Fall Within the Discretionary Function Exception This Court lacks subject matter jurisdiction over Kamal’s claims of intentional infliction of emotional distress because such claims fall within the provisions of the discretionary function exception for the reasons stated above. Moreover, his allegations do not establish extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress. See also, Mattice By and Through Mattice v. United States, 969 F.2d 818, 821-22 (9th Cir. 1992) (court found no evidence of willfulness because the inherent risks of driving on a mountain road are obvious and because no hidden peril existed); Colin v. United States, 2001 WL 776998 (N.D. Cal. 2001). Also see Section C. 7 below. “A defendant's conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant's conduct must be intended to inflict injury or engaged in with the realization that injury will result.” Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 58 of 67 Page ID #:2298 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hughes v. Pair, 46 Cal.4th 1035, 1050-51, 95 Cal.Rptr.3d 636, 651, 209 P.3d 963 (2009). Kamal has not demonstrated that USFS’ conduct, if true, was so extreme as to exceed all bounds of that usually tolerated in a civilized community or that USFS’ conduct was intended to inflict injury or engaged in with the realization that injury would result. Thus, summary judgment should be granted as to Kamal’s claim for intentional infliction of emotional distress. 6a. Plaintiff’s Position: USFS intentionally inflicted severe emotional distress upon Plaintiff “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050—1051 [95 Cal.Rptr.3d 636, 209 P.3d 963]). The facts amply show that the Defendant and its employees especially considering their position of authority, have acted in the most outrageous, indecent way with knowledge that their conduct was directed at the plaintiff and the class to which he belongs as a user of ANF roads, with complete disregard for the plaintiff’s life and safety; that their extreme conduct has inflicted severe emotional distress on the plaintiff and that the emotional distress is the actual and proximate cause of the plaintiff’s injuries. Plaintiff suffered severe emotional distress while on the ground and after. P88-89. 738-749; 1443; App. 735-737; App. 751; 752. When the plaintiff arrived at the hospital, the Chaplain came to see him, further reinforcing his fear his death was imminent. App 1444. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 59 of 67 Page ID #:2299 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Defendant’s Position: The United States, As Landowner, Is Not Liable To Recreational Users Such As Kamal, For Ordinary Vehicular Accidents 1. The Plain Meaning of California’s Recreational Use Statute, Civil Code § 846, Immunizes Landowners For All Non-Exempted Negligence Liability To Recreational Users Under the FTCA, the United States is only liable if a private person would be liable to the claimant in accordance with the law of the place where the act or omission to act occurred, in this case California. 28 U.S.C. § 1346(b); Termini, 963 F.2d at 1265- 66. Under California law, the United States is immunized from civil liability by Civil Code § 846 (otherwise known as the “Recreational Use Statute”) under the same circumstances as a private landowner. Mansion v. United States, 945 F.2d 1115, 1117 (9th Cir. 1991). Section 846 confers broad tort immunity upon landowners who allow the public access to their land for recreational use. In relevant part, the statute provides: An owner of any estate or other interest in real property… owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in this section. The statute further specifies that “[n]othing in this section creates a duty of care or ground of liability for injury to person or property.” Id. There are two preconditions to § 846 immunity: (1) the defendant must be the owner of an estate or any other interest in real property, whether possessory or nonpossessory; and (2) the plaintiff’s injury must result from the entry or use of the premises for any recreational purpose. Ornelas v. Randolph, 4 Cal.4th 1095, 1100, 17 Cal.Rptr.2d 594, 597, 847 P.2d 560 (1993). The purpose of § 846 is to encourage landowners to make their land available to the general public for recreational purposes. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 60 of 67 Page ID #:2300 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Phillips v. United States, 590 F.2d 297, 299 (9th Cir. 1979); Casas v. United States, 19 F.Supp.2d 1104, 1106 (C.D. Cal. 1998). The scope of § 846 extends to all of a landowner’s properties opened to recreational use, including paved public roads. Mattice, 969 F.2d at 821-22. Section 846 also encompasses improved streets. Delta Farms, 33 Cal.3d at 706-07, 190 Cal.Rptr. at 499. Section 846 contains three exceptions to its broad protection from liability. It does not limit liability “for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” for injuries suffered by recreational users who paid for access to the property, or to persons who were expressly invited onto the property. 2. Defendant’s Position: Since Kamal Was Recreating at the Time of the Accident, the United States is Immune From Liability Under § 846 Kamal’s lawsuit falls within the plain scope of § 846. Kamal was engaged in a recreational use – motorcycle riding – at the time of the accident on USFS property. Kamal travelled the route on BTCR in order to meet with friends. Kamal depo., (1/21/16), 61:19-62:3; Appendix, pp. 95-96; Kamal depo. (4/25/13), 27:22-28:20; Appendix, pp. 85-86. Mattice, 969 F.2d at 821 (“Mattice came to the park to congregate with friends at a picnic area. That activity clearly falls within the scope of the statute (Section 846)”)). Likewise, no express exceptions to Section 846 are applicable. Kamal was not invited on the land and did not pay USFS for entry or use of the property. Kamal depo., 122:19-25. Nor is there evidence demonstrating that there was a “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” Kamal relies on Termini for the proposition that the recreational use statute does not apply when the USFS fails to abide by its own regulations regarding sign placement. In Termini, the court held that the United States engaged in willful and malicious behavior that was not protected under the recreational use statute because, unlike our case, the USFS Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 61 of 67 Page ID #:2301 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constructed and maintained the subject dirt road, which was within USFS’ jurisdiction. In addition, the design defect involved a precipice that ended at the cliff’s edge. In addition, the cliff was not visible to a motorist on approach, such that it presented actual or constructive knowledge of the peril to be apprehended. The Court, however, distinguished between the inherent danger of mountain roads in general and the hidden danger of that particular road, finding that the presence of an unmarked, unforeseeable danger raised the government’s failure to warn to the level of willful misconduct. Id. at 1267; see also, Mattice, supra (court found no evidence of willfulness because the inherent risks of driving on a mountain road are obvious and because no hidden peril existed); Colin v. United States, 2001 WL 776998 (N.D. Cal. 2001). In the parallel Los Angeles County Superior Court proceeding, the California Court of Appeal held that “a public entity has no duty to post signs warning of readily apparent natural topography in order to avoid creating a dangerous condition of public property (citing Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App. 3d 1, 7. Highways are normally adapted to the natural geographic feature of the lay of the land.” Kamal v. County of Los Angeles et al. Exhibit 11. Appendix pp. 1501-1527. In our case, the parties agree that USFS did not maintain, design or control BTCR. In addition, the alleged road defects involved winding mountain roads that presented an inherent danger versus a hidden danger. Therefore, Kamal has not demonstrated that the United States willfully or maliciously failed to guard or warn against a dangerous condition. Thus, under the plain language of the statute, the USFS, if a private landowner, would be protected from liability under § 846. 3. Plaintiff’s response to: “The United States, As Landowner, Is Not Liable to Recreational Users Such As Kamal, For Ordinary Vehicular Accidents BTCR’ dominant use is public travel. BCR has long become a major collector. P52A, P52B. BTCR road users include (1) commuters driving from Los Angeles to Antelope valley; (2) forest visitors on their way to recreational areas such as Vogel Flats Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 62 of 67 Page ID #:2302 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Stoneyvale and (3) road uses on their way to a private property such as Newcomb Ranch. The plaintiff entered BTCR intending to meet friends at Newcomb Ranch, a private property. He had no other way to get there by motorcycle from Los Angeles than to drive on BTCR. P197B App. 711; P53 App. 542. The purpose of § 846 is to encourage landowners to make their land available to the general public for recreational purposes. “The legislature could not have intended to remove tort protection against road defects to all road users that travel for a purpose other than recreational as to do so would contravene the recreational statute purpose which is to encourage landowners to allow the public to use a land that would otherwise be closed to it”. Seyler v. United States. 832 F.2d 120 (9th Cir. 1987) (“such a result is clearly absurd”). California courts generally apply a three-part test to assess whether a landowner's actions constitute willful and malicious behavior under section 846. Under this test, the courts look for the following " 'essential elements ... [which] raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.' " New v. Consolidated Rock Products Co., 171 Cal.App.3d 681, 217 Cal.Rptr. 522, 526 (1985) (quoting Morgan v. Southern Pacific Transportation Co., 37 Cal.App.3d 1006, 112 Cal.Rptr. 695, 698 (1974)); see also Charpentier v. Von Geldern, 191 Cal.App.3d 101, 236 Cal.Rptr. 233, 240 (1987). The facts amply show that USFS and its employees knew of the dangerous condition of BTCR (they created it and encouraged its creation); they had constructive knowledge; they knew that injury was probable; yet they willfully failed to warn the plaintiff of the danger. Termini v. United States See 963 F. 2d 1264 (9th Cir. 1992) (USFS conduct in designing and maintaining a road on which appellant suffered collision is a malicious behavior, precluding recreational immunity). /// /// Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 63 of 67 Page ID #:2303 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Plaintiff’s Position: Morales is not the sole cause of the Plaintiff’s injuries a. USFS Actions are a substantial factor in causing Plaintiff’s injuries. A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm. California Civil Jury Instructions (“CACI”) 430. As phrased, this definition of “substantial factor” subsumes the “but for” test of causation, that is, “but for” the defendant’s conduct, the plaintiff’s harm would not have occurred. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d 913, 819 P.2d 872]. USFS actions and omissions in this case are at minimum a substantial factor in causing the plaintiff’s harm. b. Morales actions are not a superseding event. ‘Third party negligence which is the immediate cause of an injury may be viewed as a superseding cause when it is so highly extraordinary as to be unforeseeable… “The It must appear that the intervening act has produced “harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible. Foreseeability is a question for the jury unless undisputed facts leave no room for a reasonable difference of opinion (Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 417 [119 Cal.Rptr.3d 366]). In this case it was largely foreseeable that the very kind of collisions and injuries that occurred in this case would occur. c. CHP Officer Sherman investigation and Traffic Collision Report (“TRC”). 1. Objection (Sherman): i. to Exh. 9 of Joint Appendix of Evidence, p. 10-13 of TRC, App. 77-80, “Supplemental Narrative”).FRE 401; 403, 801. ii. Deposition Testimony: hearsay; Lacks foundation; speculation; fails to state grounds; hearsay; illegal; confusing. d. Sherman’s investigation does not comport with the California Collision Investigations Manual. CHP Officer Dustin Sherman arrived over two hours after dispatch and spent only 15 minutes at the scene and stayed only 15 to 20 minutes. P199A, P199B. App. 660,661, Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 64 of 67 Page ID #:2304 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 669. He did not “really” inspect the road. P200A. App. 671. Sherman’s determination that Morales is entirely at fault for violating the basic speed law rests on a photograph of the speedometer belonging to Morales’ motorcycle. The needle of the speedometer, which was found detached from Morales’ motorcycle somewhere “near” the motorcycle, was allegedly “stuck” at 65 MPH. Officer Sherman, who has no training in the matter (P200C, App. 670) speculates from then on. (“I felt that it was an indication that when the collision happened the speedometer had been sheared off the vehicle and had been stuck at what possibly he might have been traveling at the time” and “there is no way I can absolutely without certainty, you know, sit here and say that’s, you know, precisely the speed he was at. To me it just indicates the speedometer was sliced off at the time of the collision, which game me an indication it’s possible that was the speed he was traveling.” P200B App. 671; P200A 663, 663a. Sherman admitted that he has no training to conclude to a specific speed based on a detached speedometer which needled is stuck at a speed. P200C App. 671. Expert witness for USFS, Eric Dyerl and expert witness for Plaintiff both agree that little validity can be given to the fact the needled of the speedometer was found stuck at 65 MPH. P. 200G App. 1322; P200H App. 1479. In his report, Officer Sherman also partially bases his determination of speed on an alleged witness statement (“Hernandez”) that he (Hernandez) was leading the motorcyclist pack that Morales joined at a speed of 60 MPH. However, Hernandez denied that he told Sherman that he was riding at 60 MPH. P200E App. 1125. Interestingly, Officer Sherman admits that speed does not necessarily determine that “that was the cause of the accident”. P201. App. 665. The plaintiff’s expert witness, a CHP Sergeant who retired after a long career as a patrol officer and a collision investigator, also rebuts Officer Sherman’s report for failure to follow CHP procedures governing investigations of traffic collisions. P205. App. 1324 Interestingly, USFS, when asked, cannot vouch for Officer Sherman’s report as being accurate, though its employees were the first responders at the scene. P204. App.330; 354. Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 65 of 67 Page ID #:2305 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e. Objection: Deyerl Report (Fed.R.Evid. 702, 703, 801; Lacks foundation; speculation as regards the causes of the collision, road condition and traffic safety issues; Deyerl Deposition (Id.) f. Defendant’s Position Regarding Causation Notwithstanding the fact that Morales caused the accident when he negligently rode his motorcycle into the oncoming lane of traffic, it has little bearing on the issues presented in Defendant’s motion. While causation is a critical factor in determining damages, it is not determinative of whether: (1) Defendant owed Kamal a duty of due care; (2) the discretionary function exception applies; or (3) the recreational use statute applies. VII. DEFENDANT’S CONCLUSION For the reasons stated herein, Defendant United States of America respectfully asks this Court to grant summary judgment as a matter of law. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 66 of 67 Page ID #:2306 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VIII. PLAINTIFF’S CONCLUSION Defendant’s Motion for Summary Judgment should be denied and the Plaintiff’s motion should be granted. Dated: November 10, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ Keith M. Staub KEITH M. STAUB Assistant United States Attorney Attorneys for Defendant United States /s/ Dalila Kamal-Griffin DALILA KAMAL GRIFFIN Plaintiff’s Attorney Case 2:15-cv-01585-FMO-JC Document 74 Filed 11/10/16 Page 67 of 67 Page ID #:2307 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section KEITH M. STAUB Assistant United States Attorney California Bar Number 137909 Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7423 Facsimile: (213) 894-7819 E-mail: keith.staub@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA KARIM CHRISTIAN KAMAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. No. CV 15-1585 FMO (JCx) Hearing Date: December 8, 2016 Hearing Time: 10:00 a.m. Courtroom: 22 Hon. Fernando M. Olguin STATEMENT OF UNCONTROVERTED FACTS Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 1 of 325 Page ID #:2308 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNDISPUTED FACTS DEFENDANT’S UNCONTROVERTED FACTS Fact # Statement of Fact Citation To Admissible Evidence Opposing Party’s Response to the Asserted Undisputed Facts Citation to Admissible Evidence Supporting the Party’s Assertion of the Disputed Fact D1 The mission of the USFS is carried out by means of a management philosophy devoted to the principle of balancing multiple uses of forest resources and which is designed to provide a wide variety of opportunities for outdoor activities and pursuits. 16 U.S.C. §§528-531. Undisputed D2 The administration of National Forests are contained in the Forest Service Manual (“FSM”), issued by the Forest Service’s central office in Washington, D.C. Travel management guidelines are found in Title 7700 of the FSM. See Exhibits 2-5; Bergdahl decl., ¶ 9. App. 8. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 2 of 325 Page ID #:2309 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D3 FSM 7703.3, subsection 5, states that roads authorized by a legally documented right-of- way held by a state, county, or local public road authority are under the jurisdiction of those other entities. Depending on the circumstances the forest service may also share some level of jurisdiction. Ex. 2. App. 36 Undisputed. D4 FSM 7716.22 establishes that when a state, county, or local public road authority holds a legally documented right-of-way, such roads are not Forest System roads. Ex. 3. App. 37 Undisputed D5 FSM 7715.72, entitled “Road and Trail Jurisdiction and Coordination,” tells USFS: “Do not manage, Ex. 4. App. 38 Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 3 of 325 Page ID #:2310 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 maintain, or designate roads and trails over which the Forest Service lacks jurisdiction.” D6 FSM 7703.3, subsection 2, directs USFS to transfer jurisdiction over a Forest Service road to the appropriate public road authority. Ex. 5. App. 39 Disputed (The term “Forest Service Road” has not been defined. This section refers to National Forest System Roads (“NSF”) as that tem is defined in Section 7705. This section applies to existing NFS roads, not roads yet to Objection. Irrelevant. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 4 of 325 Page ID #:2311 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be constructed). D7 USFS issued a special use permit covering a 10 mile right of way for BTCR to the County in or about 1930. Deposition of Graham Breakwell, 9:3-19, 13:7- 8; Ex. 6. App. 140, 143 Undisputed D8 The permit was amended on May 17, 1943. Id. at 11:18- 12:7, 13:11- 13; Ex. 7. App. 43, 141- 143 Disputed. Exh.DKG 6. App. 287- 295. (The 1943 permit does not state whether it replaces, amends or revokes the 1930 permit. The amendments stated on the permit are subsequent to the issuance of Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 5 of 325 Page ID #:2312 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the 1943 permit.) D9 According to the permit, the County had sole discretion to design, maintain and operate BTCR. Id. at 15:19- 16:4. App. 144-145. Disputed. Id. The permit does not state so. (Permit states that the design to be reviewed by Regional Forester; maintenance to be satisfactory to Forest Supervisor; USFS may terminate permit for cause) D10 The 1930 special use permit covers the road in which the motorcycle accident occurred on April 17, 2011. Bergdahl decl., ¶ 8. App. 8 Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 6 of 325 Page ID #:2313 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D11 The permit states: “Permission is hereby granted to the Los Angeles County Road Department, Hall of Records, Los Angeles, California, to use the following described lands… [f]or the purpose of constructing and maintaining thereon a road … subject to the following conditions. The permittee (County) shall fully repair all damage, other than ordinary wear and tear, to roads and trails in the National Forest caused by the permittee in the exercise of the privilege granted by this permit. The road shall at all times be open to the free use of Forest Officers and the public. Ex. 6, p. 1. App. 40-41 Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 7 of 325 Page ID #:2314 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This road shall be kept in a passable condition during all seasons of the year. D12 On May 17, 1943, the USFS issued a special use permit to the Los Angeles County Road Department, granting the County a right-of-way “for the purpose of constructing and maintaining a public road” on BTCR. Ex. 7. App. 43. Undisputed D13 The 1943 amended permit covers the road in which the motorcycle accident occurred on April 17, 2011. Bergdahl decl., ¶ 8. App. 8. Undisputed D14 These permits required the County to comply with all Federal, State and County laws, rules and regulations including regulations of the Department of Agriculture governing Breakwell depo., at 17:15-23. App. 146. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 8 of 325 Page ID #:2315 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the administration and protection of the National Forests. D15 The USFS does not direct the County as to how to maintain their roadways under the permit. Id. at 26:14- 27:5. App. 150-151. Undisputed (provided as stated at meet and confer that no legal conclusion is drawn regarding USFS liability to properly manage its property and to address safety issues regarding BTCR). See generally USFS Possession, Use and Control of Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 9 of 325 Page ID #:2316 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BTCR below: P12, P13, P14, P15, P16, P18,P19, P20, P21, P22 below (USFS Possession and control of BTCR) D16 BTCR is operated by the County Department of Public Works pursuant to the special use permit. Declaration of Sonja Bergdahl, ¶ 7. App. 8. Id. at D15 above Objection. FRE 401, 403. (Lacks foundation; incompetent; mis; confusing) D17 The County operates, designs, installs signs on, and maintains BTCR. Id. at 10:7-13, 20:6-14. App. 127, 134. Disputed to extent USFS implies USFS has no role, duty and authority to cause County to design, post Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 10 of 325 Page ID #:2317 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and maintain signs on BTCR. See P16 below (indicating USFS caused County to post signs). Exh.DKG 19 which is USA Supplementa l Responses to Kamal’s First Request for the Production of Documents App.540. (USFS made County put up signs to address a hazardous Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 11 of 325 Page ID #:2318 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 traffic- related issue ). D18 USFS has no role in maintaining or operating BTCR. Deposition of Sonja Bergdahl, 14:2-5. App. 129. Id. at Id. at D15 and D17 above. D19 USFS does not inspect roads that are not owned and operated by USFS. Id. at 15:14- 17, 21:8-14. App. 130, 135. Disputed. See P127A,128 below. Exh.DKG 17. App.543- 547 D20 USFS relies on the expertise of County engineers in the design and maintenance of County roads and does not impose any standards on the County. Id. at 17:9-17, 18:14-19:11. App. 131-133. Id. at D15 and D19 above. (USFS has conducted inspections in the past to ensure proper construction; 1943 permit requires Id. as 15. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 12 of 325 Page ID #:2319 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compliance with laws) D21 The County Road Department maintained, designed, constructed and installed road signs on BTCR. Ex. 8 (County’s response to Kamal’s interrogatories , California Superior Court Case No. EC058265); Deposition of Craig Cline, 35:24-36:2; Deposition of John Squier, 15:16-16:23, 26:6-13, 30:21-31:10; 31:11-32:2. App. 54-55. Id at D15 above. D22 The design of BTCR was approved by the Los Angeles County Board of Supervisors. Id. App. 54- 55. Disputed. P30A below. https://www. municode.co m/library/ca/ los_angeles_ Objection: FRE 403 Code 2007 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 13 of 325 Page ID #:2320 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 county/codes /code_of_ord inances?nod eId=CHCOL OAN_ART VIIRODE; Exh. DKG 45, App. 1177 (Los Angeles County Road Commission er has had authority over road construction matters since 1912) D23 The County handles traffic control requests generated by the public and other agencies including traffic signals, stop signs and traffic control devices. Deposition of Arnel Dulay, 9:17-10:22. App. 168-169. Id. at D15 above Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 14 of 325 Page ID #:2321 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D24 The County Operations Services Division is responsible for maintaining the inventory for road signs on County roads such as BTCR. Id. at 22:22- 25:21. App. 170. Id. at D15 above Id. D25 The County’s Department of Public Works (“DPW”) installs signs, markings and other traffic control devices pursuant to the California Manual on Uniform Traffic Control Devices, DPW’s guidelines and policies, and the engineering judgment of DPW staff. Id. at 25:6-21. App. 170. Undisputed D26 The County reviews a road’s collision history to identify if there are any collision patterns that would warrant a traffic study to determine whether to implement Id. at 27:6- 28:9. App. 171. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 15 of 325 Page ID #:2322 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 additional road signage or traffic control devices. D27 Kamal has ridden motorcycles since he was a child. Deposition of Karim Kamal (1/21/16), 46:3-6. App. 89. Undisputed D28 After he arrived in the United States in 2009, he rode motorcycles 4 to 5 times per week. Id. at 46:24- 47:9. App. 89- 90. Undisputed D29 He rode his motorcycles at a race track where he was classified in the expert group of riders. Id. at 47:22- 48:8. App. 90-91. Undisputed D30 Kamal underwent motorcycle training conducted by the CHP in 2009. Id. at 50:9-14. App. 92. Undisputed D31 Prior to this accident, Kamal rode his motorcycle for recreational purposes about 70% of the time (30% of the time for business). Id. at 51:6-17. App. 93. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 16 of 325 Page ID #:2323 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D32 He often rode in the Santa Monica Mountains, some of which included winding mountain roads. Id. at 51:18- 52:17. App. 93-94. Undisputed D33 He considered himself experienced in riding on winding mountain roads. Id. at 52:18- 21. App. 94. Undisputed D34 On April 17, 2011 between 1:30 p.m. and 1:45 p.m., Kamal was riding his motorcycle eastbound on BTCR when another motorcyclist, Samuel Morales, driving in the opposite direction, “failed to negotiate the blind turn, came out of his lane, crossed over into Plaintiff’s lane at a speed higher than the turn could sustain and collided with Plaintiff while Plaintiff was on his lane.” FAC, ¶ 24. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 17 of 325 Page ID #:2324 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D35 Kamal was on his way to meet some friends at the Newcomb Ranch Restaurant at the time of the accident. Kamal Depo. (1/21/16), 61:19-62:3; Kamal depo. (4/25/13), 27:22-28:20. App. 85-86, 95-96. Undisputed D36 Immediately following the collision, Kamal’s attempt to call 911 was unsuccessful because there was no cell phone reception in the area. FAC, ¶ 68. Undisputed D37 A USFS fire engine came upon the accident scene while responding to another emergency elsewhere. Deposition of David Gonzalez (“Gonzalez”), 8:6-9. App. 85-86. Undisputed D38 On arrival, Gonzalez observed the two motorcyclists lying in the road. Id. at 8:10-16. App. 116. Undisputed D39 Gonzalez telephoned USFS dispatch about the accident and began Id. at 10:5-20. App. 117. Disputed Disputed as to “began Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 18 of 325 Page ID #:2325 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administering first aid to Kamal. administerin g first aid”. See P99 below (Post Collision Assistance) A. Exh.DKG 22 (Kamal Depo. 109: 24-25, 110, 117:21-23) App. 740- 741; 748. Exh.DKG 38 (Hernandez Deposition Transcript at 30:10-24) App. 1121 D40 Another USFS firefighter, Ignacio Pizano, managed the accident scene and Id. at 25:13- 17. App. 119. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 19 of 325 Page ID #:2326 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 communicated with dispatch. D41 A private citizen who was a registered nurse was at the accident scene and administered first aid to Morales. Id. App. 119. Undisputed D42 Within 7 minutes of USFS firefighters’ arrival, Los Angeles County Fire Department personnel arrived and, soon thereafter, Los Angeles Fire Department paramedics arrived. Id. at 15:11- 15, 27:10-25. App. 118, 120. Undisputed. D43 Both patients were placed on backboards and flown to Providence Holy Cross Trauma Hospital via a Los Angeles County helicopter. Id. at 32:13- 33:21. App. 121-122. Undisputed D44 After conducting an investigation of the accident, the investigating CHP officer, Dustin Sherman, Deposition of Dustin Sherman (4/18/13), 16:6-17:4, Disputed Exh.DKG 19 (Sherman Depo. at 50:3-5 “I Objection: FRE 401, 403 (confusing; lacks foundation; incompetent; legal Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 20 of 325 Page ID #:2327 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 concluded that Mr. Morales was entirely at fault for the collision because he crossed over the solid double yellow lines into the opposing traffic lane. 40:14-41:4, 59:2-20, 62:22-63:22; Ex. 9. App. 80, 155-158, 163-165. indicated California Vehicle Section 2350 as a cause of the collision.” App. 664. conclusion; assumes facts not in evidence; misstates the testimony; misstates evidence).FRE 801 (Hearsay). D45 Officer Sherman testified: “Q Did you identify in your report a speed at which he was estimated to be traveling? A I don't recall. Can I look in my report to see what I wrote down in there? Q Yes. A So on COLA 81, line 6, I identified that Party #1 was traveling approximately 65-to-70 miles an hour at the time of the collision. Id. at 41:5- 43:23. App. 158-160. Undisputed Objection: FRE 401, 403, 801 Lacks foundation; Speculation; hearsay; incompetent.” See P200A-200C below. See Exh. DKG 19 (Sherman deposition testimony at 89:20-25: “there is no way I can absolutely without certainty, you know, sit here and say that’s, you know, precisely the speed he was at.”) Exh.DKG 22, App. 671. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 21 of 325 Page ID #:2328 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q Okay. How did you come up with that particular speed range? A Based on evidence and witness' statements. Q Okay. What evidence would have led you to believe that that was the speed range? A There was -- Vehicle 1's speedometer was found on the ground….“I felt that it was an indication that when the collision happened the speedometer had been sheared off the vehicle and had been stuck at what possibly he might have been traveling at that time” And (Sherman Deposition) (no training to reach conclusion as to speed based on detached speedometer). App 671. D46 Sherman testified: Q: Now, at the very last page of the traffic Id. at 49:23- 50:5. App. 161-162. Undisputed Objection. Id. at D45. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 22 of 325 Page ID #:2329 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 collision report under "Narrative Supplemental", there is a section called "Cause". Can you indicate for us what you meant by Violation of California Vehicle Code Section 22350? A: I indicated California Vehicle Code Section 22350 as a cause of this collision based on Party #1's speed, trying to negotiate the curvature of the roadway. D47 The road travelled by both Kamal and Morales up to the accident site contained several road signs depicting the speed limit and road curvature. Ex. 1, Superior Court Complaint, ¶¶ 17, 18, and 44. App. 14, 20. Undisputed to extent that this fact refers to signage up to but not including the subject turn that was not marked or warned of on Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 23 of 325 Page ID #:2330 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 either side. P172D and 172 G; 173, 174 D48 USFS provides limited emergency medical response for USFS employees injured in remote areas of the National Forest. Deposition of Robert Garcia, 9:6-15. App. 109. Undisputed. D49 If USFS personnel encounter an accident on a roadway, they immediately notify the nearest EMS response team that has jurisdiction over the location. Id. at 9:16-23. App. 109. Undisputed D50 USFS personnel will then administer first aid until the local authorities (County or City of Los Angeles) with jurisdiction arrive on scene. Id. at 10:7-13, 23:3-19. App. 110-111. Undisputed D51 Dan Briot testified that traffic laws in the ANF Deposition of Daniel Briot, Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 24 of 325 Page ID #:2331 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are primarily enforced by the CHP. 12:13-13:6. App. 100-101. D52 Daniel Briot testified that traffic laws also may be enforced by the County sheriff and USFS law enforcement officers, and traffic enforcement is not USFS’ primary responsibility. Id. App. 100- 101. Undisputed D53 USFS is not always notified by other agencies about traffic accidents in the Angeles National Forest. Id. at 16:4-22. App. 102. Undisputed ( provided as stated at meet and confer that no legal conclusion is drawn regarding USFS duty, if any, to keep informed) . See P8 below. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 25 of 325 Page ID #:2332 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D54 USFS does not conduct traffic accident investigations. Instead the CHP performs such investigations. Id. at 24:1-3, 28:5-25. App. 103-104. Undisputed (provided as stated at meet and confer that no legal conclusion is drawn regarding USFS duty to investigate collisions). See P8 below. . DEFENDANT’S CONCLUSIONS OF LAW 1. Kamal Cannot Meet His Burden of Establishing Negligence Because Defendant Did Not Owe Plaintiff a Duty to Design, Operate and Maintain BTCR. Thompson v. United States, 592 F.2d 1104, 1109 (9th Cir. 1979); Chidester v. United States, 646 F. Supp. 189, 194 (C.D. Cal. 1986); Buck v. United States, 133 F.3d 925, at *3 (9th Cir. 1998) (unpublished). 2. Kamal’s Allegations Fall Within the Discretionary Function Immunity. 28 U.S.C. § 2680(a); Dalehite v. United States, 346 U.S. 15, 18 (1953); United States v. Gaubert, 499 U.S. 315, 323-24 (1991); Berkovitz v. United States, 486 U.S. 531, 536 (1988); Kennewick Irrigation District v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989); Blackburn v. United States, 100 F.3d 1426, 1430 (9th Cir. 1996); Terbush v. United States, 516 F.3d 1125, 1135 (9th Cir. 2008); Valdez v. United States, 56 F.3d 1177, Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 26 of 325 Page ID #:2333 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1180 (9th Cir. 1995) 3. Claims Alleging Negligent Supervision of the County Fall Within the Discretionary Function Exception. Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) 4. The United States, As Landowner, Is Not Liable To Recreational Users Such As Kamal, For Ordinary Vehicular Accidents. Cal. Civil Code § 846; Ornelas v. Randolph, 4 Cal.4th 1095, 1100, 17 Cal.Rptr.2d 594, 597, 847 P.2d 560 (1993); Mattice By and Through Mattice v. United States, 969 F.2d 818, 821-22 (9th Cir. 1992). PLAINTIFF’ UNCONTROVERTED FACTS FIELD ORGANIZATION P1 The field organization of the Forest Service consists of regions, stations, and areas as described below: a) Regions of the National Forest System. For the purpose of managing the lands administered by the Forest Service, the United States is divided into nine geographic regions of the National Forest System. Each region has a headquarters office and 36 CFR 200.2. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 27 of 325 Page ID #:2334 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is supervised by a Regional Forester who is responsible to the Chief for the activities assigned to that region. Within each region are located national forests and other lands of the Forest Service. (1) National Forests. Each Forest has a headquarters office and is supervised by a Forest Supervisor who is responsible to the Regional Forester. Each Forest is divided into Ranger Districts. (2) Ranger districts. Each district may include a portion of a national forest, a national grassland or portion thereof, a national recreation area, a wilderness or primitive area, and other lands Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 28 of 325 Page ID #:2335 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administered by the Forest Service. Each district has a headquarters office and is supervised by a District Ranger (or Area Ranger in some cases) who is responsible to the Forest Supervisor. P2 The ranger district for the area where the collision occurred is the Los Angeles River. http://www.fs.usda. gov/detail/angeles/ about- forest/districts/?cid =stelprdb5173086. Exhibit 1 of the attached Declaration of Dalila Kamal- Griffin in Support of Plaintiff Kamal’s Opposition to Defendant USA MSJ and in Support of Plaintiff’s MSJ (“Exh.DKG”) at page 205 of the Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 29 of 325 Page ID #:2336 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attached joint appendix of evidence (“App.”) P3 The USFS states: “Forest supervisors direct the work of district rangers. This level coordinates activities between districts, allocates the budget, and provides technical support to each district. The district ranger and his or her staff are often visitors first point of contact with the Forest Service. Most of Angeles National Forest boots on-the-ground activities occur on the ranger district”. http://www.fs.fed.u s/about- agency/organizatio n; Exh.DKG 2 App.206. Undisputed P4 The duties of Forest Engineer include overseeing and supervising the engineering department Exh.DKG 3 (Bergdahl. Depo. at 6:22-25, 7:1-6, 8:21-25; 9:1; Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 30 of 325 Page ID #:2337 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the forest, including matters relating to roads under the Forest Service jurisdiction and including monitoring contracted construction crews to make sure plans are being followed and going to areas to investigate existing conditions. 13:14-23) App.210, 211, 212; 213; 217. Exh.DKG 5 (Forest Service description of duties) http://www.fs.usda. gov/Internet/FSE_ DOCUMENTS/stel prdb5410799.pdf). App.248. P5 The Special Use Permit Administrator for the Los Angeles River District of Angeles National Forest (“ANF”) duties are to manage documents relating to easements, permits and leases. (Exh.DKG 6 (Breakwell Depo. at 5:14-19; 6:19- 22; 7:3-9) App.252; 253; 254 Undisputed POSSESSION, OWNERSHIP AND CONTROL P6 Angeles National Forest (“ANF”) is United States Exh.DKG 6 (Exhibits 1 and 2 of Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 31 of 325 Page ID #:2338 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 property. Breakwell Depo.) App. 284, 287. P7 Big Tujunga Canyon Road starts within the limits of the City of Los Angeles and ends where it intersects with Angeles Forest Highway. Exh.DKG (USA Supplemental Responses to Plaintiff Karim Kamal’s First Request for the Production of Documents (USA Supp. First RPD (00088, Crescenta Valley Policing area); App. 542 Exh.DKG 10 (City of LA ETS) of DKG Decla App.299; 314; Exh.DKG 11 (Google map) App. 316. Undisputed P8 A. The Forest Service Manual states: ”The Forest Service Manual (FSM) contains legal authorities, objectives, A. Exh.DKG 43 App.1152 Disputed. Unsupported by admissible evidence. See Exhibits 2-5; Bergdahl decl., ¶ 9. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 32 of 325 Page ID #:2339 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service line officers and primary staff in more than one unit to plan and execute assigned programs and activities.” B. USFS has investigation and reporting procedures in place. B. Exh.DKG 11 (Safety and Health Program Handbook Section (“SHH”) pages 2-4, Section 35 (Rogs. 017-19) App.340-342); Exh.DKG 11 (SHH at Section 36, p. 0020, App.343 Exh.DKG 11 (FSM 6731.5 p. 004, 017 App. 337 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 33 of 325 Page ID #:2340 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. USFS policy is to investigate and report all accidents resulting in death or serious injury to visitors with the objective to prevent similar accidents by determining the cause of the accident. D. A team appointed by the Regional Forester, Station Director or Area Director shall investigate all accidents with potential or serious consequences. E. The Forest Supervisor must be notified in case of a fatality. F. FSM mandates notification of the Washington Office in case of the death of a C. Exh.DKG11 (FSM 6730.2, 6730.3) App.335 D. Exh.DKG11 (FSM 6731.3) App. 337. E. Exh.DKG 4 (Dumpkis Depo. 14:23-25, 15:14- 22). App.242, 243. F. Exh.DKG 11 6732.11 (p. 005) App.338 . Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 34 of 325 Page ID #:2341 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 citizen where USFS is involved. G. SHH states that accidents involving serious personal injury require accident investigation reports in addition to being reported; that at a minimum, the first and second line supervisor shall review and discuss each accident to identify the cause(s) and that, using the information in the report, the review team shall develop its recommendations to prevent or mitigate the damage or injury which occurred within a time frame. H. A thorough review of factors involved in an accident can identify the G. Exh.DKG11 (SHH at Sec.36, p. 020) App. 343; Exh.DKG 11 (SHH p. 023) App. 340, 343, 344, 345. H. Exh.DKG 11 (Sec. 37) App. 344. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 35 of 325 Page ID #:2342 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 true cause(s) of the accident. P9 The USFS Corridor Management Plan for Angeles Crest Scenic Byway, State Route 2 states: “ Responsibilities of maintaining the large network in Angeles National Forest is shared between Caltrans, Los Angeles and San Bernardino County Road Departments, and the Forest Service http://www.fs.usda. gov/Internet/FSE_ DOCUMENTS/fsb dev3_019912.pdf; App.257, 265. Exh.DKG 9 (Angeles Crest Highway Corridor). App. 325 Disputed See D3 to D6; D9, D11, D14 to D26 above P10 USA granted COLA two special use permits for the construction and maintenance of Big Tujunga Canyon Road: a first permit was granted in 1930 covering the lower part of BTCR; a second permit was granted in 1943 covering the upper part of BTCR. Exh.DKG 11 (USA responses to Karim Kamal’s (“Kamal”) First Interrogatories (“First Rogs”), Rog. 4) App.328 Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 36 of 325 Page ID #:2343 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P11 The 1943 permit does not state whether it amends, revokes or replaces the 1930 permit. Exh.DKG 6 (1943 Permit) App. 287- 295 Undisputed. P12 In the 1930 and 1943 permits, USA retained the right to use the road for the administration of ANF. Exh.DKG 6 (1930 and 1943 permit). App.285, 288. Undisputed P13 That right is unrestricted. Id. Undisputed P14 USA law enforcement officers have the authority to enforce traffic laws on BTCR. Exh.DKG 14. (Briot Depo. 11: 2- 13; 12:18-22; 13:1- 6. App. 409, 410, 411 Undisputed P15 USA employees have an interest in driving on safe roads in the performance of their duties. Exh.DKG 3. (Bergdahl Depo. 21:13-22) App. 225 Undisputed P16 A. On June 14, 1983, USFS District Ranger David Haney wrote T.A. Tidemanson, Los A. Exh.DKG 19 (USA Supplemental Responses to Undisputed that this is what the letter states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 37 of 325 Page ID #:2344 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Angeles County Road Commissioner a letter stating:” Dear Mr. Tidemanson: For some time, the USDA, Forest Service, and the County of Los Angeles’s Sheriff’s and Fire Departments have been experiencing traffic control problems along the following roads: Ottie, Doske, Vogel Flats, and Stonyvale roads. These roads are all operated by the Los Angeles County Road Department under special use permits or easements from the USDA, Forest Service, to the County of Los Angeles. Since the Memorial Day week-end and the continuing warm Kamal’s First Request for the Production of Documents (“USA Supp. First RPD”, 0086-87). App.540. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 38 of 325 Page ID #:2345 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 weather, these areas have experienced very heavy use, and emergency and maintenance vehicles have had difficulty in performing their duties. In order to better manage these areas, we request your assistance in immediately restricting parking in the following specified areas: No parking at all times along Ottie, Doske, and Vogel Flats Road. No parking at all times along Stonyvale Road in the following locations: Both sides of road between Selta Flats Parking Lot (USFS) and 3150 Stonyvale Road. Along the north side of Stonyvale between La Paloma Flats Road and Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 39 of 325 Page ID #:2346 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vogel Flats Campground. The above areas are shown on the enclosed map, and have been discussed with Mr. Tom Sorrentino of the Traffic and Lighting Investigation Section of the Road Department and Mr. Wolfgang Tamm of the USDA, Forest Service, on June 14, 1983. It is our desire to have the roads immediately closed to parking on an emergency order until a permanent parking ordinance is passed….. Your immediate attention to this hazardous situation and your assistance in posting the areas to no parking prior to June 30, 1983 will be greatly appreciated. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 40 of 325 Page ID #:2347 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sincerely, David Haney District Ranger Enclosure”. B. On June 24, 1983, T.A. John C. Beke, Assistant Chief Deputy, County of Los Angeles Road Department wrote a letter to Mr. David Haney, stating as follows: “Dear Mr. Haney: OTTIE ROAD, DOSKEY ROAD, VOGELS FLATS ROAD AND STONYVALE ROAD NO PARKING REGULATIONS We have received your June 14, 1983 letter requesting the establishment of parking restrictions on Ottie Road, Doske Road, Vogel B. Exh.DKG 17 App. 538 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 41 of 325 Page ID #:2348 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Flats Road and portions of Stonyvale Road (App. 378)……… In accordance with your request, we will install the appropriate signs prior to June 30, 1983.” (App. 379) C. USFS has exercised authority to make County of Los Angeles immediately post signs on roads that County manages. D. When USFS exercises that authority, County complies fast. C. Id. at A D. Id. at A and B. P17 The 1930 permit required COLA to meet design standards such as road width, radii and grade. Exh.DKG 6. App.284. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 42 of 325 Page ID #:2349 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P18 The 1943 permit required COLA to submit plans and specifications for review by the Forest Engineer a mile ahead of construction. Exh.DKG 6. App. 288. Undisputed P19 The 1943 permit states: “3.14 Maintenance: Upon completion of the project, the permittee shall maintain the highway road to the standards as constructed under the terms of this permit and in a manner satisfactory to the Forest Supervisor.” Exh.DKG 6. App.285. Undisputed this is what the permit states. P20 USA may terminate the 1943 for cause. Exh.DKG 6. App.287. Undisputed P21 A. In response to Plaintiff’s Second Request for the Production of Documents propounded to Defendant USA, No. 56 seeking “All DOCUMENTS, including laws and A. Exh.DKG 23 (USA Responses to Karim Kamal’s Second Request for the production of Documents (USA RPD II (Response 56)). App.761 Disputed. Unsupported by admissible evidence. See D3 to D6; D9, D11, D14 to D26 above. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 43 of 325 Page ID #:2350 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regulations, reflecting or evidencing that COLA has been solely and entirely responsible for the operation, repair and maintenance of BTCR since May 1, 1930” Defendant has stated as follows and in part: “Objection. This request is overly broad, unduly burdensome and calls for a legal conclusion. Without waiving such objection, Defendant responds as follows: Pursuant to Forest Service Manual 7700, Travel Management, Chapter 7700, Zero Code which was produced in response to Request NO. 24 of Plaintiff’s First Request for the Production of Documents: 5. Roads and Trails Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 44 of 325 Page ID #:2351 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under the jurisdiction of Other Parties. The following Roads are under the jurisdiction of other parties. Depending on the circumstances, the Forest Service may also share some level of jurisdiction.” B. USFS has produced no documents responsive to Plaintiff’s Request No. 56 other that what was responded as stated above. B. DKG Decla. para.56 App.197. P22 A. In its response to Plaintiff’s Second Request for the Production of Documents No. 57 for” All A. Exh. DKG 23; at para. 57 App. 197 Undisputed as to A. Disputed as to B. See D3 to D6; D9, D11, D14 to D26 above. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 45 of 325 Page ID #:2352 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DOCUMENTS, including laws and regulations, reflecting or evidencing that Defendant United States is not liable to citizens for any harm resulting from any defect or dangerous condition of Big Tujunga Canyon Road since May 1, 1930”, Defendant has answered as follows: “Objection. This request is overly broad, unduly burdensome and calls for a legal conclusion. Without waiving such objection: after conduction a diligent search, the Forest Service determined it is not in possession of documents responsive to this request. See response to Request No. 56.” B. USFS has produced no Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 46 of 325 Page ID #:2353 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 documents responsive to Plaintiff’s Request No. 57 other that what was responded as stated above. B. DKG Decla. para.57, App.197. USA ISSUANCE OF THE RIGHT OF WAY P23 A. On February 9, 1929, Acting Secretary of Agriculture, R.W. Dunlap signed “MODIFICATION OF REGULATION L-7” that states in part “By virtue of the authority vested in the Secretary of Agriculture by the Act of Congress of February 1, 1905 (33 Stat., 628, amendatory of the Act of June 4, 1897 (30 Stat. 11, 35)< I, R.W. Dunlap, Acting Secretary of Agriculture, do hereby amend Regulation L-7 of the rules and regulations A. Exh. DKG 52 (Exhibit 127 of James Jeffery Depo.); App. 1403 Undisputed this is what is stated. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 47 of 325 Page ID #:2354 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 governing the occupancy, use, protection and administration of the National Forests to read as follows: “Reg.L-7: The right of way over National Forest land for any state or county highway or road which is part of the approved system of public roads shall be two chains in width for roads of class one or class two, and one chain in width for roads of class three or other county road of a secondary character; the center line of the highway or road to be the center line of the right of way except as provided by permit. National Forest lands within the limits of such right of way shall continue to be Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 48 of 325 Page ID #:2355 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administered by the Forest Service, but their use for highway or road purposes shall be the dominant use and no occupancy for other purposes shall hereafter be authorized by the Forest Supervisor or District Forester unless approved and concurred in by the appropriate state or county officials…. For highway or road projects which are not part of an approved forest highway program, permits from the District Forester will be required. Before construction is initiated, a plat showing the definite location of the proposed highway or road shall be filed with the Forest Supervisor who will determine the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 49 of 325 Page ID #:2356 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 effect of the project upon National Forest interests and the changes on locations or other feature necessary adequately [to] safeguard such interest and will transmit the plat and his report thereon to the District Forester. …..If the proposed location and other features are approved by the District Forester, a permit shall be issued, without charge, containing such conditions or supported by such stipulations as may be necessary for the protection of National Forest lands.” B. Federal Register, Saturday, August 15, 1936, p. 1039 (1 Fed.Reg.1099, 1936) states: “Reg. L-7 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 50 of 325 Page ID #:2357 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The right of way over national forest land for any state or county highway or road which is part of the approved system of public roads shall be two chains in width for roads of class 1 or class 2, and one chain in width for roads of class 3 or other county road of a secondary character; the center line of the highway or road to be the center line of the right of way except as provided by permit. National Forest lands within the limits of such right of way shall continue to be administered by the Forest Service, but their use for highway or road purposes shall be the dominant use, and no B. Exh.DKG 41 App. 1131. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 51 of 325 Page ID #:2358 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 occupancy for other purposes shall hereafter be authorized by the forest supervisor unless approved and concurred in by the appropriate State or county officials…. For highway or road projects which are not part of an approved forest highway program, permits from the district forester will be required. Before construction is initiated, a plat showing the definite location of the proposed highway or road shall be filed with the forest supervisor, who will determine the effect of the project upon national forest interests and the changes on locations or other feature necessary adequately [to] safeguard such Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 52 of 325 Page ID #:2359 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interests and will transmit the plat and his report thereon to the regional forester. …..If the proposed location and other features are approved by the regional forester, a permit shall be issued, without charge, containing such conditions or supported by such stipulations as may be necessary for the protection of National Forest lands.” P24 A. On January 13, 1944, a letter written by Acting Forest Supervisor George (Last name Illegible) for Mr. V. Mendenhall, Forest Supervisor, stamped received on January 17, 1944, states: U USFS-Angeles Los Angeles County A. Exh.DKG 17 of DKG Decla. (letters January, 17, 1944;December 6, 1943, USA Supp. First RPD 00225-227; App. 554-556 Exh.DKG 6 (Exhibit 4 of Undisputed this is what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 53 of 325 Page ID #:2360 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Road Dept. Road: (Big Tujunga Canyon Road) 05/17/43 1-29-44. REGIONAL FORESTER: Enclosed herewith is a special use permit, issued to the Los Angeles County Road Department covering the Big Tujunga Canyon Road which has been prepared for your approval. As you will note in the attached copy of December 6, 1943, from the County Road Department, since the County will be unable to furnish complete plans showing the proposed alignment for the entire road for quite sometime, we have issued the permit on the condition that Breakwell Depo.) App. 296-298 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 54 of 325 Page ID #:2361 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plans and specifications will be furnished by the County for a distance of about a mile ahead of construction, and the Forest Engineer will go over these plans and specifications with the County Road Department (Stipulation #2.1, Plans, Profiles and Specifications). A copy of the alignment map covering the portion of the road from Angeles Forest Highway to Trail Canyon and from Trail Canyon southwesterly to a junction with the present traveled road [sic]. The original and four copies of the Special Use Permit are enclosed herewith, and if you approve issuance of the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 55 of 325 Page ID #:2362 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permit as it now reads, please sign and return the necessary number of copies for our use. The County filed two separate applications for portions of the same road, and we have combined them into one permit. Copies of the County’s letters of May 17, 1943, together with description and maps (Sheets 1A-2 and Sheet 2- A of Work Order No. 9226), with Ranger Durham’s Report on Applications are enclosed herewith”. B. A letter dated December 6, 1943, from O.F. Colley, Road Commissioner, /s/ A. Mitchell, Chief Right of Way Agent to Mr. V. B. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 56 of 325 Page ID #:2363 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mendenhall, Forest Supervisor U.S. Forest Service 312 N. Spring Street Los Angeles 12, California states: “Dear Mr. Mendenhall: I am enclosing herewith two copies of an enlarged composite map made up of adjoining U.S.G.S. topographic sheets (enlarged scale 1”- 1000’) showing the proposed alignment of our Big Tujunga Canyon Road, from Angeles Forest Highway, in the vicinity of Detention Camp No. 5, westerly to Trail Canyon, and from Trail Canyon southwesterly to a junction with the present traveled road, in the vicinity of Detention Camp N. 2 . The portion Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 57 of 325 Page ID #:2364 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from Angeles Forest Highway to Trail Canyon is shown in red; that from Trail Canyon to the vicinity of Camp No. 2 in black. These maps were prepared in order that they could be submitted to you as our application for a Special Use Permit for the construction of the portion shown in red from Angeles Forest Highway to Trail Canyon. Application has already been made to you for a similar permit covering the portion shown in black from Trail Canyon southwesterly to Los Angeles City boundary. Under normal circumstances more complete plans than those submitted herewith, together with legal description of the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 58 of 325 Page ID #:2365 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proposed alignment would be furnished to you in connection with the application, but it will be some time before we will be able to furnish such maps and descriptions inasmuch as we do not have finished plans throughout.” The letter further states: “The alignment shown in red from Angeles Forest Highway to Vogel Canyon, for a distance of about 5-1/5 miles, has been calculated and estimated and is plotted on our topographic maps, which show 5 feet contour. The portion from Vogel Canyon to Trail Canyon has not as yet been completed, but sufficient investigation of the various possibilities Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 59 of 325 Page ID #:2366 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has been made to indicate that the alignment in this area will almost follow that.” The letter further states: “The rate of grade along the alignment shown will not exceed 7% at any place, but in the 51/2 mile we have already completed there is a majority of 7%” P25 The Regional Forester approved the 1943 permit on January 29, 1944. Exh.DKG 6 App. 295 Undisputed P26 A letter dated March 22, 1945 with the heading: REGIONAL FORESTER Forest Supervisor, Los Angeles, U, USES, L.A. Co. Rd. Dept., Big Tujunga Cyn Road, 5/17/43 1-29-44 states: Exh.DKG 17 App.553 Undisputed this is what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 60 of 325 Page ID #:2367 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Reference is made to the above designated permit and our letter of January 13, 1944 with reference to the permit. In conformance with stipulation 2. 1 “Plans, Profiles and Specifications”, the County Road Department have submitted to us in duplicate the following: 1. Index Map, 1 sheet, scale 1”=1000 ft. 2. Alignment Map, 6 sheets, scale 1”=50ft., Showing 5’ contours and extent of cuts and fills. 3. Profile and Grade Line, 5 Sheets, showing typical cross-section. This covers the entire project from Trail Canyon to the intersection with the Angeles Forest Highway, Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 61 of 325 Page ID #:2368 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and is approximately 71/5 mile long.” The letter further states: “We are not sending one copy of this series of maps and plans to your office pending a decision as to whether or not you wish to have a representative of the Regional Engineer from San Francisco examine these plans down here on the ground, or have us, in cooperation with Mr. Arthur examine them and make recommendations for acceptance and approval.” P27 A. BTCR was under construction at the time the 1943 permit was granted. A. Exh.DKG 6 of DKG Decla. (1943 permit, USA Supp. First RDP 097; App. 289 Undisputed this is what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 62 of 325 Page ID #:2369 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. More specifically, Section 2.3 of the1943 permit states: “Period of Construction: Road is under construction and shall be completed within five (5) years.” B. Id. DESIGN AND CONSTRUCTION OF BTCR P28 COLA drew the plans for BTCR in 1943. Exh. DKG 18 (Craig Cline Cline Deposition Transcript (“Cline Depo.) 1, 5, 35:24- 25, 36:1-2 App.594-595; see Exhibit 1 (Cline Declaration, para. 6) App. 635. Undisputed P29 BTCR as it now exists was built by 1950. Id. Exh. 2 of Cline Depo. (Road Code Inventory) App. 644. Exh.DKG 18 (Cline Depo.18:22- Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 63 of 325 Page ID #:2370 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25, 19:1-2). App. 577-578 P30 A. The Charter of the County of Los Angeles provides: “Section 27. The Road Commissioner, subject to such rules and regulations as shall be prescribed by the Board of Supervisors, shall have direction and control over all work of construction, maintenance and repair of roads, highways and bridges, other than work done under contract, and it shall be his duty to examine and inspect contract work as the same progresses and to see that the same is properly performed, and when completed to file his written approval thereof with the Board of Supervisors. He shall also have the control and management of all County rock quarries and gravel pits, and of A. Exh. DKG 45, App. 1177 https://www.munic ode.com/library/ca/ los_angeles_county /codes/code_of_ord inances?nodeId=C HCOLOAN_ART VIIRODE;. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 64 of 325 Page ID #:2371 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 all other materials, property and instrumentalities necessary for and connected with the construction, maintenance and repair of roads, highways and bridges. --- (86) --- Under this Section the supervisors are relieved from caring for the roads in their respective districts. When the supervisors have by appropriate general rules, regulations and directions, provided for the maintenance and repair of the highways by the road commissioner, in the absence of specific knowledge of his failure to perform his duty in some particular case, they are relieved from responsibility for the results of his negligence. Ham v. County of Los Angeles, 46 Cal. App. 148, 189 P. 462 (1920).  Section 57. This Charter shall take effect at noon on the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 65 of 325 Page ID #:2372 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 first Monday in June 1913. [134] We, the undersigned, members of the Board of Fifteen Freeholders of the County of Los Angeles, in the State of California, elected at a special election held in the said County on the 14th day of May 1912 to prepare and provide a Charter for the said County, under and in accordance with Section 7½ of Article XI of the Constitution of this State, have prepared, and we do hereby propose, the foregoing as and for a Charter of said County. In witness whereof, we hereunto sign our names in duplicate this 24th day of September 1912. LEWIS R. WORKS, Chairman” B. Since 1912, in the County of Los Angeles, Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 66 of 325 Page ID #:2373 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Road Commissioner had authority over all road construction matters. B. Id. P31 The person having authority to approve the design of a road in 1943 in the unincorporated area of the County of Los Angeles was the County of Los Angeles Road Commissioner. Id. Undisputed P32 In Los Angeles County, per the County’s Charter, the person having the authority to approve the design of a road is the Road Commissioner himself/herself or person(s) to whom the Road Commissioner lawfully delegated authority, pursuant to established entity’s internal rules attributing powers, have the authority to approve the Id. Johnston v. County of Yolo  274 Cal. App. 2d 46 (1969). Martinez v. County of Ventura 14 C.D.O.S. 3825, Second Appellate District, No. B244776 (April 8, 2014); 2d Civil No. B258649 Decided: August 31, 2015 Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 67 of 325 Page ID #:2374 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 design. P33 The 1943 permit states: “2. Standards, Profiles and Specifications: Plans and specifications shall be furnished by the County for a distance of about a mile ahead of construction, and the Forest Engineer will go over these plans and specifications with the County Road Department.” Exh.DKG 6. App.288. Undisputed this is what the document states. P34 A. At the time that it produced documents in response to the plaintiff’s requests for the production of documents in this action, including in its supplemental production, USA did not have the plans showing grade and radii and A. Exh.DKG 16 (USA Responses to Plaintiff Karim Kamal’s First Request for the Production (“USA RPD I”), Request 5 ). App. 472 Exh.DKG 17 (Note: I’ll have to see your addition at B.) Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 68 of 325 Page ID #:2375 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifications for BTCR since Angeles National Forest became a federal land. B. USFS has not produced in discovery plans showing grade and radii and specifications for BTCR. (Request 5) USA Supp. First RPD (Request 5). App. 514-515 Exh.DKG 3 Bergdahl Depo. 12:25, 13:1-4 App. 216-217. B. DKG. Decla. para. 58. App. 198 P35 A. On September 4, 1953 a letter with the heading: “U USES-Angeles Los Angeles County Road Dept. Road 5/17/43 1-29-44” Addressed to: “Mr. Sam Kennedy Road Commissioner Los Angeles County Road Dept. 108 West Second Street Los Angeles, California” A. Exh.DKG 17. (USA Supp. First RPD 0193-0194). App.549 Undisputed this is what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 69 of 325 Page ID #:2376 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 States: “Dear Mr. Kennedy: Reference is made to the above designated permit covering construction of the County road in Big Tujunga Canyon. When this permit was originally issued in 1943, the County furnished us with detailed plans and specifications only for the first mile of road. In our discussions at this time with the Department it was the understanding that such additional detailed plans and specifications would be furnished to us as they were prepared and at least for a mile ahead of actual construction of the highway. This was provided for in condition Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 70 of 325 Page ID #:2377 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2.1 of the special use permit. We have received no such additional plans since the original mile submitted with your application. We would therefore appreciate having the detailed plans for at least the section of the road which is now under construction and for that section of road that has not been built providing plans are already prepared. Very truly yours. Mr. V. Mendenhall Forest Supervisor George Armstrong, Acting.” B. A letter dated August 24, 1953 with the heading: “District Ranger-Arroyo Seco B. Exh.DKG 17. (USA Supp. First RPD 0193-0194). Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 71 of 325 Page ID #:2378 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U-USFS, Los Angels County Road Dept. Big Tujunga Canyon Road, 5/17/43 1-29-44 Forest Supervisor” States: “Reference is made to the above Special Use permit and our recent discussions with Mr. Howlett. Would it be possible to secure currently from the County the plans and specifications to cover construction on the Road in the new Big Tujunga Canyon? According to specifications 2.1 of the Special Use Permit, plans and specifications shall be furnished by the County for a distance of about a mile ahead of construction, and the Forest Engineer will go over these plans with the App. 550. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 72 of 325 Page ID #:2379 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County Road Department. We have no surveys or maps in our files beyond those furnished in 1942 by the County for the section between the south Forest Boundary and Trail Canyon. My request is based on the feeling that some of our recent fills installed above Flood Control are not adequately drained by culverts.” P36 A Memorandum dated September 23, 1953 With the heading—Ger Wilson Acting Forest Supervisor, Angeles U-USES-Los Angeles County Road Department. Road, Exh.DKG 17. USA Supp. First RPD 0192). App. 548. Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 73 of 325 Page ID #:2380 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5/17/43 (Big Tujunga Canyon Road) States: “Reference is made to your letter of August 24, 1953. We have written to the County Road Department regarding the detailed plans which you requested. They inform us that such plans were furnished the Forest Service in 1945. Actually in checking our file records we find that such plans were received by this office”. The letter further states: “We believe that you should make a check of your maps and if you are unable to find your set, then to inquire of the Upstream Flood Control Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 74 of 325 Page ID #:2381 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Office and to whether they have a copy which you might have. The County points out in their letter that since the furnished us two copies and since considerable expense is involved in preparing additional ones that they would appreciate it if we would make a search for the ones that were furnished us. We feel that under the circumstances it would be somewhat unfair to insist that they furnish us with additional plans.” P37 Documents produced by USFS in response to Plaintiff’s Requests for the Production of Documents and Plaintiff’s Interrogatories in this action do not DKG Decla. para 59, App.198 Disputed. Unsupported by admissible evidence. (Note: I’ll have to see Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 75 of 325 Page ID #:2382 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 include any record showing any attempt by USFS to obtain copies of the plans, specifications and profiles since September 23, 1953. your evidence) P38 Documents produced by USFS in response to Plaintiff’s Requests for the Production of Documents and Plaintiff’s Interrogatories in this action do not include any record showing that the County gave USFS plans stating grade and radii and specifications for BTCR since the Memorandum dated September 23, 1953 referenced at P36 above. DKG Decla. para.60. Disputed. Unsupported by admissible evidence. (I’ll have to see your evidence) Objection. FRE 401; lacks foundation and misstates the evidence. P39 USA states that it had or has no role in the design of BTCR. Exh.DKG 31 (Rog.25) App.984; Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 76 of 325 Page ID #:2383 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P40 A. Craig Cline testified as follows at his deposition of April 4, 2014 in Morales . City of Los Angeles/Kamal v. Los Angeles County, EC 058265: “ Q. Let's back up a little bit, and we will talk some of your background. It says in your declaration that you are a senior civil engineer with the County of Los Angeles, Department of Public Works, design division, and have held that position since 1999. Generally, what are your duties as a senior civil engineer with the County? A. I supervise a team of civil engineers doing highway design projects. A. Exh.DKG 18 of DKG Decla.(Cline Depo. 1, 5, 19:23,25; 20: 1-11. App.578, 579; (Cline Declaration). App.634. Undisputed this is what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 77 of 325 Page ID #:2384 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 … Q. What is the highest level of your formal education? A. A bachelor of science in civil engineering. Q. Where did you get your bachelor of science? A. California State University Northridge.” B. Los Angeles County Engineer Craig Cline testified as follows at his deposition of April 4, 2014 in Morales . City of Los Angeles/Kamal v. Los Angeles County, EC 058265: “Q. But what I'm asking is, what do you know today about the common design practice back in 1943 for the construction of mountain roads? B. Exh.DKG 18 (Cline Depo). 1, 5 26:11-25; 27:5-11, 34:16-20, 64:14- 25; App.585, 586, 593, 623; Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 78 of 325 Page ID #:2385 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 What is your familiarity with the common design practice in 1943? A. Oh, I don't know what they were in detail, no. Q. Well, I'm not asking in detail. What do you know about them generally? A. I don't understand the question. Q. You said you did not know in detail what the design practice -- the common design practice was for design of mountain roads in 1943. And let me also include in that for the County of Los Angeles. Since you said did not know specifically, that leads me to believe that maybe you have some general information in that regard. And is that true, or you just don't Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 79 of 325 Page ID #:2386 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 really know what the common design practice was for construction of mountain roads in 1943? MR. WILLIAMS: Objection. Overbroad. Compound. WITNESS: I mean, I can observe what the design practice was based on the plans that are in front of us as well as -- But as far as the specific guidelines, what the maximum grades allowed or the -- or slopes requirements, I know what they are today. I don't know what they -- I haven't seen their guideline from that time.” ………. Q. You talked about, in your last answer, a minimum radii. What was the minimum radii Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 80 of 325 Page ID #:2387 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for this project? A. The minimum radii used on the project, I am not sure. ……….. Q. Do you know whether or not Big Tujunga Canyon Road was designed in conformance with the prevailing design at the time -- I'm sorry -- with the prevailing design standard at the time? A. I believe it was -- Based on, again, my experience, an approved plan like these would have been designed by the approved standards -- approved guidelines or standards at the time. Q. But you don't know Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 81 of 325 Page ID #:2388 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 what those approved guidelines or standards at the time were; correct? A. That's right.” P41 A. John Squier, Expert Civil Engineer on road design and a former Assistant Deputy Director, Traffic and Lighting Division, at Los Angeles County Department of Public Works, testifying as an expert for the County of Los Angeles, in the Morales v. City of Los Angeles/Kamal v. County of Los Angeles stated that he does not know the level of approval necessary to approve the design of a road. B. Craig Cline testified as A. Exh.DKG 20 1, 5, 10:4-17; 34:9-25; 35:1-6) App.681, 687. B. Exh.DKG 18 (Cline Depo. 40:7- 25; 41:18-25; 42:1- 21; 63:9-25; 64:1- 13; 65:16-18) App. 599, 601, 622, 623 B. Undisputed this is what the document states. C. Undisputed this is what the document states. D. Undisputed this is what the document states. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 82 of 325 Page ID #:2389 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 follows at his deposition of April 1, 2014: “ Q. And who, if anyone, approved the design of Tujunga Canyon Road? MR. WILLIAMS: Objection. Overbroad. THE WITNESS: I'm not sure which design you're talking about. MR. JAYNES: Q. Well, the design depicted on these plans. A. Normally, the people involved in the design of it would put their names on the plan. …………… Q. So other than the fact that we have two people's names, which are hard to decipher, listed as "Field Work" and "Office Work," do you have any other information that these Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 83 of 325 Page ID #:2390 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plans were approved by anybody? A. Well, the plans -- the names on the plans, to me, indicate approval of the format that they used at that time, on other plans I've seen. Q. I'm just asking -- I'm sorry -- I'm asking, do you have any other information, besides these names printed on Exhibit 3 (indicating), which indicates that these plans were approved by any entity or individual? A. Just the experience of when we did the discovery, we found these in the plans archive where we normally store plans after they were approved. We don't Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 84 of 325 Page ID #:2391 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 put them down before. Q. And how do you know back in 1943 that that was the custom and practice of the department, that they would not go down there unless they were approved? A. Based on my own experience. When I started with the Road Department, if it wasn't approved, you'd have a "Preliminary" stamp to try to distinguish the project is not approved, and you normally wouldn't have the names on it. Q. When did you start? A. 1982. And it was still called the Road Department. Q. Almost exactly 40 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 85 of 325 Page ID #:2392 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 years after these plans were prepared; correct? A. Yes.” ……………….. Q. -- which is a group of individuals. But I want to know if you know whether the design of Big Tujunga Canyon Road was approved in advance by any public officer, like an elected official, an appointed official, somebody working in a public department. MR. WILLIAMS: Objection. Same objection. THE WITNESS: I'm not sure. I believe that the Road Department head was the road commissioner, Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 86 of 325 Page ID #:2393 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 established even -- I think even before the formal Road Department was established. So he would be a public -- might fit that definition. Normally, by having the Road Department title on the plans signified an approval at some stage by the Road Department and the commissioner. MR. JAYNES: Q. You said his name may be on the plans, the road commissioner? A. It might. I know later -- again, like today -- we do things -- later, for a period, when I started, the road commissioner did have his name on the plans. He didn't always sign. Maybe a deputy signed for him. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 87 of 325 Page ID #:2394 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Do you see the name of the road commissioner on any of these plans you produced today, sir? A. No. Nor on any of the others I've seen from this era. Q. Do you know who the road commissioner was at the time of the design and construction of Big Tujunga Canyon Road? A. No.” C. John Squier, Expert Witness for County of Los Angeles testified as follows in Morales v. City of Los Angeles/Kamal v. Los Angeles County EC 058265: “Q. Do you know whether or not Mr. C. Exh.DKG 20 22:9-24; 23, 34:9- 25; 35:1-6) App. 684; 687. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 88 of 325 Page ID #:2395 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hinckley approved the design for Big Tujunga Canyon Road? Mr. Williams: Objection. Overbroad. THE WITNESS: Well, it says here Mr. Hinckley checked them. Mr. JAYNES: Q. Where does it say that? A. On the plans (indication). It shows— shows here (indicating on both)—The profile plan, it shows the bottom name is “Checked”. He checked the profile plan (indicating). He was involved in the office work of the horizontal layout (indication). Q. Now, checking plans and approving plans are two different things; isn’t that correct. A. Yes. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 89 of 325 Page ID #:2396 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ……………………….. Q. Did someone have final approval? At the time that big Tujunga Canyon Road was built, is there someone that had final approval responsibility for the project? A….So there are different levels of approval, and you can’t say. It would depend on the project what level of approval. ………. A…My understanding is that basically what we did, just as you’ve shown on the plans, both the detention camp, the construction people, and the office people did the design. Q. So at the time, there would be no higher level of approval for any road Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 90 of 325 Page ID #:2397 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constructed in an unincorporated area? A. I don’t know. “) P42 USFS Angeles National Forest Engineer Sonia Bergdahl is not aware of any design standards imposed on COLA before BTCR was constructed. Exh.DKG 3 of DKG Decla. (17: 22-25, 18: 1-11) App. 221, 222. Undisputed this is what Ms. Bergdahl stated. P43 Sonia Bergdahl testified as follows: “Q. Forestry personnel travels on those roads, correct? Q. Yes. Q. So the forestry has a vested interest in ensuring that these roads are safe, correct? MR. STAUB. Objection. Assumes facts not in evidence, but you can answer. THE WITNESS: We want Exh.DKG 3 of DKG Decla. (Bergdahl Depo. 21:15-22) App.225. Undisputed with respect to BTCR. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 91 of 325 Page ID #:2398 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the road to be safe, but we’re not the expert. We rely on the expert.” P44 Sonia Begdahl, Forest Engineer and Acting Deputy Forest Supervisor at the time she gave her deposition testimony in this case, is a civil engineer trained in designing, maintaining and operating various types of utility system, including roads. Exh.DKG 3 of DKG Decla. (6:22- 25, 7:1-6) App.210, 211 Undisputed P45 A. Sonia Bergdahl testified as follows: “ BY MS. KAMAL- GRIFFIN: Q Do you have a procedure to ensure that the roads that they design, such as Big Tujunga Canyon Road or Angeles Highway or Angeles Crest Highway, do you have any procedure to show that A. Exh.DKG 3 of DKG Decla. (Bergdahl Depo. 18:24-25, 19:1-11.) App.222, 223. A. Undisputed this is what deponent stated. B. Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 92 of 325 Page ID #:2399 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these roads are properly designed? A We don't have a procedure, no. We don't have a procedure to assure. We rely on their engineers and their consultants to design the road according to standards and their own safety standards. Q But is there anything that your office does to make sure that the plans conform to the applicable State or County standards? A We do not review their plans, any specifications, and the drawings for any kind of standard.” B. USFS has no procedure in place to ensure that design and construction plans for roads such as BTCR B. Exh.DKG 6, App. (Breakwell Depo.18:15-18). App. 265 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 93 of 325 Page ID #:2400 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 comply with applicable State or County standards. P46 A. James Jeffery is a licensed Professional Engineer, licensed in the State of California firstly as a Civil Engineer and secondly a Traffic Engineer. He received his Engineering degree from San Jose State College and his Environmental Studies degree from California State University, San Jose, in 1971 and 1973 respectively. He has been employed in a wide variety of public and private traffic and civil engineering functions for the past 40 years. Roadway design defect is the primary focus of his consulting practice. He has traffic safety A. Exh. DKG 52 (James Jeffery Deposition, at 10:9- 17. App. 1198 Exh. 122 of deposition Transcript which is James Jeffery’s C.V.). App. 1255. Declaration of James Jeffery at para. 3; App 1333. A. Undisputed. B. Undisputed that this is what deponent stated. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 94 of 325 Page ID #:2401 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 experience in multiple states. He has been admitted as an expert witness in Superior Courts of the State of California on matters such as the subject collision. A true and correct copy of his resume is attached to his report of May 1, 2016. B. James Jeffery testified as follows: Q. Now, with respect to the opinions that you have formulated in this case, what training and education did 8 you obtain that lends to those opinions? A. Well, knowledge, training, and experience, obviously the experience of 25 plus years, 30, 35 years as a private traffic B.Exh. DKG 52. App.1198 (Jeffery Deposition10:6- 17). App Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 95 of 325 Page ID #:2402 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engineer. Bachelor of science degree, engineering management, San Jose State University, 1971; bachelor of science degree, environmental studies, CSU San Jose, 1973. And then professional affiliations where I would have gotten more training and experience and various -- various professional organizations”.). C. The plans that COLA drew provide for a grade of 7% maximum on the entire road. C. Exh.DKG 52 (James Jeffery Report) p. 23, para. 40-41; App. 1281; p. 32 (Summary and Opinion)). App. 1290; App.1300-1302 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 96 of 325 Page ID #:2403 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Exh. 4 of Cline Depo.); Exh. DKG 18 Cline Depo. (Exh. 4) App.647- 649; Jeffery Declaration (Enlarged plans attached to Cline Depo. as Exh. 4) App. 1405-1407 P47 A. James Jeffery, P.E., states: “At the approach of the subject turn westbound of the roadway the grade slopes at a grade of over 7%. ………However the constructed grade is mostly between 7 and 8% with some places over 8%.” B. James Jeffery testified as follows regarding the grade at the location o the subject collision: “Q. By the way, the A. Exh. DKG 52 (“Jeffery Report”) Report p. 23, para. 40. App. 1281. B. Exh. DKG 52 (Jeffery Depo. Pp.26: 16-26; 27: 1-13; 27:14-25; 28:1-8; 28: 9-24; A. and B. Undisputed that these were Mr. Jeffery’s opinions. C. Undisputed these were Mr. Kamal’s opinions D. Undisputed this was deponent’s testimony. C. Objection as to Mr. Kamal’s findings in that it lacks foundation and calls for an opinion beyond the scope of his expertise. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 97 of 325 Page ID #:2404 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 photographs that you took, how many times did you visit the accident site and when? A. Once. And probably on February 27th of this year. Yes. Q. And these photographs -- well, first of all, how did you determine where to take the photographs where the accident site A. Good question. Because based on the drawings and the other professionals that were involved in this previous to last year had not -- had not or could not identify where the curve was. If you want me to go into my, if you will, engineering analysis of that, I can. Q. Well, why don't you try to answer in lay and 14-25; 30:19- 25; 31:1-17; 63:22- 25; 64; 65:1-13); App.1207, 1208, 1209, 1210, 1211; 1229-1231. E. Undisputed this was deponent’s testimony. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 98 of 325 Page ID #:2405 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terms exactly how you determined where to even take these photos. How did you determine where the accident occurred? A. Okay. Actually, as an aside, normally I don't write on documents, but I have written in pencil on some of the design documents that are in tab three or engineering plans. And I looked at the overall design of the road and then some detailed topo alignment of the road and matched them up and was able to determine which curve it was. Curve 32.” AND: “Q. Now, it's my understanding that the CHP did an Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 99 of 325 Page ID #:2406 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 investigation or analysis. Have you seen that information? A. Are you saying it's the TCR? Q. What's a TCR, sir? A. Traffic collision report. Q. Whatever the CHP generated, you've seen all those materials, right? A. I can't say without you telling me. All I believe that I have seen were related to the CHP. And more so, that I would be interested in is the traffic collision report, Form CHP 555. That's all I recall. Q. Okay. And with respect to that, does it identify the exact location of the accident? A. By mile post, yes. Q. And were you able to Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 100 of 325 Page ID #:2407 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confirm that when you did your inspection? A. Absolutely. I did that when I was out there. I really let's say couldn't do that in the office or didn't do it. But yes.” AND “ Q. In your report you identify the accident location as 1330 feet west of mile post marker 5.69. Where did you get that information? A. Out of the traffic collision report, on the first or second line. Q. And you're sure that it was mile post 5.45? Is that what your testimony is? A. That's my calculation. Q. What do you mean, your calculation, sir? A. Well, I took the mile post that they said Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 101 of 325 Page ID #:2408 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 knowing -- and knowing that the mile posts go uphill, it was -- which is eastbound, and it was 1330 feet, divided that into a mile, find out the decimal equivalent of that, and subtracted it from 5.69 to come up with 5.45. And of course the mile post that, obviously because the accident happened over a certain length, is -- is there. I mean, you know, whether it's 50 feet one way or a hundred feet another, it's there. Anybody can go out and find that 5.45. And it's the curve, the subject curve. And again with a small "C," because it's really a turn.” AND Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 102 of 325 Page ID #:2409 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “ Q. Let's turn to paragraph 40. Who measured the existing grade on the subject turn? A. I did. Q. How did you do that? A. Using a level with -- with grade, with grade LED printout or -- not printout. Display. Q. And how much of the turn did you actually measure the grade? A. Portions of it. How much? Three or four places, as I recall. My pictures would tell me that. But three or four places where -- Q. On those three or four places what -- A. Go ahead. Q. On those three or four locations, what distance for each location did you measure Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 103 of 325 Page ID #:2410 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the grade? A. For four feet. Q. So approximately 12? A. And I was -- remember there is a delay here, too, for the court reporter. I looked at the grade by laying down and making sure that the grade was smooth, so that I could take an accurate reading of the grade. And I took a reading of the grade accurately. Q. Do you have any documentation showing your findings -- A. Pictures. Q. -- of the measurements of the grade? A. Pictures. Pictures of the LED printout, which are in my file. Q. How long are the sections with an alleged Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 104 of 325 Page ID #:2411 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 grade of greater than eight percent? A. Are you talking about our location or the rest of the whole BTCR? Q. No. The accident location. THE WITNESS: Can you read back the question, please. (Record read.) THE WITNESS: All of them except for one. And that one was 7.7 percent. And I would say that the average of those would be -- would be more than eight percent. As a matter of fact, it is. The average is more than eight percent.” C. Plaintiff declared as follows: “9. Attached as Exhibits 5, 6 and 7 are true and C. Exhibits 5, 6 and 7 of Declaration of Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 105 of 325 Page ID #:2412 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 correct copies of photographs I took of an instrument placed at different locations on BTCR. This tool, made by Husky that I purchased new on February 18, 2016_______in Santa Monica_, gives a digital reading of the grade of a road. On February 19, 2016, I placed the instrument on BTCR about a mile east of the reservoir; around mile marker 8:30. Exhibit 5. I also placed the instrument at two separate locations, East bound and West bound at or about the turn where the collision occurred. Exhibits 6 and 7. I took the photographs with my camera on 02-19-1016”. D. James Jeffery, P.E. Karim Kamal (“KK” (photo of grade reading instrument on BTCR) App.1444, 1455,1456, 1457. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 106 of 325 Page ID #:2413 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testified as follows: “ Q. You also reviewed photographs that were produced by plaintiff's counsel to you; is that right? A. Yes. They are in my file. Q. And those photographs -- you relied on plaintiff's counsel's statement that these photographs were taken at the scene of the accident? A. And my own confirmation. Yes. Q. What do you mean by your own confirmation? How did you confirm it independently? A. I went out there and did the same thing. I confirmed their -- did you use the term measurement? If you did, they weren't D. Exh.DKG 52. 28:12-24). App.1209. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 107 of 325 Page ID #:2414 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 measurements. They were pictures of a level that shows grade. And they were pictures and they were the same location that I went out to.” E. Craig Cline testified in Morales v. City of Los Angeles/Kamal v. Los Angles County, EC 058265 as follows: “Q. Have you made any investigation or inquiry in regards to confirming that Big Tujunga Canyon Road was constructed in conformance with the design? A. I haven't made any inquiry. I've seen a profile of the current grade compared to this grade here (indicating). E. Exh. DKG. 18 (Cline Depo. 44: 15-25;45:1.) App.603-604. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 108 of 325 Page ID #:2415 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Well, does that conclusively determine that the entire road was constructed in conformance with the design? MR. WILLIAMS: Objection. Overbroad. THE WITNESS: I haven't examined the grade for the entire limits of the roadway.” P48 Per Plaintiff’s expert James Jeffery, P.E. analysis: “This steep (and non- standard in its past/present condition) grade is unfortunately also “linked” to the sharp turn nature of the subject curve. The turn (actually built as a kinked turn) was designed with a Exh. DKG 52 (Jeffery Report (para. 43-44) App.1283-1284; Exh. 4 of Declaration of James Jeffery 1405-1407. Jeffery Deposition at 18:15-25;19-21:1- 4. App. 1199-1202. Undisputed this was his opinion. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 109 of 325 Page ID #:2416 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 smooth 300 foot radius curve.” P49 A. James Jeffery states: “The design radii for horizontal alignments are always attempted to be built with a constant smooth unchanging path. The radii in the subject turn in no way complies with this basic tenet. In actuality the subject turn is comprised of four separate distinguishable curves, and in order to make the turn “as a whole”, varies from approximately 300 foot radius to a radius of approximately 520 feet. While this is a compound curve, again, it does not meet any standard for compound curves. Exhibit “II”. A. Exh.DKG 52 (James Jeffery Report 43-44; App.1283-1284; pp. 31, 32 (Summary and Opinion) App. 1290. Undisputed these were his opinions and testimony. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 110 of 325 Page ID #:2417 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. James Jeffery testified: “ BY MR. STAUB: Q. Referring to that file folder of hard copies of documents, is that everything that's listed on your "File Contents" table, Exhibit 124? A. I believe so. Q. Tell me exactly what this Quilici Engineering company was tasked to do in this case. A. To make an engineering decision if there was a compound curve and to draft said should it be one. Q. Did they prepare a report of their findings? A. They printed a map, and I read it. Q. Okay. So their findings are in a map; is that right? B. Exh. DKG 52 (Jeffery Deposition (18:15-25; 19; 20; 21:1-4; App.1199- 1202. Exhibit 2 of the James Jeffery’s Declaration. App. 1373, 1400. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 111 of 325 Page ID #:2418 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. That's correct. Q. Everything -- all of their analysis and findings were included in that map? A. That I received or reviewed. Q. And that map, I assume, is part of your file that we just marked; is that right? A. Yes. Q. What is the title of that map so that I can easily find it when I go through the file? A. "Curve Analysis." Q. And what did you determine from your review of that map? A. That it's a compound - - that it's a compound curve, multiple compound curve. Q. What does that mean? A. In layperson's terms? Q. Yes. I would Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 112 of 325 Page ID #:2419 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appreciate it. A. Four curves in one, not an even, smooth radius curve, as was called out for in the plans. Q. And this curve -- where is this curve located? A. It's the subject curve. Q. Okay. Is this the curve on which the accident occurred? A. Yes. I'm calling that and my report calls that "the subject curve." Q. And when you say there is four turns in one curve, what do you mean exactly? A. No. I -- I didn't say turns. If I did, I'll retract that. I believe I said curves. Four curves within one curve. Q. And can you in lay terms explain what you Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 113 of 325 Page ID #:2420 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mean by that? A. Curve one has a certain radius. Curve two has a certain radius. Curve three has a certain radius. And curve four has a certain radius, all within the beginning and ending, which at some point sometimes called tangent points to the curve or on the curve. Q. And how does that differ from standard -- A. Because -- Q. -- or the design? A. Well, the design's easy. The design is a -- is a continuous, smooth 300-foot radius with different factors that I won't go into now but -- because they are engineering but -- and then this one is -- this Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 114 of 325 Page ID #:2421 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 one, instead of having one curve, has four. And the important thing to note is I -- and hopefully I covered this in my report -- is that -- that a curve -- a curve next to another curve in a compound curve cannot be more than one and a half times the radius of the previous one. Otherwise, what happens is there is a serious kink in the curve, which is what the case is here.” P50 A. The radius at the subject curve is irregular as constructed. B. The subject curve is a compound curve with four arcs as constructed. A.Id. B. Id. Undisputed these were his opinions. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 115 of 325 Page ID #:2422 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Craig Cline, County Los Angeles: “Q…What was the minimum radii for this project? A. The minimum radii used on the project, I am not sure.” D. James Jeffery testified as follows: “ Q. Okay. What's the basis for your statement 25 that, "Since the defendant United States is desirous of the monitoring public continuing the use of this road, the public should expect the standard desire. And if that can't be designed or maintained, then adequate warning should be provided." Can you explain that? Exh. DKG 18 (Cline Depo. 34: 16-20) App. 593 D. Exh.DKG 52 (Jeffery Deposition at 78:24-25; 79:1- 21. App. 1243- 1244 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 116 of 325 Page ID #:2423 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. And it's "motoring public." Let's see. All across the United States and as part of the federal MUTCD, the federal government for close to a hundred years has been seeking to have similar conditions in one place, be warned for, or be expected in the same way as another one in a similar situation would be in another place. It's called design consistency. And it's -- that's what the motoring public is and should always be able to expect. It's the whole basis of competent engineering. And if it can't be designed or maintained, then adequate warning should be provided. The Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 117 of 325 Page ID #:2424 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 first thing is get it designed. Then properly -- get it constructed properly. Have it constructed properly. And if it is dangerous or if it is substandard in some way, you address it by -- you could address it in part by warning signage” P51 In the past, an employee of USFS considered canceling the 1943 permit due to sub- standard construction issues. Exh.DKG 17 (USA Supp. First RPD 00195 and 00202). App.551, 552 Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. DOMINANT USE OF BTCR P52 A. A Document titled “U.S. department of Transportation Federal Highway Administration- California Division Damage Assessment Form (DAF)-Title 23 A. Exh.DKG 12A App. 359 A. Undisputed this is what the document states. (Assuming you revise Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 118 of 325 Page ID #:2425 119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Applicant: L.A. County Dept. Of Public Works County: Los Angeles. Received February 22, 2010 Location of Damage: Name of Road/Bridge: Big Tujunga Canyon Road (R8H557001) Incident Date: 08/28- 9/6/09 Inspection Date:03/16/10” Refers to Big Tujunga Canyon Road as follows: Federal Highway? X— Yes “State/Local Route No. L624/Major Collector”. B. BTCR has been given a major collector designation. B. Id.; Exh. DKG 52 (Jeffery Report at para. 18; App. your fact as noted) B. Undisputed this was Mr. Jeffrey’s opinion. (Assuming you revise fact as noted) Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 119 of 325 Page ID #:2426 120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1267; Jeffery Deposition 33:22- 25; 34:1-6. App.1212-1213 P53 A. A map titled “Reporting Districts Crescenta Valley Policing area Sheriff’s Department” With “San Gabriel Mountains” written on it, shows Big Tujunga Canyon Road, Vogel Flats road that intersects with Big Tujunga Canyon Road, and a road that starts at Vogel Flats and leads to La Paloma Flats/Stoneyvale which a recreational area. B. Stonyvale is a recreational area accessible by road from Big Tujunga Canon Road then onto Vogel Flats A. Exh.DKG 17 of DKG Decla. (USA RPD 00088) App. 382; Exh. DKG App. 542. B. Id. Exh. DKG 48; App.1187. Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 120 of 325 Page ID #:2427 121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Road then onto Stonyvale Road. DEMOGRAPHICS P54 USFS states on its web page for Angeles National Forest: “Big Tujunga Canyon Place Big Tujunga Canyon Road …….. “the Big Tujunga Canyon Place functions as a year-round day-use recreation landscape for families seeking a gathering spot in a river- based woodland setting.............. “Vogel Flats Big Tujunga Canyon Place Due to the accessibility of water, this area is marked by concentrated public use, mostly family- Exh.DKG 24 of (USA presentation of ANF Vogel Flats recreational area, p. 2 of document). App. 700-702 Undisputed this is what the document states. Objection. FRE 401 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 121 of 325 Page ID #:2428 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 based, and with cultures associated with recent immigration to this country” P55 The same web page goes on to state: “Recreation uses are conflicting with other resources” Id. Undisputed this is what the document states. Objection. FRE 401. P56 The same webpage goes on to state: “The remote nature of areas of Vogel Flats recreation area provides opportunities for criminal activity to occur undetected.” Id. Undisputed this is what the document states. Objection. FRE 401 P57 In an August 24, 1990 judgment, a judge of the United States District Court for the Central District of California found, regarding the interaction of USFS personal with users of the Stoneyvale picnic Soto v. United States 748 F. Supp. 727 (C.D. Cal. 1990). Undisputed, the court’s ruling speaks for itself. Objection. FRE 401. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 122 of 325 Page ID #:2429 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recreation area that is close to the Vogel Flat campground, that: “ District personnel testified that they were reluctant to police and inspect certain areas, "to go down there," because they found it (mingling with the users) unpleasant. The District Ranger remarked that if signs were to be put up they would have to be in Spanish and "Asian". One of the "subdivision" residents testified more bluntly. In her opinion, the area was overrun with "80 percent Mexicans and 20 percent undesirable whites." This racial overtone is unfortunate and, undoubtedly, was a contributing factor in the Forest Service's failure Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 123 of 325 Page ID #:2430 124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to carry out its mission in this racially heterogenous metropolis.” P58 Plaintiff immigrated in the United States as a political asylee from France. Exh.DKG (Karim Kamal’s Deposition Transcript in these proceedings “KK Depo. USDC” 12:14-25, 13: 1-5). App.706-707. Undisputed Objection. FRE 401. BTCR IS A FEDERAL AID HIGHWAY FOR WHICH FHWA GRANTED FUNDS UNDER THE HSIP PROGRAM SINCE 2010 P59 A. The term “Federal-aid highway” means a public highway eligible for assistance under this chapter other than a highway functionally classified as a local road or rural minor collector. B. BTCR construction is a federal aid highway A. 23 USC 101 (a) (6) B. Id. at P52 above; A. Undisputed B. Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 124 of 325 Page ID #:2431 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 project. Exh.DKG 12A (Caltrans) App. 359. P60 A. A document titled “U.S. Department of Transportation Federal Highway Administration- California Division Damage Assessment Form (DAF)-Title 23 Received February 22, 2010 Incident Date 08/26/2009 Inspection Date: 02/16/1010 Federal Aid Highway? _X yes Applicant L.A. County Dept. of Public Works County of Los Angeles Location of Damage: Per Site or Per Mile (circle one) Name of Road-Bridge BIG TUJUNGA A. Exh.DKG 12B App. 378. Undisputed as to what the documents state. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 125 of 325 Page ID #:2432 126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CANYON ROAD (X2501786, X2501797) Begin MM 4.76 End. MM 9.94 PM Total Feet: 27,350.” States “Description of Damage: GUARDRAIL. STREET SIGNS, AND REFLECTIVE STRIPING BURNED/DAMAGED FROM THE SEPTEMBER 2009 FIRE” COST ESTIMATE Emergency Opening (EO) to Date X Local Forces X Contract Description of Work Remove and replace damaged guardrails and traffic signs at various locations and replace damages raised pavement markers and Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 126 of 325 Page ID #:2433 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 striping” And further states on the right hand column (Summary Cost): “TOTAL ESTIMATED COST (EO+PR+PE+CE+R/W) $613.750.” P62 A document titled: “Invoice County of Los Angeles Department of Public Works “To enrich Lives Through Effective and Caring Service” 900 South Fremont Avenue Alhambra, California 91803-1331 Gail Farber. Director Received February 26, 2015, Invoice Date: February 26, 2015 Id. (Caltrans). App. 370. Undisputed as to what the documents state. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 127 of 325 Page ID #:2434 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. David Sosa, Chief Department of Transportation District 7 Office of Local Assistance 100 South Main Street, 12th Floor Los Angeles, CA 90012 Billing No.: Progress Billing No.4 Invoice No.: SA150000339 Federal-Aid Project No. ER-4620 (005) Tax Identification No.: 95-6000927 Project Location: Big Tujunga Canyon Road From MM 0.04 to MM 9.94 Project Expenditure Authorization No. 07- 933840 Project No. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 128 of 325 Page ID #:2435 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R8H557001” States: “Reimbursement of Federal Funds is claimed pursuant to Local Agency-State Agreement No. 07-5953R, Program Supplement No. N403 executed on 11/01/12 by County agreement No. 76078.” And further submits an invoice for the total amount of $448,383.54 which amount was arrived at as indicated in the far right column under “Total” “Total Cost to Date*: $1402,753.72 Federal Participating Costs: $1,352,144.21 Federal Reimbursement Amount**: $1,350,873.86 Less: Payment received: 739,000.00 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 129 of 325 Page ID #:2436 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Subtotal: $611,873.86 Less: Unbilled Amount***163,490.32 Amount of This Claim: $448,383.54” P65 P66 P67 P68 P69 A. A document titled “2010 CALIFORNIA HIGHWAY SAFETY PROGRAM 5 PERCENT REPORT CALIFORNIA REPUBLIC” and bearing the seal of California states “Introduction: On August 10, 2005, President George W. Bush signed into law the Safe, Accountable, Flexible, and Efficient A. Exh.DKG 24 (p 25, entry 463). App 767-773 Undisputed as to what the document states. Objection. The 5% report is inadmissible pursuant to 23 U.S.C. section 409. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 130 of 325 Page ID #:2437 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 1 (a), Aug.10, 2005, 119 Stat.1144. SAFETEA-LU established a new core Highway Safety Improvement Program (HSIP) to achieve a significant reduction in traffic fatalities and serious injuries on all public roads. A provision of the HSIP requires every state to submit an annual report describing not less than 5 percent of its public roadway locations exhibiting the most severe safety needs to the Federal Highway Administration (FHWA) by August 31 of each year (23 U.S.C. 148 (c) (1) (D). The “2010 California Highway Safety Improvement Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 131 of 325 Page ID #:2438 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Program 5 Percent Report” (Report) satisfies the HSIP SAFETEA-LU requirements and complies with FHWA guidance. II. Purpose This Report begins the investigative process and is not intended to be used as a tool for the allocation of funding for, or prioritization of, public roadway safety projects. The purpose of this Report is to: 1. Satisfy the HSIP requirement. This Report is one of four reports required by SAFETEA- LU for California to receive its full apportionment of federal HSIP funding. In addition, the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 132 of 325 Page ID #:2439 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 development of an approved Strategic Highway Safety Plan (SHSP) is required. 2. Raise public awareness of the safety needs and challenges in California. In accordance with SAFETEA-LU, the U.S. Department of Transportation promotes public awareness by posting the approved Report for California, and other states’ annual report, on the FHWA’s Web site. III. Collision Factors The Venn diagram on the next page shows collisions resulting from on factor or a combination of factors: the vehicle, the driver, and the road. For example, the “Interactive Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 133 of 325 Page ID #:2440 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Highway Safety Design Module: Accident Predictive Module” report indicates that a collision may result from faulty brakes, an impaired driver, or a curve that is too for the prevailing speed. Nationwide, 12 percent of all collisions involve some actor of the vehicle traveling the roadway, 34 percent involve some characteristic of the roadway, and 93 percent involve human factors Of the total collisions represented by this figure, 57 percent involve human factors alone, 3 percent involve roadway environment factors alone, 2 percent involve vehicle factors alone, and 37 percent involve a combination of these Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 134 of 325 Page ID #:2441 135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 factors (the numbers do not add up t 100 percent because of rounding. This information shows the importance of focusing on the three factors that can occur in every collision in order to develop safety improvement strategies in engineering, education, enforcement, and emergency medical services” The Report further states in part: ”V. Methodology. Two different methodologies, one for SHP and another for local streets and roads, were used for identifying the top 5 percent locations included in this Report. ………….. Local Method Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 135 of 325 Page ID #:2442 136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The California Highway Patrol’s Statewide Integrated Traffic Records System was used to obtain collision information for identifying locations on local streets and roads for this Report. The local streets and roads were divided into 0.5-mile segment within each county, resulting in a total of 280,166 segments. Collision concentrations were determined for segments on which at least one fatal or severe injury collision occurred from 2006 through 2008, with the assumption that these areas could have potential safety needs. There were 17,535 segments identified and sorted to generate lists by Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 136 of 325 Page ID #:2443 137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County. Each County list was sorted from high to low by the number of fatal or severe injury collision for each segment. Following that, the top 5 percent segments for each of these county lists were identified. Segments with a least three or more fatal or severe injury collisions were included in this Report as locations. The results (870 locations) are shown in Appendix B.” The reports further states: “Local Streets and Road “How to read the table The locations in Table 5 are sorted by County. The table displays location information in the following columns: 1. No. Location identification number. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 137 of 325 Page ID #:2444 138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. County: The California County where the local street r road is located. 3. Primary: the name of the street or road for the location. 4. Secondary: The reference cross street or road intersection with the primary street or road. 5. From/TO: The distance from the intersection of the primary and secondary street or road along the primary street or road defining the 0.5-mile segment. A “minus” means either south of or west of, depending on the direction of the street.” The Report further states in columns of Table 5: “No. 463, County: Los Angeles; Primary : Big Tujunga Canyon Road; Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 138 of 325 Page ID #:2445 139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Secondary: Vogel Flat Road; From: 4717; To:7357”. P70 A. The 2009 5 percent report states in Part V. Methodology: The California Highway Patrol’s Statewide Integrated Traffic Records System was used to obtain collision information for identifying locations on local streets and roads for the Report. The local streets and roads were divided into half-mile segment within each county, resulting in a A. Exh. DKG 47 App.1186 A. Disputed. Unupported by admissible evidence. B. Undisputed as to what the document states. Objection. FRE 401; lacks foundation and misstates the evidence. The 5% report is inadmissible pursuant to 23 U.S.C. section 409. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 139 of 325 Page ID #:2446 140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 total of 275,664 segments. Collision concentrations were determined for segments on which at least one fatal or severe injury (S+SI) collision occurred from 2006 through 2007, with the assumption that these areas could have potential safety needs. There were 18,818 segments identified that could have potential safety needs. These segments were sorted to generate lists by County. Each list was sorted from high to low by the number of F+SI collision per segment. Following that, the top 5 percent segments for each of these lists were identified. Locations with a least three or more F+SI were included in Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 140 of 325 Page ID #:2447 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Report as locations. The results (892 locations) are shown in Appendix B P71 The web site home page of the CALTRANS Division of Local Assistance states: “ Division of Local Assistance Caltrans' Local Assistance Program oversees more than one billion dollars annually available to over 600 cities, counties and regional agencies for the purpose of improving their transportation infrastructure or providing transportation services. This funding comes from various Federal and State programs Exh. DKG 49 http://www.dot.ca. gov/localassistance /index.html. App.1188; (I’ll have to see what the evidence says) Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 141 of 325 Page ID #:2448 142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifically designed to assist the transportation needs of local agencies. Annually, over 1,200 new projects are authorized through the Local Assistance Program of which approximately 700 are construction projects. The Local Assistance Program, made up of the Division of Local Assistance in Headquarters and 12 District Local Assistance Offices, assist Local and Regional Agencies by ensuring specific program requirements are met, project applications are processed, and projects are delivered in accordance with Federal and State requirements.” Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 142 of 325 Page ID #:2449 143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P72 The CALTRANS local assistance program office serving the counties of Los Angeles and Ventura is District 7, is located at 100 S. Main Street. Los Angeles. http://www.dot.ca.gov/h q/LocalPrograms/dlae.ht m#7 Exh. DKG 50; App.1192. (I’ll have to see what the evidence says) P73 B. The subject collision occurred about 1330 feet west of Mile Marker 5.69 on BTCR and about 5300 feet east of the Vogel Flats intersection. B.Exh.DKG (Jeffery report) App. 1266; 1280; Declaration of James Jeffery, para. 4; App.1367 Undisputed P74 P75 P76 A. On February 10, 2016, Plaintiff Kamal caused a subpoena issued by this Court on 12/14/2015 to be served upon CALTRANS, Division 7, 100 South Main Street Los Angeles, A.Exh. DKG 13 App. 388-393. (I’ll have to see what documents state) Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 143 of 325 Page ID #:2450 144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CA 90012 requesting “ Documents showing amount of federal funds, other than for emergency relief County of Los Angeles has received since January 1, 2009 for road purposes Only produce documents with total amounts granted per year and per federal highway safety program” B. On March 23, 2016, the custodian of records of CALTRANS District 7 produced to Plaintiff’s counsel by email the documents requested in the subpoena referred to in P76 A above with the accompanying declaration of custodian of records, showing that FHWA granted a total of $7,124,980.64 in federal funds to County of Los B. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 144 of 325 Page ID #:2451 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Angeles pursuant to federal highway safety improvement programs that include the HSIP. C. The records produced on March 23, 2016 show that none of the federal funds that granted as referred to in 76 B above was applied to Big Tujunga Canyon Road and any segment of it. C. Id. App. 396- 401. P78 James Jeffery, P.E, testified at his deposition on June 23, 2016 “ Q. Do you know how much it costs on average to post a warning sign such as the sign with a curve or symbol or speed plaque? A. I thought I put in here a thousand dollars. But that's -- that's -- that's a reasonable Exh. DKG 52 (Jeffery Deposition) 89:14- 25. App.1249. Undisputed that was his testimony Objection. FRE 401; lacks foundation and misstates the evidence. The 5% report is inadmissible pursuant to 23 U.S.C. section 409. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 145 of 325 Page ID #:2452 146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 estimate. Q. Okay. More or less that's in the ballpark, a thousand dollars for a sign, correct? A. You know, more -- more or less. I don't think it's going to be 500, and I don't think it's going to be 2,000.” P79 A. In response to Plaintiff’s First Set of Interrogatories, Interrogatory No. 18 asking “What did Defendant United States do since January 1, 200 to either remedy or make County of Los Angeles remedy the hazardous condition of the Vogel Flats segment of Big Tujunga Canyon Road identified in Entry 463, at pa. 25, of the State of California 5% report for A. Exh.DKG 10 of DKG Decla. (USA Answers to Rogs 1, no. 17-21 App. 332; Exh.DKG 11 USA supplemental Answers to Rogs 1, no. 17-21) App.355; Undisputed that is what the document states. Objection. The 5% report is inadmissible pursuant to 23 U.S.C. section 409. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 146 of 325 Page ID #:2453 147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2010 submitted to the United States Department of Transportation pursuant to the SAFETEA-LU ACT?”, Defendant responded as follows: “ See Response to Interrogatory No. 17” which response states: “Objection. The document speaks for itself. The forest Service does not maintain these records. Discovery and investigation is still ongoing and Defendant reserves the right to supplement his response at a later date.” Defendant further responded in supplemental responses: “The Forest Service lacks sufficient information to respond to this Interrogatory at this Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 147 of 325 Page ID #:2454 148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time. Discovery and investigation is still under way and Defendant reserves the right to supplement this response at a later date” B. Defendant has not produced supplemental responses since then. B. DKG Decla. para.61; App.199. P80 A. In response to Plaintiff’s First Set of Interrogatory, Interrogatory No. 19, asking “Did Defendant United States grant funds at any time since January 1, 2000 to the State of California and/or County of Los Angeles to remedy or mitigate the hazardous condition of any segment of Big Tujunga Canyon Road, including the “Vogel Flats” segment designated by the 5% A. Exh.DKG 10 and 11 at App. 332, 355-356; Undisputed that is what the document states. Objection. The 5% report is inadmissible pursuant to 23 U.S.C. section 409. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 148 of 325 Page ID #:2455 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 report referred to in Plaintiff’s Interrogatory to in Interrogatory No. 18 above?” Defendant has responded: “ See Response to Interrogatory No. 17” which response states: “Objection. The document speaks for itself. The forest Service does not maintain these records. Discovery and investigation is still ongoing and Defendant reserves the right to supplement his response at a later date.” Defendant further responded in supplemental responses: “The Forest Service lacks sufficient information to respond to this Interrogatory at this time. Discovery and investigation is still Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 149 of 325 Page ID #:2456 150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under way and Defendant reserves the right to supplement this response at a later date”. B. Defendant has not produced any supplemental response since then. B. Exh. DKG at para. 55; App.196. P81 A. In response to Plaintiff’s Request for the Production of Documents No. 15 requesting “Documents, including but not limited to reports of completion of work, financial report and accounting records showing how money was spent, relating to grants United States has made to the State of California and/or County of Los Angeles for the repair, maintenance and remediation of hazardous A. Exh.DKG 16 (USA First RPD, No. 15);App. 479 Exh.DKG 17 (USA Supp. RPD 1). App.520-521. Exh. DKG 16 para. 62, 199-200. Disputed. Unsupported by admissible evidence. Objection. FRE 401; lacks foundation and misstates the evidence. The 5% report is inadmissible pursuant to 23 U.S.C. section 409. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 150 of 325 Page ID #:2457 151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 condition of that segment of road identified as “Vogel Flats” in the State of California “5% report submitted to the United States Department of Transportation pursuant to SAFETEA-LU ACT in August of 2010, entry 463 at page 25”. Defendant has responded as follows: “This request calls for documents not created or maintained by the Forest Service during its normal course of business. In addition, the Forest Service maintains that Big Tujunga Canyon Road is a Los Angeles (L.A) County Road. The Los Angeles County Road Department Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 151 of 325 Page ID #:2458 152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obtained Special Use Permits for road right of way from the Forest Service on May 12, 29130 and May 17, 1943 for rights of way not exceeding 66 feet in width over National Forest land in Angeles National Forest, for the purpose of improving and maintaining the road. The road is not on the Forest Road’s inventory. The 1930 permit covers the lower portion while the 1943 permit covers the upper portion. Please see permits at Exhibits B and C. This request may also be construed as broad.” Then, in a supplemental response: “After conducting a Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 152 of 325 Page ID #:2459 153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 diligent search, the Forest Service determined it is not in possession of documents responsive to this request. In addition, the Forest Service maintains that Big Tujunga Canyon Road is a Los Angeles (L.A) County Road. The Los Angeles County Road Department obtained Special Use Permits for road right of way from the Forest Service on May 12, 29130 and May 17, 1943 for rights of way not exceeding 66 feet in width over National Forest land in Angeles National Forest, for the purpose of improving and maintaining the road. The 1930 permit covers the lower portion while the 1943 permit Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 153 of 325 Page ID #:2460 154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 covers the upper portion. The Forest Service does not have documentation on the road beyond 1943.” B. In response to Plaintiff’s Request for the Production of Documents No. 16 requesting “All documents relating to oversight and supervision United States exercised over County of Los Angeles’ actions in connection with the operation, maintenance and repairs of Big Tujunga Canyon Road, including financial accountability, since January 1, 2005” Defendant responded as follows: B. Exh.DKG 17 (USA Supp. First RPD, No. 16);App.521-522 Exh.DKG 16 (USA RPD 1). App. 479. DKG Decla. para. 63, 200-201 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 154 of 325 Page ID #:2461 155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “ This request calls for documents not created or maintained by the Forest Service during its normal course of business. In addition, the Forest Service maintains that Big Tujunga Canyon Road is a Los Angeles (L.A) County Road. The Los Angeles County Road Department obtained Special Use Permits for road right of way from the Forest Service on May 12, 29130 and May 17, 1943 for rights of way not exceeding 66 feet in width over National Forest land in Angeles National Forest, for the purpose of improving and maintaining the road. The road is not on the Forest Road’s inventory. The 1930 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 155 of 325 Page ID #:2462 156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permit covers the lower portion while the 1943 permit covers the upper portion. Please see permits at Exhibits B and C. This request may also be construed as broad.” And then, in a supplemental response: “Objection. This invades the deliberative process privilege and is overly broad. Without waiving such objections, Defendant responds: After conducting a diligent search, the Forest Service determined it is not in possession of documents responsive to this request. In addition, the Forest Service maintains that Big Tujunga Canyon Road is a Los Angeles Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 156 of 325 Page ID #:2463 157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (L.A) County Road. The Los Angeles County Road Department obtained Special Use Permits for road right of way from the Forest Service on May 12, 1930 and May 17, 1943 for rights of way not exceeding 66 feet in width over National Forest land in Angeles National Forest, for the purpose of improving and maintaining the road. The road is not on the Forest’s inventory. The 1930 permit covers the lower portion while the 1943 permit covers the upper portion. The Forest Service does not have documentation on the road beyond 1943. Please see. Exhibits C and B.” Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 157 of 325 Page ID #:2464 158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COLLISION P82 A. The subject collision occurred on BTCR on April 17, 2011. B. The California Highway report of Collision of April 17, 2011 relating to this collision, authored by CHP Officer Dustin Sherman, states that the collision occurred on Big Tujunga Canyon Road 1321 feet west of CFM 5.69. C. James Jeffery testified as follows: Q. In your report you identify the accident location as 1330 feet west of mile post marker 5.69. Where did you get A. Exh.DKG 22 (Kamal Deposition at 58:12-15) App.708. B.Exh. DKG 19 App.673. C.Exh. DKG 52 Jeffery Deposition, 30:19-25, 31: 1-17. App.1210, 1211 A. Undisp uted B. Undisp uted that is what the docum ent states. Undisputed that was his testimony. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 158 of 325 Page ID #:2465 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that information? A. Out of the traffic collision report, on the first or second line. Q. And you're sure that it was mile post 5.45? Is that what your testimony is? A. That's my calculation. Q. What do you mean, your calculation, sir? A. Well, I took the mile post that they said knowing -- and knowing that the mile posts go uphill, it was -- which is eastbound, and it was 1330 feet, divided that into a mile, find out the decimal equivalent of that, and subtracted it from 5.69 to come up with 5.45.” P83 BTCR was open to motorists on April 17, Exh.DKG 22 (Kamal Depo. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 159 of 325 Page ID #:2466 160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2011. 64:12-18). App. 711. P84 This was the plaintiff’s first time on BTCR. Exh.DKG 22 (Kamal Depo. 133:23). App. 750. Undisputed P85 A motorcycle operated by Samuel Morales (“Morales”) came out of its lane at a curve and hit the plaintiff. Exh.DKG 22 (Kamal Depo.at 81:6-19). App. 712. Undisputed P86 Plaintiff was on his lane when Morales’ motorcycle hit him. Id. Undisputed P87 Plaintiff was driving east and Samuel Morales (“Morales”) west when the collision occurred. First Amended Complaint (”FAC”) at para. 24. Undisputed P88 Plaintiff sustained horrific injuries to his left leg as a result of the collision. Exh.KK 1A, 1B and 1C (photos of injuries). App. 1448-1450; Exh.DKG 22 107:14-23; App. 738. Undisputed that Plaintiff sustained injuries to his left leg. Objection. FRE 401. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 160 of 325 Page ID #:2467 161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P89 Plaintiff observed the severity of his injuries while at the collision scene and was aware of what was happening from the moment he was hit to the moment he was in the care of doctors at the hospital. Exh.DKG 22 (Kamal Depo. 107:15-23) pp. 98 through 118:1-16). App. 738-749; 1443. Undisputed that was his testimony P90 Plaintiff was in extreme pain and believed that he was going to die. Exh.DKG 22 (Kamal Depo. P. 104:19-25; 105:6- 8; 106:6-7, 13-16). App. 735-737. Undisputed that was his testimony P91 Plaintiff has been suffering from severe anguish, sleep disorders, pain and discomfort since then. Exh.DKG 22 (Kamal Depo. 150:3-25, 1151:1- 10) App. 751; 752. Undisputed that was his testimony Objection. FRE 401. POST-COLLISION AND MEDICAL TREATMENT P92 “It is essential for persons in need of trauma care to receive that care California Health and Safety Code Section 1797.198 Undisputed quote from statute. Objection. FRE 401. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 161 of 325 Page ID #:2468 162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 within the 60-minute period immediately following injury. It is during this period, referred to as the "golden hour," when the potential for survival is greatest, and the need for treatment for shock or injury is most critical”. (e) P93 The collision occurred between 1:30 and 1:45 pm. FAC at. para. 24. Undisputed P94 Plaintiff attempted to call 911 but there was no cell phone reception in the area. Exh.DKG 22 KK Depo 105:19-25). App.736. Undisputed P95 A stranger went to the City of Los Angeles to get help. Exh.DKG 22 (KK Depo. 105:19-25, 106:2-8). App. 736- 737 Undisputed that was his testimony Objection. FRE 401. P96 City of Los Angeles Fire Department was dispatched at 2 pm. Exh.DKG 29 (EMS report for KK). App. 976. Undisputed that County Fire Department Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 162 of 325 Page ID #:2469 163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dispatched at 2 pm. P97 At approximately 2:49 PM, a USFS Engine operated by USA employees Gonzales, Pina, Gomez, and Garcia drove upon the scene; Garcia also responded. Exh.DKG 15 (Deposition of David Gonzales Depo. 8:3-9 App.428; Report App. 468. Undisputed P98 A. Pina, Pizano and Gonzales received adequate first responder training to provide medical assistance, with Gonzales having received the highest level of training as a certified EMT first responder. B. Pizano states that he can apply pressure to a wound to control bleeding from a severed artery. A. Exh.DKG 31 (USA Responses to Kamal’s Second Set of Interrogatories (“Rog.2”), No. 24. 2:24-27; 3:1-25 (14 in error) App.980- 984; B. Exh. DKG 42 (Pizano Depo. 12:20-25, 13:1; App. 1142-1143. Undisputed P99 A. USFS employees provided Plaintiff no medical treatment. A. Exh.DKG 22 (Kamal Depo. 109: 24-25, 110, 117:21- 23) App. 740-741; A. Disputed. Unsupported by admissible evidence. Deposition of David Gonzalez (“Gonzalez”), at 10:5-20; 25:13- Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 163 of 325 Page ID #:2470 164 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. USFS employee David Gonzales testified as follows: “A. Patient two was in the road in full head to toe motorcycle leathers with his lower left leg bone sticking through the leathers. Q. And does this match Exh.DKG 38 (Hernandez Deposition Transcript at 30:10- 24) App. 1121 B.Exh. DKG Exh. DKG 15 __ David Gonzales Deposition (“Gonzales Depo.”) (p. 12:1-25, 13:1-7; App.432-433 B. Undisputed that was his testimony. C. Undisputed as to what the document states. 17. Ex. DKG 18 (ANF Report). App. 375. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 164 of 325 Page ID #:2471 165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 your recollection of the state of the second victim. A. Yes.” And then: “Q. Okay. So your testimony is that you treated the victim with the wounded leg, but you don’t recall what you did specifically? MR: STAUB: other than that he’s already testified? He said he put a leg splint and bandaged him. THE DEPONENT: That—yes. I don’t know whether I assisted L.A. County. We probably did that ourselves, but I can’t remember whether we assisted the County with that. Q. BY MS. KAMAL- GRIFFIN: Are you sure that you put a splint on the leg? Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 165 of 325 Page ID #:2472 166 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Can you clarify the question? Q. Okay. You testified that you put a splint. A. Mm-Hmm. Q.—on the leg, and I am asking you are you (sic) you did that? MR. STAUB :If you recall. If you don’t— THE DEPONENT: I don’t recall. Q. BY MS. KAMAL- GRIFFIN: Okay. A. I don’t recall if I personally did it. I don’t’ recall. Q. And same question. Are you sure you put a bandage on the leg? A. I don’t recall. Q. Did any one of the other officers, Gomez or Pina or Pizano, treat the wounded? A. Gomez helped. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 166 of 325 Page ID #:2473 167 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Do you know who he helped? A. He helped the—he was helping out the RN, with the head injury.” C. David Gonzales reported that: “Patient one was lying in the road breathing on his own, pupils fixed and dilated, with major head trauma. He was also combative. Patient two was in the road in full head to toe motorcycle leathers with his lower left leg bone sticking through his leather. For patient one all we could do was bandage his wounds, monitor his vitals.” D. Hernandez, a witness who found Morales and Plaintiff lying on the C. Exh. DKG 15 App.468. D. Exh.DKG 38 (Hernandez Deposition Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 167 of 325 Page ID #:2474 168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 road, testified as follows: “ Q Okay. At any time when you were at the scene of the accident, did you speak with the other motorcyclist, not Mr. Morales? A No. No. Q Did you hear him say anything, the other motorcyclist? A Correct. Correct. Q What did you hear him say? A He was hurt, but he was conscious. He was asking for help, screaming. Q Do you recall anything else he said, if he said anything else that you heard? A No. He just said -- can I say the word? Q Yes. A (In English) "Fuck. Transcript at 26:17- 25; 27:1-14; 30:10- 24) App. 1117-1118, 1121. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 168 of 325 Page ID #:2475 169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When are they going to come and pick me up?" (Through interpreter) He said, "Fuck. When are they going to come and pick me up?" Q And who was he referring to, if you know. MR. SCHENKMAN: Calls for speculation. You can answer. THE WITNESS: I don't know. BY MR. WILLIAMS: Q Do you recall anything else he said? No. He was saying a lot. He was like -- I don't know. Maybe because of the same pain, he was angry and he wanted somebody to tend to him. ……. Q Did anyone of an official capacity arrive Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 169 of 325 Page ID #:2476 170 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 before police officers? A I don't recall. But I believe -- I believe the rangers came, I believe, if I'm not mistaken. But I'm not sure. Q Do you recall the ranger -- a ranger coming? A What? What? I'm sorry. Q Do you recall a ranger coming at any time? A Yes. Yes. I did -- I did -- I think the rangers are the ones who came. Q Okay. How many rangers came? A I don't recall. I don't recall. Q Was it more than one? 16 A No. I just saw a car. Q Saw a car And your question about that is whether or not Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 170 of 325 Page ID #:2477 171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the ranger arrived before or after officers? A No. The ranger arrived first. Q So now you recall the ranger did arrive first? A Okay. When the rangers arrived, they arrived and they didn't do anything. E. USFS Officer Pizano testified as follows: (“Q. Do you recall whether any one of the Forestry employees who drove upon the scene provided any medical care to anyone---of the victims? A I don’t recall. I’d be speculating.” E. Exh. DKG 42 (Pizano Depo. At 18:17-25. App. 1148 P100 A. David Gonzales reported that USFS discovered the victims on A. Exh. DKG 15 App.468. A. Undisputed as to what the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 171 of 325 Page ID #:2478 172 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the road at 14:49; that Los Angles County Truck 82, Engine 282, Engine 63 and then LAFD paramedic unit 74 arrived within 7 minutes of discovery. B. County of Los Angeles Fire Department Custodian of Records Michael Kranther on September 29, 2015 produced the following documents in response to subpoena issued by the court in this proceeding on July 23, 2015 titled: 1. Response-2011- 0087142-000, which is 7- page long. 2. LAC 11087141-CALL HX, which is 4 pages long. 3. Los Angeles County Fire Department Emergency Medical B. Exh. DKG 29. App.;965 document states. B-G. I must see documents after you cite to App. number Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 172 of 325 Page ID #:2479 173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Services Report Form for Plaintiff with an incident number 087142; 4. Los Angeles County Fire Department Emergency Medical Services Report Form for Samuel Morales with an incident number 087142. C. The EMS report that is attached to the document identified in 100 B above for Plaintiff is signed by M. Dubron, and also by one other person whose signature is illegible; and is initialed at the bottom right corner by an unidentified person. D. Page 3 of the Document Response:2011- 0087142-000 states in part: under “UNIT COPT19 C. Id. App.976 D. Id. App. 967 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 173 of 325 Page ID #:2480 174 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Responsible for Full Report: Yes Main Use 3-Other Unit Type 43-Helicopter Number of Personnel 1 Dispatch Time: 04/17/2011 14:43:43 Enroute Time: 04/17/2011 14:50:02 Arrival Time: 04/17/2011 14.59:25 Enroute facility time: 04/17/2011 15:19:57 Arrived facility time: 04/17/2011 15:23:23 Clear Time 04/17/2011 16:02:21 Reporting member: 407240 DUBRON MICHAEL A. Assignment Date: 04/17/2011 E. Page 4 of the Document Response:2011- 0087142-000 states in E. Id . App. 968 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 174 of 325 Page ID #:2481 175 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 part: “Twenty personnel responded.” “……. Both patients were in critical condition.” F. Michael Dubron, of Los Angeles County Fire Department is the reporting officer on the rescue of Plaintiff in connection with the subject collision G. The EMS reports of Morales and Plaintiff indicate that the transfer of care to hospital occurred at 15:26. H. Both victims of the collisions were about 50 at the time of the collision. F. Id. App.967 G. Id at App. 967. H. Exh.DKG.19__(p. 1 of the Traffic Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 175 of 325 Page ID #:2482 176 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Collision Report (Indicating dates of birth). App. 673. P101 Plaintiff testified at his deposition of January21, 2016 as follows: “Q. All right. The CHP officer was just one officer? A. At first, yes. Q. Do you know his name? A. No. Q. Did he attend to you in any fashion? A. Absolutely not. Q. Okay. There was some civilians there who were attending to you? A. Yes. Q. How many were helping you? A. Just one man. Q. Okay. Do you know who that was? A. Stuart Hipkins. Exh.DKG 22 (Kamal Depo. 11, 110-114:9-15;) App.741-745; Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 176 of 325 Page ID #:2483 177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ……………. Q. What did Mr. Hipkins do for you? A. Saved my life. Q. More specifically? A. He put his fingers in my arteries to stop the bleeding. Q. Was he a medical provider of some kind? A. He’s retired. I learned later, a retired officer from the penitentiary system. Q. A prison guard? A. Yes. ……. Q…When does the next law enforcement or emergency responder arrive? A. There’s a red truck that came down the hills. Q. Do you know what time that was that arrived (sic)? A. I would say it was Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 177 of 325 Page ID #:2484 178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 about an hour after the accident. ………… Q. And do you know-was this a county truck or a fire service truck? A. It was a red truck. So I think it’s LA County. Q. Did you see any insignia or words on the truck? A. I remember it was a paramedic truck because that truck almost killed me. Q. You remember it was a what truck? A. It was an LA County Fire— Q. Okay. A.---truck. Q. Okay. Did anybody on the county fire truck assist you? A. No. Q. What do you recall seeing county firefighters Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 178 of 325 Page ID #:2485 179 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the red truck do for--- do after they arrived, anything that you saw them do? A. What they did when they arrived, they got out of the truck very fast. They left the door open. They came to look at me because I was the first one in their direction going west. They looked at me and someone screams. The truck—the truck is rolling. I turn my head, and I saw the truck coming toward me. They didn’t put the brake on or they had a problem with the brake. Someone jumped in the truck and was able to stop the truck just a few feet from me. Q. Ok. What else did you see these firefighters on the county truck do or--- A. They secured the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 179 of 325 Page ID #:2486 180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 truck, and the next thing I know they jumped over me to go to Morales, and from there no one attended to me beside cutting my leather and just letting Mr. Hipkins take care of me. Q. Okay. So these firefighters literally jumped over you and didn’t attend to you at all? A. No. Q. And then they went over to see Mr. Morales? A. That’s correct.” AND “A. I was asking for help, and the only response I was getting is, keep quiet. The other one is in a much worse condition. Q. And who said that? A. It could be the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 180 of 325 Page ID #:2487 181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 paramedic. It could be the CHP. I don’t know.” P102 P103 A. The non-USFS paramedics’ on the ground took Plaintiff’s pulse and blood pressure and did not provide further treatment. B. Plaintiff testified as follows: “Q. Okay. What’s the next thing you remember? A. That eventually the third helicopter came, and they were trying to get us—whatever, the gurney. They call it the gurney. It was apparently very difficult to put Mr. Morales in one piece on the gurney because of his A. Exh.DKG 22 App. 554 (Kamal Deposition at 117:18-23) App.748 also Exh. DKG 29 (EMS Report) App. 967. B. Exh.DKG 22 (Kamal Deposition, 115:13-21; 117:6- 23). App. 746-747 A. Disputed. Unsupported by admissible evidence. B. Undisputed as to what the document states Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 181 of 325 Page ID #:2488 182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury, from what I understood later, and they secured me. And they took them may be 10 minutes or so to get us in the helicopter, and we took off” AND “Q. And when the helicopter arrived what did the helicopter attendants or responders do for you, if anything? A. I was just put in the helicopter first waiting for Mr. Morales to be boarded on the helicopter. SO nothing happened besides being on the gurney and waiting. Q. And this helicopter, do you know if it was a county helicopter or… A. It was a green and Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 182 of 325 Page ID #:2489 183 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 yellow helicopter. ……………. Q. All right, but other than picking you up and putting you on a gurney, did they attend to you, these EMTs? A. No. Beside cutting my leather I don’t remember. They may have taken my pulse but I do not remember that.” P104 P105 Pina, Pizano, Gomez, Gonzales and Garcia did not provide Plaintiff treatment after the local authorities paramedics arrived. Exh.DKG 22 (Kamal Deposition at 112:21-23, 113:13-21, 114:2- 12); App.743-745 Undisputed P106 P107 P108 At one point, Plaintiff saw two Los Angeles County helicopters hover over the scene for a few minutes then continue on. Exh.DKG 25 (Kamal Deposition 114:20-25, 115:1- 12). App.745,746. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 183 of 325 Page ID #:2490 184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P109 An officer at the scene explained to Plaintiff that the helicopters were looking for other victims. Id. Undisputed as to what the document states. P110 The timeline for the helicopter transportation to a Holy Cross Providence Hospital is as follows: a helicopter arrived at 14:59 PM; the helicopter paramedics were at Plaintiff at 15:09 pm; the helicopter left at 15:19 pm; the helicopter arrived at the hospital at 15:23 pm and the transfer of care to the hospital was at 15:26 PM Id. at P100D App. 967. Undisputed P111 The paramedics put Plaintiff in the helicopter first. Exh.DKG 22 Kamal Deposition at 115:13-23, 117:6-12). App. 746, 748. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 184 of 325 Page ID #:2491 185 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P112 Plaintiff waited 10 more minutes without treatment before the helicopter took off. Exh.DKG 25 (Kamal Depo. 115:11-21) App. 746 Undisputed as to what the document states. P113 P114 USA employees reported that Morales sustained major head trauma. Exh.DKG 15 (ANF Report). App. 468. Undisputed P115 Plaintiff was in critical condition; Morales’ condition worsened at the scene. Exh. DKG 29 (LACO FD report). App.968, 970 Undisputed that LACO FD reported both in critical condition. P116 Holy Cross Providence Hospital is about 17 miles away from the site of the collision by road. Exh.DKG 30 to DKG Decla. (Mapquest showing distance from Vogel Flat to hospital) App. 978. Unknown P117 On arrival at Holy Cross Providence Hospital, a man introduced himself to the plaintiff as the Chaplain of the hospital. Kamal Declaration para. 3. App. 1443. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 185 of 325 Page ID #:2492 186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P118 The plaintiff believed that his death was imminent. Id. Undisputed as to what the document states. P119 The plaintiff underwent multiple surgeries to salvage his leg from amputation. (FAC para.96, 97). Undisputed that plaintiff underwent multiple surgeries. P120 The plaintiff suffered a post-operative pulmonary embolism two weeks after discharge and was hospitalized again for 10 days as a result of the embolism. Id Undisputed DEFENDANT USA’ AMINISTRATION OF BTCR P121 A. In response to Plaintiff’s Interrogatory No. 22 asking: “Since Angeles National Forest became a federal land, what powers, privileges, and duties, if any, did the United States Government completely A. Exh.DKG 10 (USA Supp. First Rogs. 1 pp.10-11, No. 22). App. 356- 357.Exh. DKG 11 App. 356-357 Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 186 of 325 Page ID #:2493 187 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 surrender, thereby forfeiting any right to demand accountability, to County of Los Angeles and State of California, as regards the administration of Big Tujunga Canyon Road in Angeles National Forest including but not limited to the operation and maintenance of Big Tujunga Canyon Road, the enforcement of traffic laws and the rescue of citizens/victims of accidents on Big Tujunga Canyon Road?” USFS initially answered on October 20, 2015 as follows: “Please see special use permits provided for Request No. 4 in Plaintiff Karim Kamal’s First Request for Production Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 187 of 325 Page ID #:2494 188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Documents to Defendants.” Then, in its supplemental responses dated December 23, 2015, Defendant answered: “Objection. Call for a legal conclusion. Without waiving said objection, defendant responds as follows: the Forest Service lacks sufficient information to respond to this interrogatory at this time. Discovery and investigation is still underway and defendant reserves the right to supplement this response at a later date. Please see special use permits provided for Request no. 4 in Plaintiff Kamal’s First Request for Production of documents Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 188 of 325 Page ID #:2495 189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Defendant.” B. Defendant produced to Plaintiff in response to Request for Production to No. 4 , Special use permits of 1930 and 1943 attached as Exhibits B and C. C. Defendants have not produced any documents responsive to Request 22 beyond the Special use permits of 1930 and 1943. B. Exh. DKG 16 App. 471-472. C. DKG Decla. at 64, App. 202. P122 ANF Forest Engineer (and Acting Deputy Supervisor on February 23, 2016) Sonia Bergdahl and Special Use Permit Administrator Graham Breakwell contend that USA owns the land on which BTCR sits but that USA does not own the Exh.DKG 3 (Bergdahl 10:4-5) App. 214; Exh.DKG 6 (Breakwell Depos.) 13:22-24) App. 220. Undisputed that was their testimony. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 189 of 325 Page ID #:2496 190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asphalt. P123 ANF Forest Fire Chief Garcia believes County of Los Angeles owns BTCR. Exh.DKG 28 (Garcia Depo. 28:25, 29:2) App. 958-959 Undisputed but Garcia stated that it was not his area of expertise. P124 In response to Plaintiff’s interrogatory No. 9 asking Defendant:” Did County of Los Angeles, including County of Los Angeles Department of Public Works, comply with all the requirements it was obligated to comply with pursuant to contract with United States as relates to the design, maintenance, construction and operation of Big Tujunga Canyon Road since United States first granted a right of way to County of Los Angeles?” Exh. DKG 10 App. 329-330. Exh.DKG 11 (USA Supp. First Rogs, No.9). App. 353 Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 190 of 325 Page ID #:2497 191 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant answered as follows on October 20, 2015: “Defendant lacks sufficient information to respond to this interrogatory. Please see special use permits provided in response to Request No. 4 in Plaintiff Karim Kamal’s First Request for the Production of Documents.” AND then, in Supplemental responses on December 23, 2016: “Defendant lacks sufficient information to respond to this interrogatory at this time”. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 191 of 325 Page ID #:2498 192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P125 USA Forest Engineer (and Acting Deputy Supervisor as of February 23, 2016) Sonia Bergdahl and Special Use Permit Administrator Graham Breakwell state that USA does not supervise Los Angeles County in regards to how COLA maintains and operates the road. Exh.DKG 3 of DKG Decla. (Bergdahl Depo. (16:8-12, 20:1-11, 21:1-13) App.220, 224,225. Exh.DKG 6 of DKG Decla. (Breakwell Depo. 26:23-25, 27:3-5, App.273,274. Exh.DKG 34 (USA Responses to Interrogatories Set 2 (“Rogs. 2”), no.25 p.6 lines 24- 27). App. 651. Undisputed that was their testimony. P126 Special Use permits administrator Graham Breakwell testified at his deposition as follows: “Q Okay. Could you then look at Section 1.3, and could you tell me what the title is? A "Observance of Laws Exh.DKG 6 (Breakwell Depo.at 17:15:25. 18:15-18; App.264-265. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 192 of 325 Page ID #:2499 193 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Regulations." Q Okay. Could you read it out, please. A "The permittee shall comply with Federal, State, and County laws rules and regulations -- and regulations of the Department of Agriculture governing the administration and protection of the National Forests, as are applicable to the premises." Q Okay. …………… Q Okay. Thank you. Do you have a procedure in place to make sure that the County or the permittee -- the County, in this case, complies with the laws? A Not that I'm aware of. I don't know.” Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 193 of 325 Page ID #:2500 194 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P127 A. USA and its employees conducted inspections of BTCR in the past. B. USFS District Ranger J. McINTYRE wrote Mark Caddick District Engineer Road Maintenance Division-M.D.5 Los Angeles County Department of Public Works 38126 North Sierra Highway , Palmdale, CA 93550 a letter dated October 30, 2009 stating in part: “Dear Mr. Caddick. : The Station Fire has created a need to do extensive culvert cleanout and maintenance along the Angles Forest Highway, A. Exh.DKG 17. App.543-547. B. Exh.DKG 17 of DKG Decla. (RPD 0029). App. 537. UnDisputed. Unsupported by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 194 of 325 Page ID #:2501 195 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Aliso Canyon Road, Upper Big Tujunga Canyon Road, Mount Wilson Red Box Road and the Big Tujunga Canyon Road. You are authorized to perform extensive maintenance along the above mentioned roads in order to improve drainage after the Station fire and before upcoming storms. This includes 1) reopening of existing equipment access ramps to culvert inlets; 2) construct new access ramp, 3) removal of debris, primarily sediment rocks and dead vegetation blocking drainage inlets; repair or install trashracks, grate covers and sandpipes at the sites indicated in Exhibit 1 and Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 195 of 325 Page ID #:2502 196 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 according to Exhibit 2 Avoidance and Mitigation Measures and Exhibit 3 Cultural Sensitive Areas for the Department of Public Works Cleanouts and Improvements in Response to the Station Fire”. C. James Jeffery declares as follows: “ A culvert is a structure that allows water to flow under a road, railroad, trail, or similar obstruction from one side to the other side. Typically, embedded so as to be surrounded by soil, a culvert may be made from a pipe, reinforced concrete or other material. Culverts are integral parts of the road design and cannot C. Declaration of James Jeffery in Support of Plaintiff’s Opposition to USA MMSJ and in Support of Plaintiff’s MSJ, para.5, App.1367, 1368. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 196 of 325 Page ID #:2503 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be dissociated from the surface of the road. A poorly engineered, constructed or maintained culvert could have deadly consequences on road users as a defective culvert could collapse, and with it the road itself. Culverts must also be properly sized and installed, and protected from erosion and scour.” P128 USA has produced 5 documents in its supplemental responses to Plaintiff’s Request for the Production of Documents titled “REPORTS ON CONDITIONS OF SPECIAL USE AREA” titled and dated as follows, with partial quote from documents: Exh.DKG 17. App.543-547. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 197 of 325 Page ID #:2504 198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. REPORT ON CONDITIONS OF SPECIAL USE AREA Los Angeles County Road Department Big Tujunga Canyon Road 1/29/44; Condition of improvement: Satisfactory Are the conditions of the permit complied with? Yes; 1/26/63. 2. REPORT ON CONDITIONS OF SPECIAL USE AREA Los Angeles County Road Department Road 1/29/44; Condition of Improvement: Good; Are the permit conditions complied with? Yes. August 21, 1965. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 198 of 325 Page ID #:2505 199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. REPORT ON CONDITIONS OF SPECIAL USE AREA (content illegible except” Are the permit conditions complied with? Yes); 4. REPORT ON CONDITIONS OF SPECIAL USE AREA L.ACo. Rd Dept. Big Tujunga Hway; 9/18/51 Are the permit conditions complied with? ____ What action is necessary to correct he unsatisfactory condition? OK. Erosion control and fill stabilization is inadequate. Ranger Wilson is trying to get the County Road Dept. to improve. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 199 of 325 Page ID #:2506 200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. REPORT ON CONDITIONS OF SPECIAL USE AREA 735 LA CO ROAD DEPT BIG “T” RD; Are the permit conditions complied with? Yes; Nov.11, 81. P129 USA Forest Engineer Sonia Bergdahl states that USA does not have any role in maintaining or inspecting BTCR. Exh.DKG 3 (Bergdahl Depo. 15:14-17) App. 219; Undisputed P130 USFS Forest Engineer Sonia Bergdahl testified at her deposition of February 23, 3016 as follows:” “Q Okay. Let's talk about inspection of roads. Does the forestry inspect roads that are not under Exh.DKG 3 (Bergdahl Depo. 15:14-17; 16: 4-7; 18:19-20; 21:8-14). App.219, 222, 225. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 200 of 325 Page ID #:2507 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its sole jurisdiction? A No, we do not. Q Okay. Are you aware of any memoranda of understanding or procedure guidelines in place with other local road authorities to coordinate inspections on other roads? A No, I'm not.” AND THEN: “Q. Do you know whether the forestry has ever contacted inspections on Big Tujunga Canyon Road since it was constructed? A No, I do not.” AND THEN: Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 201 of 325 Page ID #:2508 202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Q Do you have any procedure in place, and I may have asked that and maybe I'm beating around the bush, but I just want to make sure I'm asking it again to the extent I have not been clear. How do you ensure that the operation and the maintenance of the roads in Angeles National Forest, and I'm talking about roads like Big Tujunga Canyon Road and Angeles Crest Highway, how to you ensure these entities conduct appropriate inspections? A We don't have a role. As I said before, they're the experts, and they determine what is appropriate.” Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 202 of 325 Page ID #:2509 203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AND “”We don’t have the skills or the education to design highways” P131 Administrator Graham Breakwell testified as follows: “A "3.14 Maintenance. Upon completion of the project, the permittee shall maintain the highway road to the standards as constructed under the terms of this permit and in a manner satisfactory to the Forest Supervisor." Q What is your understanding of this section, Mr. Breakwell? A Other than what I have read, I have no idea. The road has frequently been resurfaced, and I'm sure Exh.DKG 6 (Breakwell depo 23: 1-13; 26:23-25, 27:3-5). App. 270, 273 Undisputed that was his testimony. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 203 of 325 Page ID #:2510 204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 we don't tell L.A. County how to do their roads, resurfacing roads. Actually, I know we don't. Q Okay. Do you have any procedure in place to make sure that the maintenance is satisfactory to the forestry? A No.” AND: “ Q Okay. Let's say, the road is defective because of some reason and the County has not taken action to remedy the dangerous condition of that road, who at the forestry would have the authority to look into it? ……. THE WITNESS: The years I've been there, we do not tell L.A. County Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 204 of 325 Page ID #:2511 205 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 how to run their roads. They are the experts.” (our emphasis) P132 USFS Forest Chief Sonia Bergdhal testified as follows:” “ Q. Okay. Are you familiar with the Forest Service Manual Travel Management? A I have heard the name. I am not an expert. Q What about the Forest Service Manual on Road Operation and Maintenance? Are you familiar with that Manual? A Again, I've read it. I couldn't quote from it. Q Sure, but you're familiar with the manual? A Yes. Q Okay. When was the last time you read some Exh.DKG 3 (Bergdahl Depo. 12:1-9; 15:18-22; 21:24-25,22:2-13, 22:21-25). App. 216,219, 225, 226 Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 205 of 325 Page ID #:2512 206 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of its provisions? A I don't know.” AND “Q. Okay. Are you aware of any memoranda of understanding or procedure guidelines in place with other local road authorities to coordinate inspections on other roads? A No, I'm not.” AND “Q All right. Are you aware of any efforts by your office to coordinate the management of the roads in Angeles National Forest with other local road authorities? A The only kind of coordination role that we had played is with the County and the State in Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 206 of 325 Page ID #:2513 207 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Forest Service when the roads were going to be closed for disasters, say, storm events. We coordinate so that there is correct information put on the website. We get information out to the public as well as our own facilities and campgrounds, so it's coordination as far as access to Forest Service facilities. Q Are you aware of any effort to coordinate the management of those roads so that the management is consistent? A No.” P133 Sonia Begdahl testified as follows: “ BY MS. KAMAL- GRIFFIN: Exh.DKG 3 (Bergdahl Depo. 23:1-2). App. 227. Undisputed that was her testimony. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 207 of 325 Page ID #:2514 208 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q To your knowledge, has there been, as of April 2011, procedures and guidelines or memoranda of understanding between ANF officials and any other local or State government to coordinate travel planning and analysis in Angeles National Forest with local authorities? A We don't coordinate travel planning with local governments -- the local authorities.” P134 A forest transportation system includes both National Forest System roads and trails and State, County or Local Public Right of Way. These roads are included in a forest transportation Exh.DKG 16 (USA Responses to First RPD “USA RPD “, 0053 (Management)). App. 505. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 208 of 325 Page ID #:2515 209 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 atlas. P135 A forest transportation atlas is a display of the system of roads, trails and airfields in an administrative unit. (36 CFR 212.1). Exh.DKG 16 (USA RDP, 0050 (Management)). App. 503 Undisputed Objection. Rule 401. P136 A forest atlas is a key component of the forest transportation atlas and reflects the location and jurisdiction of roads. Exh.DKG 16 (USA RPD, 0070). App.509 Undisputed Objection. Rule 401. P137 USA Forest Engineer, also the Acting Deputy Forest Service Supervisor on February 23, 2016, does not know what a transportation atlas is. Exh.DKG 3 (Bergdahl Depo. 11:24-25). App. 215 Undisputed that was her testimony. P138 Gonzales reported that one of the victims died en route to the hospital. Exh.DKG 15 (Gonzales ANF report of collision) App. 468; Exh.DKG 17 (Gonzales Depo. Undisputed. Objection. Rule 401. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 209 of 325 Page ID #:2516 210 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35:4:10; 44:13-18; 22-25). App.453; 462 P139 Both victims survived. Undisputed Undisputed P140 Captain Briot testified that USA is not always notified of collisions that occur on roads operated by County or State. Exh.DKG 14 (Briot Depo. P.16:13-16, 19:22). App. 414 Undisputed that was his testimony. P141 Captain Briot testified that USA does not investigate collisions on Angeles National Forest roads, such as BTCR, that are not “forest service” roads. Exh.DKG 14 (Briot depos. 13:17-18). App. 411 Undisputed that Capt. Briot testified that they do not investigate traffic collisions. P142 USA has the authority to investigate collisions. Exh.DKG 16 (Briot Depo. 13:19-22). App.346 Undisputed that Capt. Briot testified that USFS could investigate but do not have authority to make fault decisions. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 210 of 325 Page ID #:2517 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P143 USA and its employees only request copies California Highway Patrol reports if it is notified of a collision and is able to gather information for investigation claims Id at 17:20-25, 18:1-13. App.415- 416 Undisputed that Capt. Briot testified that if USFS is notified of a collision, they would request a report from CHP. P144 USA and its employees did not investigate the subject collision. Exh.DKG 13 and 14 (USA Supp. First Rogs, No. 3). App.327, 327, 328; 348, 350. Undisputed but a report was written by Gonzalez. P145 A. USA and its employee Gonzales did not correct the report to reflect that there was no fatality in the subject collision. Exh.DKG.15 (Gonzales Depo. 44:13-25). App.462 A. Undisputed that Gonzalez reported a fatality based on what he heard from a CHP officer. B. Undisputed as to what the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 211 of 325 Page ID #:2518 212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 document states. P146 A. The procedure is to notify the Forest Supervisor in case of a fatality. B. US Defendant has produced to Plaintiff in these proceeding no record showing that Angeles National Forest Supervisor, the Regional Forester and USFS headquarter in Washington were notified by any USFS employee that the collision of April 17, 2011 involving Plaintiff was reported as involving a fatality at any time since the collision Exh. DKG.4 (Dumpkis Depo.) 15:14-19) App. 243 B. DKG Decla. at para.65.App.203 A.Undisputed B. Undisputed as to what the document states. P147 A. USFS employee Marty Dumpis testified at his deposition on March 9, 2016 as follows : A. Exh. DKG.4 8: 5-25; 9:1-10; 14:19-25; 15: 1- 22; App. 236, 237, 242, 243 Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 212 of 325 Page ID #:2519 213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Q Mr. Dumpis, what is your current job? A I'm the regional forester's representative in Southern California. Q How long have you held that job? A I've held that since October of 2012. Q And where were you before? A Prior to that, I was the deputy forest supervisor on the Angeles. Q Could you tell me what your duties -- your current duties are. A I work for -- we have a team of regional forester representatives throughout the state of California and also Hawaii. And we work on assignments Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 213 of 325 Page ID #:2520 214 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assisting the forests in ecological restoration, partnerships, anything that the regional forester wants us to help the forests with. Q Okay. And in April of what was your title? A Deputy forest supervisor. Q Okay. And what does that mean, "deputy forest “supervisor"? A That's the -- like the assistant to the forest supervisor. Q Okay. Let's go back to April of 2011. Who was the forest supervisor? A The acting forest supervisor at that time was Thomas Contreras.” AND THEN: “Q Okay. You've seen that Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 214 of 325 Page ID #:2521 215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that incident was referred to or described as a motorcycle versus motorcycle fatality? A Yes. Q Did anybody report to you that there was a fatality that day on Big Tujunga Canyon Road? A No.” AND “Q BY MS. KAMAL GRIFFIN: Okay. At that time, you were the deputy forest supervisor. Is that kind of incident -- would that kind of incident involving a fatality -- is it the kind that would be reported to the forest supervisor? A Yes. Q And do you and the forest supervisor discuss major incidents such as Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 215 of 325 Page ID #:2522 216 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ones involving fatalities? A Not necessarily. Q Okay. Do you know what the procedure would be when an accident involves a fatality, in terms of reporting? A Yes. Q And what is that procedure? A It's to notify the forest supervisor. Q Do you know whether the forest supervisor at that time was notified? A No.” B. The documents produced by Defendant in discovery in these proceedings do not show or include any document showing that Officer Gonzales or anyone employed by USFS notified the Angeles B. DKG Decla para.65. App.203. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 216 of 325 Page ID #:2523 217 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 National Forest Supervisor or the Washington USFS Headquarter that Officer Gonzales reported that the subject collision involved a fatality. P148 ANF first responders duties are, in instances where ANF employees must render emergency care, the responsible local government will be notified; upon arrival at the scene, the responsible agency will assume patient treatment and care. Exh.DKG 31 (USA Responses to Interrogatories 2 No. 24). App.981. Undisputed P149 USA first responders will provide emergency care and wait for the local government forces to come to the location, and upon arrival to take over medical care and to transport the victims of the accident to a hospital. Exh.DKG 28 (Garcia Depo. 24:6-25, 28:5-15) App 954, 958 Exh.DKG.15 (Gonzales Depo.30:19-23) App. 447. Undisputed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 217 of 325 Page ID #:2524 218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P150 USA has no procedures in place to rescue these victims if the local governments are unable or unavailable to rescue these victims. Exh.DKG 28 (Garcia Depo. 24:1-17, 25:6-25, 26:1-12, 27:11-14 App. 954, 955, 956,957 Undisputed that USFS provides care until local first responders arrive. P151 If the responsible local government forces are not available to transport victims of accidents in case of a disaster, a presidential declaration under FEMA umbrella would be required for the Forestry Personnel to take over the responsibilities of the local government as regards the rescue of citizens in distress. Exh.DKG 28 (Garcia Depo. 28:16-24). App.958. Undisputed that if a war, riot or something happens preventing local authorities from rescuing citizens, a presidential declaration through FEMA would be required although USFS would provide care until local Exh.DKG 31 (Garcia Depo. 24:1-17, 25:6- 25, 26:1-12, 27:11-14 App. 633-636. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 218 of 325 Page ID #:2525 219 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 authorities arrive. THE CONDITION OF THE LOCATION OF THE COLLISION P152 In an Engineering and Traffic Survey (“ETS”), the City of Los Angeles finds that BTCR has characteristics that are not readily apparent to road users, such as tight horizontal and vertical alignments and narrow roadway widths. Exh.DKG 7 (LA ETS). App. 314- 315 Undisputed that the document speaks for itself. P153 The ETS finds that there is a pattern of cars running off the road as the predominant cause of accidents. Id. Undisputed that the document speaks for itself. P154 The City of Los Angeles imposes a 45 MPH speed limitation on its segment of BTCR. Id.; Kamal Declaration para. 10; Exh. KK 8 App 868 (Photos of 45 MPH sign). App.1458, 1459. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 219 of 325 Page ID #:2526 220 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P155 P156 The maximum allowable speed for BTCR is an unposted 55 MPH in the COLA segment of BTCR. Exh.DKG 32 (Arnel Dulay Deposition 17:6- 13 Transcript, state court proceedings (“Dulay Depo”). App. 990 Undisputed P157 A. The California Manual on Uniform Control Devices applicable in April of 2011 (“CA MUTCD 2010”) is published by the State of California, Department of Transportation, and is issued to adopt uniform standards and specifications for all traffic control devices in California in Accordance with California Vehicle Code Section 21400. B. Plaintiff’s Expert witness James Jeffery, A. Exh.DKG 36 App. 869. Exh. DKG 52 (Jeffery Report para. 26- 30). App. 1271- 1272. B. Id. Undisputed that the document speaks for itself. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 220 of 325 Page ID #:2527 221 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P.E. analysis: 1.The CAMUTCD stands for California Manual on Traffic Control Devices. 2. The CAMUTCD, as all states are required to, must comport with the federal Manual on Uniform Traffic Control Devices (“MUTCD”). The MUTCD defined the standards used by road managers nationwide to install and maintain traffic control devices on all public street, highways, bikeways and private roads open to public travel. The MUTCD is published by the Federal Highway Administration (“FHWAY) under 23 Code of Federal Regulations (CFR) Part 655, Subpart F. 3. The County (and/or any other person or Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 221 of 325 Page ID #:2528 222 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 government having authority) relies on these manuals as authoritative and foundational. C. Per James Jeffery’s report, “From a signing and marking standpoint, the relevant document is the CAMUTCD of January 21, 2010, the most recent prior to the incident.” D. The USFS website publishes its signage guidelines and policy; and this guidelines and policies include the MUTCD. C. Id. D. Exh. DKG 51 App.1193-1195 http://www.fs.usd a.gov/Internet/FSE _DOCUMENTS/s telprd3810021.pdf P158 Per CA MUTCD 2010 Section 1A-02 “Uniformity of the meaning of traffic control devices is vital to their Exh. DKG 52 (Jeffery report) App. 1273; Exh. DKG 33 App. 1054-1060 Undisputed that the document speaks for itself. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 222 of 325 Page ID #:2529 223 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 effectiveness”. P159 Per CAMUTCD 2010 Section 1A-04, traffic control devices should be placed and operated in a uniform and consistent manner. Id. Undisputed that the document speaks for itself. P160 Per CAMUTCD 2010 Section 1A-06 “any given device for the control of traffic shall have the same meaning and require the same action on the part of motorists regardless of where it is encountered”; and per section 1A-06 “uniformity of devices simplifies the task of the road user because it aids in recognition and understanding, thereby reducing perception/reaction time. Uniformity assists road users, law enforcement officers and traffic courts by giving everyone the Id Undisputed that the document speaks for itself. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 223 of 325 Page ID #:2530 224 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 same interpretation”. Id. P161 Per CA MUTCD Section 2 C-01 “Warning signs call attention to unexpected conditions on or adjacent to a highway or street and to situations that might not be readily apparent to road users. Warning signs alert road users to conditions that might call for reduction of speed or an action in the interest of safety and efficient traffic operations.” App. Id. Undisputed that the document speaks for itself. P162 A. Arnel Dulay testified as follows in Morales v. City of Los Angeles, EC 058265: “Q. How long have you been employed by the Los Angeles County Department of Public Works? A. Exh.DKG 32 (Dulay Depo. 9:2- 25; 10:1-13; 11: 1- 21;17; 17:6-13; 29: 11-24; 33:4-9; 40:3-25; 41:1-20; 45:19_25; 46- 49:1-7). App. 987, 989, 990, 994, 997, Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 224 of 325 Page ID #:2531 225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Since July 1989. Q. What is your current position there? A. Senior civil engineer. Q. How long have you been a senior civil engineer with the L.A County Department of Public Works? A. Since July of 2011. Q. What was your title prior to July 2011? A. Civil engineer. Q. How long were you a civil engineer for the Department? Q. A. Approximately, ten years. Q. Just generally, what are the duties of a senior civil engineer with the L.A County Department of Public Works? A. Are you talking about the position itself or my 1001, 1002, 1003, 1005- 1009 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 225 of 325 Page ID #:2532 226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 position? Q. Your position. A. My capacity? Q. Yes. A. I perform the function of a section head for traffic investigation section. Q. And, generally, what does the traffic investigation section do? A. It's a section that handles traffic control requests generated from the public or the supervisors, other agencies, and internally. Q. So any -- it sounds like that would be -- any and all traffic control requests would be handled by your section? You said the public and agencies. What else is there? Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 226 of 325 Page ID #:2533 227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MR. WILLIAMS: Objection. Overbroad. Vague and ambiguous. You can answer. THE WITNESS: That is the bulk of it, yes.” AND “Q. ….Now, the reason I noticed your deposition today was because of the declaration that you have previously referenced, which is a declaration in support of the County of Los Angeles and County of Los Angeles Department of Public Works Motion for Summary Judgment.. I take it that is your signature at the end of the declaration? A. Yes. Q. And did you, personally, prepare this Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 227 of 325 Page ID #:2534 228 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 declaration or did somebody prepare it for you and then you signed it? A. I -- do you mean the actual document? Q. The body of it, yes. A. It was typed up by somebody else, but the content I was involved in, so, yes. Q. I understand. So you have reviewed the entirety of the declaration? A. Yes. Q. And it is all true to the best of your knowledge; is that correct? A. Yes.” AND “Q. Then Paragraph 8, the last sentence, "Additionally, BTCR has an unposted statutory maximum speed limit of 55 miles Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 228 of 325 Page ID #:2535 229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 per hour pursuant to Section of the California Vehicle Code." Does that mean that 55 miles an hour is the maximum because there are no posted speed limits on Big Tujunga Canyon Road in excess of 55 miles per hour? A. Correct.” AND: “Q. What is the difference as far as appearance between a 30 mile per hour advisory sign and a 30 mile per hour speed limit sign? A. The 30 miles per hour advisory sign is a yellow sign. It is a warning sign. A speed limit sign is called a regulatory sign. It Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 229 of 325 Page ID #:2536 230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is black and white.”. AND “Q. When you previously testified that you actually physically went to this area where the incident occurred and observed the conditions for one of a better term, when did you do that? A. January this year. Q. Have you ever visited that general area before, professionally? MR. WILLIAMS: Objection. Asked and answered. THE WITNESS: Yes. MR. JAYNES: Q. And how many times as part of your job did you visit that area? MR. WILLIAMS: Same Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 230 of 325 Page ID #:2537 231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objection. THE WITNESS: At least, ten times.” AND “Q. Do you know if any advisory speed has been calculated for the curve where this subject accident occurred? A. Yes. Q. What do you know about that? A. We conducted a ball bank study for this subject curve. Q. And when was that conducted? A. (No audible response.) Q. Let me help you out on that. It seems to me from your declaration that it was exactly two Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 231 of 325 Page ID #:2538 232 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 years to the day from this accident that that ball bank study was performed. Is that just a coincidence, that April 17th, two years later, the study was performed? Is there some reason why it was exactly two years later? A. No. Q. That is just an incredible coincidence? A. Yes Q. Why was this ball bank study performed at that time? A. The Department has a practice to conduct traffic studies at locations where there's been severe or fatal collisions reported. Q. Do you know whether it was this particular collision, which is the subject of this lawsuit and the subject of your Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 232 of 325 Page ID #:2539 233 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 declaration, which prompted that ball bank study two years later? A. Yes. Q. Why two years afterwards? A. The practice of conducting fatal and severe reviews has only been implemented two years ago. Q. So there was no such standard provision prior to two years ago? A. No. Q. And do you know what public entity determined that these studies should be performed when there's been a serious or a fatal accident? MR. WILLIAMS: Objection. Calls for speculation. THE WITNESS: Which entity? Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 233 of 325 Page ID #:2540 234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MR. JAYNES: Q. Yes. A. Public Works” AND: “Q. Who performed the ball bank study of the subject curve which was performed on April 17, 2013? A. It shows on here. It is Neil and Observer, David. Q. That is all we have, the first names? A. Neil, I am going to try to pronounce -- it's a long -- "Pangalewalhan" -- I might have butchered it, but Q. How is the ball bank study performed? A. The ball bank study is performed by somebody driving the car and using a ball bank indicator that Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 234 of 325 Page ID #:2541 235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is on the dashboard or in the car somewhere. And they drive the curve at different speeds. And depending on those different speeds, they get a reading from the ball bank indicator. And based on that, they plot it in this chart. And this chart, basically, dictates the comfortable speed that should be driven at. Q. So the comfortable speed sounds to me like it is a subjective determination by the person who is driving the vehicle? A. No. This chart has been prepared by. AASHTO. They're the ones that created this, taking into account road friction and all the engineering components Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 235 of 325 Page ID #:2542 236 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that go into driving a curve, to determine what a motorist should be driving this curve at without losing control of the car. Q. So while the person who is performing the ball bank study is driving the curve, pursuant to this study, there is some court of computer inside his car which tells him what the comfortable speed is? A. It is not a computer. It is the ball bank indicator that shows the degrees of how -- when they're turning, it has got a degree meter that tells them what degree they're driving it at. And that result is then plotted on this chart. So for example -- Q. Go ahead. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 236 of 325 Page ID #:2543 237 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. -- when they drove it at 25 -- Q. All right. A. -- the ball bank indicator showed 7.6- degrees.When they drove it at 30, the ball bank indicator showed it at 12.1 degrees. And then at 35, 16 degrees. Q. What, degrees of what? What do the degrees mean? A. The degrees is just what the ball bank indicator showed it at 12.1 degrees. And then at 35, 16 degrees. Q. But degrees must mean degrees of something. Do you know what that something is? A. Again, it is -- AASHTO is the one that determines that these degrees are what's comfortable in this range here. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 237 of 325 Page ID #:2544 238 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Now, that doesn't answer my question. I don't know, maybe it is unanswerable. What does 7.6 on a 25-mile per hour line -- A. So basically, 7.6 at 25 is below the line, okay. That's the upper limit, not the trucks one. Because the first line is for trucks. Q. Okay. I see. A. So for trucks 7. -- the 25 would be appropriate for trucks. You don't want to be below that. Trucks have a higher center of gravity. So they have to take a curve slower than a car. Q. Okay. Now -- A. So the car, would then -- based on this chart, the comfortable speed for a car would be driving it at which shows the 12.1 degrees, which is below Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 238 of 325 Page ID #:2545 239 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that top line and above the truck. Q. So the bold line above the truck is for cars? A. Yes. Q. All kind of cars? A. Yes. Q. From an SUV to a Fiat? A. Yes. Q. Okay. What about motorcycles, where do they fall on this chart? A. They would also use that range. Q. Okay. So all vehicles, other than trucks, are on the higher bold line on this chart? A. Yes. B. Driving the subject turn at a speed greater than 30 MPH is too fast ( A. Yes. That is why we didn't recommend to drive that curve at 35, B. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 239 of 325 Page ID #:2546 240 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because it would be too fast. Q. So 30 is kind of like goldilocks. So 30 is just right -- A. Correct.” C. Per James Jeffery’s declaration fully incorporating his report of May 1, 2016 by reference as though fully set forth in the declaration, P.E., report: “A ball bank study is generally defined as driving an instrumented vehicle through a curve or a turn and when it is determines that a “comfortable” (for an average driver) speed is reached, that speed is the “reasonable speed for that curve or turn. As the Ball Bank study conducted by the County C. DKG. Exh. 51, (James Jeffery report) para. 33, App. 837 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 240 of 325 Page ID #:2547 241 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 indicates the subject turn can be taken comfortably at no more than 30 MPH which is the speed the turn “should be taken at. Additionally, the video produced by the County clearly shows that the straightaway preceding the subject turn in the westerly direction can be driven at a speed of over 50MPH, the speed limit being 55 MPH. There is thus a speed differential of 25 MPH between the applicable 55 MPH unposted speed limit and the subject turn that cannot be safely negotiated at a speed greater than 30 MPH”. D. In layman’s terms a ball bank study indicates the “Comfortableness of a normal driver going D. Exh. DKG Decla. 52 (Jeffery Deposition p. 60:3-6). App.1226 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 241 of 325 Page ID #:2548 242 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 around a curve at different speeds, at a comfortable speed.” P163 The California Manual on Uniform Control Devices applicable in April of 2011 (“CA MUTCD 2010”) defines a “curve” that can be comfortably negotiated at 30 MPH maximum as a turn. Exh.DKG 33 (MUTCD) App.1059, 1060; Exh.DKG 52 (Jeffery report para. 31, 32, 33). App.1274-1277. Undisputed that the document speaks for itself. P164 The “curve” where the subject collision occurred is a turn. Exh.DKG 32 (Dulay Depo. 49:1-9) App.1009 (Jeffery Report at para. 33). App.1276. Undisputed as to what the document states. P165 A turn is sharper than a curve. Exh. DKG Decla. 52 Jeffery Deposition), p.87:13-18. App. 1247. Undisputed as to what the document states. P166 The speed differential between the maximum P162, P165. Disputed. Unsupported Defendant’s Ex. 10; Report Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 242 of 325 Page ID #:2549 243 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allowable speed on BTCR (unposted 55 MPH) and the recommended speed at the subject turn (30 MPH) is 25 MPH. by admissible evidence. by Eric Deyerl. App. 971. P167 A California Court of Appeal has found that without any warnings prior to curve, even a cautious driver might well commit himself to the curve at a speed 10 miles per hour in excess of the maximum safe speed, posing the grave danger of either losing control of his automobile or of leaving the roadway; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 91, 135 Cal.Rptr. 127. Undisputed as to what the document states. Objection. This is not a “fact” in this case. P168 A. Per Plaintiff’s Expert witness James Jeffery, P.E. description of BTCR is stated in paras. Of his report: “14. The “Subject Site” or “Subject Location” is A. Exh.DKG 52 App.1267-1269. Undisputed as to what the document states. Disputed as to opinion. Objection. Rule 401. Lacks foundation and misstates the evidence. This is not a “fact” in this case. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 243 of 325 Page ID #:2550 244 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the specific location on the BTCR where the subject collision occurred. AND B. “15. BTCR runs from west to east (at times from south to north) from Oro Vista Boulevard toward Angeles Forest Highway. Exhibit “T”. 16. The subject site is located BTCR, extending form the floor of the valley to its intersection with Angeles Forest Highway where it ends. BTCR (while in the “County” is approximately 9 miles long with milepost stationing running “Uphill” from lower elevation to higher elevations. This segment B. Id. Defendant’s Ex. 10; Report by Eric Deyerl. App. 971. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 244 of 325 Page ID #:2551 245 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is entirely within the Angeles National Forest. Within this segment of BTCR there is a segment known as Vogel-Flats Clear Creek Truck Trail. This segment is3.11 miles long and extends from the intersection with Vogel Flats Road in an easterly direction toward Angeles Forest Highway. Exhibit “T”. AND C. “17. BTCR is an undivided two-lane curvilinear mountainous highway with travel lanes varying in width from 10 and one half feet to 12 foot, and according to the Count’s road code inventory varies from 24 to 30 feet. The majority of striping consists of double-yellow center C. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 245 of 325 Page ID #:2552 246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stripe, indicating no passing was allowed. No acceleration or decelaration lane existed in the vicinity of the subject site.” AND: D. “18. The first segment of the road is located within the City of Los Angeles Boundary. The boundary with the County of Los Angeles is located on BTCR east of the intersection with Mount Gleason Avenue. BTCR is a conventional, two-lane highway.” AND: E. “As stated by City of Los Angeles Department of Public Works Engineering and Traffic D. Id. E. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 246 of 325 Page ID #:2553 247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Survey (“ETS”) of 2001 (and re-reviewed in 2008) relating to BTCR: “Big Tujunga Canyon Road is a rural highway that is only 25 feet-wide east of Mount Gleason where it begins to wind and climb up to Angeles National Forest. “ AND: F. “20. The City of Los Angeles has imposed a restriction of 45 MPH on its segment of BTCR. The speed restriction sign is posted at the intersection of Mount Gleason Avenue and BTCR on the eastbound lane. The characteristics of BTCR on the County segment east of Mount Gleason Avenue turn into a much more curvilinear F. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 247 of 325 Page ID #:2554 248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mountain road than the segment of BTCR that is outside the “County” boundary: G. BTCR Annual Daily Traffic (hereinafter “AADT”) count is approximately 500 vehicles, moving in both directions according to County in 2009. H. This is considered a low volume road. I. James Jeffery testified as follows: “Q. And you point out that this was a low volume road. What do you mean by that? A. It means it’s the—that the County of Los Angeles determined it to be 500 G. Exh.DKG 51 (Jeffery Report para.18) App.1268. Exh. DKG 52 Jeffery Deposition at 33:15-21 App. 1212. H. Id. App. 121.2 I. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 248 of 325 Page ID #:2555 249 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 average daily traffic both directions and by any standard, guideline, policy, procedure I have ever come across that 500 is a low volume street or highway.” J. James Jeffery testified as follows: Q. And you point out in paragraph 18 that this has now been given a major collection designation. What do you mean by that? A. It’s my understanding that the functional class of that road has been changed over---has been changed from a dead end to a major arterial in--- sometime since the construction. ……. Because now it’s been used as a, if you will as J. Supp. DKG Decla. Exh. 52 33:22-25; 34:1-7. App. 1212, 1213 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 249 of 325 Page ID #:2556 250 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thoroughfare for people from just say Antelope Valley to that part of Los Angeles.” P169 The subject turn is preceded by a long straightaway in Morales direction of travel. Exh.DKG 34 (Google image) App 1061; Exh. DKG 52 (Jeffery Report at para 39). App. 1279. UnDisputed. P170 A. At the approach of the subject turn westbound the turn slopes at a grade that exceeds 8% on average at that location A. Id. P47. Exh. DKG 52 (Jeffery Report para. 40) P47 A, P47B and P47C above; Exh.KK 5, 6, 7 (photos of grade reading taken by Kamal) App. 1281, 1444-1445, 1456-1457; 1209 Undisputed as to what the document states. Objection. Rule 401. Lacks foundation and misstates the evidence. Defendant’s Ex. 10; Report by Eric Deyerl. App. 971. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 250 of 325 Page ID #:2557 251 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. James Jeffery states in his report:”38. Heading West (Mr. Morales direction) before the subject turn there are a succession of curves and turns some of which are TURN or CURVE signed. 39. These warning signs were followed by an approximate 2000 foot long straight away ending in a downhill grade that immediately precedes the subject collision. Exhibit “T.” A motorist is likely to pick up speed on the straightaway, the be faced with a 30 MPH right hand blind curve with no ability to see around the corner in time to take action such as in Morales’ lane.” C. James Jeffery testified as follows: “Q. Okay. Paragraph 19, B. Exh.DKG 51 (James Jeffery Report at para. 39); App._1279. C.Exh. DKG 52 (Jeffery Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 251 of 325 Page ID #:2558 252 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 you point out that motorists tend to feel comfortable driving at speeds higher than the posted speed limit on this particular stretch of roadway; is that right? A. Yes. Q. And you point out this is a false sense of comfort. My question for you is: Since motorists and motorcyclists have this false sense of comfort, why would that change if there was the signage that you recommend? A. Well, good question. It would -- so the bigger picture is that without getting into details, is coming down the direction that Mr. Morales was traveling in, which I was primarily focused on, there are a Deposition 35:11- 25; 36:1-8) App.1214-1215. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 252 of 325 Page ID #:2559 253 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lot of conflicting signs, one which might lead an individual to have a false sense of -- not -- not a false sense of comfort. But would have them think that -- and additionally have them think that only the curves that were, quote, unquote, dangerous would be signed, the 30 or 35 curve or -- not curve -- sign, turn or curve. So that's the false sense of, if you will, comfort as well as in this particular case, it was after a long straightaway.” P171 A. California Highway Patrol Sargent Lynch took photographs of the collision site on day of the subject collision. A. Exh. DKG 35 (Traffic Collision Report of April 17, 2011) (CHP photos A. Undisputed. B.-J. Undisputed as to what the Objection. Lacks foundation and misstates the evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 253 of 325 Page ID #:2560 254 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The view around the subject turn was obstructed by a mountain wall in the eastbound direction. attached to Traffic collision report attached to subpoena). App.1083-1089. B. Id. App. 1089 KK Exh.15B App. 1469 Jeffery Declaration at para. 16 App.1374, 1375 Exh.DKG 52 (James Jeffery Report at para. 39); App.1279. Exh.DKG 54 (Robert Snook report which is fully incorporated by reference as though fully set documents state; Disputed as to the conclusions drawn. Defendant’s Ex. 10; Report by Eric Deyerl. App. 971. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 254 of 325 Page ID #:2561 255 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The view around the subject turn was obstructed by a mountain wall in the westbound direction. D. Eric Deyerl, expert in accident reconstruction for USFS, testified as follows regarding his onsite test runs at the subject curve: “A….In my case, I had a spotter in the curve and he could advise me whether there was anybody in my forth in Robert Snook’s Declaration) App.1320, 1365. C. Exh. DKG 35 (CHP photos attached to Traffic collision report). App.1084. James Jeffery Declaration App. 1374. Exh.DKG 54 App.1320, 1365. D. Exh.DKG 56 (Deyerl Deposition, 23:19- 22; 50:1-21). App.1475, 1480 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 255 of 325 Page ID #:2562 256 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lane. …. Q. So, you had a spotter also? You had a spotter on the curve as you were doing your tests, correct? A. Absolutely. Absolutely.” AND “Q. Before you did the test-before you road(sic) your motorcycle to test, did you look at the area first? At the road? A. Sure.” P172 A. The roadway on that segment of BTCR is 28 feet wide. B. James Jeffery, P.E, stated : A. Exh. DKG Decla. Exh. 18 (Exhibit of Cline Deposition which is the Road Code inventory) App.644. B. Exh. DKG 52 (Jeffery report A. Undisputed. B.-J. Undisputed as to what the documents state; Disputed as to the Objection. Lacks foundation and misstates the evidence. Defendant’s Ex. 10; Report by Eric Deyerl. App. 971. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 256 of 325 Page ID #:2563 257 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “24. The lack of posting a 55 MPH sign is indicative of the random nature of other types of postings (or non-postings) as well, including incorrect and inconsistent signage. Such signage and striping proceeded (sic) Mr. Morales in his westbound direction, and when he reached the subject turn there was no signage present . C. James Jeffery, P.E. testified at his deposition on June 23, 2016: “Q. And in paragraph 24 you talk about signage and striping that preceded -- that's I think misspelled --proceeded. But is it preceded Mr. Morales in his westbound direction? A. What page or which para, 24). App._ App. 1270-1271. C. Supp DKG Decla. Exh. 52 Deposition p. 45:6-12 and 24-25; 46:13-25). App.1216-1217 conclusions drawn. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 257 of 325 Page ID #:2564 258 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 paragraph? Q. Page 12, paragraph 24. A. Oh, yeah. Preceded. Thank you. ………… Q. Well, you didn't do your on-site inspection on the day of the accident or before, correct? A. No. But again -- Q. So my question -- A. Okay. Q. My question is: How did you determine what signage existed on the date of the accident? And your answer is by the County inventory. Is that right? A. County inventory, Google drive-by, photographs that were subsequent that matched the County inventory and some that didn't match the County Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 258 of 325 Page ID #:2565 259 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inventory. I try to look at as many different possible police photographs. But that didn't show anything. CHP photographs. I put everything together. And since nobody drove it on the day of the accident, I put all the information together and come up with the best -- the best answer that anybody can, given the circumstances.” D. James Jeffery stated: “41. The roadway plan attached as Exhibit “EE” Work Order 9226 (Cline Deposition F-1#10474 indicates that the road grade was designed at 7%. “ D. (Jeffery report para, 41). App. 1281. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 259 of 325 Page ID #:2566 260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. James Jeffery stated: “42. There is no warning sign of the beginning of the steep downhill grade just before (or at) the subject turn in the westbound lane. The design grade was supposed to be built at 7% percent (however as discussed above was not) following the subject turn for a distance of approximately 5000 feet (nearly a mile). This is more than a mile to the intersection with Vogel Flats”. PER CAMUTCD Section 2C.12 Hill Signs, a sign warning of the downhill grade should have been posted prior to the subject turn as follows: “The Hill (W7-1) sign (see Figure 2C-2 below) should be used in advance E. (Jeffery report para, 42). App. 1282 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 260 of 325 Page ID #:2567 261 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of a downgrade where the length, percent of grade, horizontal curvature, and or other physical features require special precautions on the part of roads users. The Hill sign an supplemental grade (W7-3 plaque use din combination, or the W71b sign used alone, should be installed in advance of downgrades for the following conditions: A. 5% grade that is more than 900 m (3000 feet) in length; B. 6% grade that is more than 600 m (2000 feet) in length; C. 7% grade that is more than 300 m (100 feet) in length; D. 8% grade that is more than 230 m (750 feet) in length; E. 9% grade that is more than 150 m (500 feet )in length. These signs should also be installed Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 261 of 325 Page ID #:2568 262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for steeper grades or where the crash experience and field observation indicate a need.” AND F. “It is to be noted that the straightaway preceding the subject turn is not on this downhill grade. That’s because there is a slight raise then down before the subject turn.” AND G. The subject turn where the collision occurred was not marked or warned of ahead of the turn by a warning sign or an advisory speed plaque, a curve or turn symbol or other warning sign in the F. Id. G. Id at App. 1282 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 262 of 325 Page ID #:2569 263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 westbound direction including a Hill sign to indicate a slope in the westbound direction.” H. James Jeffery declared that: “The subject TURN is blind due to the visual obstruction caused by the mountain wall on the side of the westbound lane, combined with the sharpness of the TURN. Based on all the documents that I have reviewed and that are listed in my report, I am certain that the characteristics of the road as they were on the day of the subject collision and H. James Jeffery’s declaration, para.16, App.1374. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 263 of 325 Page ID #:2570 264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as they were on the day of my onsite inspection are the same. The roadway width is the same. The grade is the same. The sharpness of the TURN is the same. There were no signs on either side of the TURN warning of the turn ahead, or of the slope; and there were no speed advisory plaques on the day of the subject collision and on the day of my onsite inspection. I have testified at my deposition as to my basis for determining that these signs did not exists on the day of the collision”. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 264 of 325 Page ID #:2571 265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. James Jeffery testified that he observed a bump at or about the entry of the subject turn on Mr. Morales’ lane as follows: “Q. You mentioned a bump. This bump that you observed was during your site inspection in 2016, correct? A. Yes. Q. Do you know if that bump existed on the day of the accident? A. I would be really, really, really sure of that because of the condition of the road not looking like there had been anything changed to it except an overlay in a long, long, long time. I would have to say that that bump was unquestionably there. Q. Okay. Can you be I. Exh. DKG 52 (Jeffery Deposition at 63:17-21; 90:4-25; App. 1229, 1250 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 265 of 325 Page ID #:2572 266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 more specific, why you can say that? A. Because I observed through photographic, through physical, my own traveling to the site that the roadway hadn't changed any in many, many, many years, because it could be observed that the condition of the pavement was let's say original a long time ago, and the condition of that pavement was not good and that wouldn't have happened if they had repaved it in the last -- since the accident. There is no evidence that that has changed since the time of the accident. None. Q. Did you do any studies to determine whether that bump was there previously or are you just Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 266 of 325 Page ID #:2573 267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 talking about by observation? A. By observation and anything else I just stated. Q. And which lane was this bump in, the eastbound or the westbound lane? A. Actually, I believe it was across the whole roadway. I believe. Q. And so how long was this bump in length? A. By length, are you referring to longitudinal down the road or cross the road? Q. Whatever. You tell me. A. Let's just say six feet long and across the road, which is 12 -- 25 feet. But I don't know if it's off to the side, because I didn't travel there. I just noticed it driving. Q. And did this bump Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 267 of 325 Page ID #:2574 268 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 occur before the area of impact between the two bikes or after? A. Before. Q. So it would have been before Mr. Morales hit Mr. Kamal? A. Yes. Q. This bump? A. Yes. Q. Do you have any reason to believe that Mr. Morales actually rode over this bump? A. Let's see. He would have had to go over the bump in order to have been involved in the accident because of the direction he was going. Q. Do you know exactly the route he took just before impact? A. Yes. As perhaps testified before and also in the traffic collision report. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 268 of 325 Page ID #:2575 269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Is that bump mentioned in the traffic collision report? A. No. Wouldn't -- wouldn't likely be given -- wouldn't likely be. I noticed it but did not measure it. They didn't even take pictures of -- well, anyway, enough said about that. Q. How far off -- how far off the surface did this bump -- how much did it raise off the rest of the surface? A. No idea, because -- because I didn't take any measurements. Q. And do you know if in fact this bump contributed to the accident in any fashion? A. I can certainly understand how it would not affect a car and could affect a motor bike. But Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 269 of 325 Page ID #:2576 270 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that's again up to the reconstructionist. And I am hoping that Eric has taken into consideration and noted that.” J. James Jeffery testified at his deposition: “Q. Okay. So let's focus on the configuration. We have a long straightaway which ends in the turn. A turn is sharper than a curve, correct? A. Yes. Q. The view coming from Mr. Morales' direction was obstructed by a mountain wall, correct? A. Yes. Q. And the grade is eight percent and over at that location, correct? A. Yes. Q. Okay. Would the combination -- is it your opinion that the J. Exh. DKG 52 (Jeffery Deposition 87:15- 25; 88:1-21;89:4- 12) App._1247- 1249__ Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 270 of 325 Page ID #:2577 271 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 combination of these factors poses a risk of collision such as the one that involved Mr. Morales and Mr. Kamal? A. It increased, yes. Increased likelihood. Q. Okay. Would you consider this location a dangerous location? A. Yes. As I've testified to and on both of the last questions, I would say especially the last one, because it wasn't warned for. Q. Okay. And the lack of warning, it's your testimony that there should have been a warning before the turn on each side of the turn? MR. STAUB: Objection. . Go ahead. BY MS. KAMAL- Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 271 of 325 Page ID #:2578 272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GRIFFIN: Q. Okay. A. Yes. More important -- not that you asked, but more important on the downhill because of the grade and stopping -- and stopping actions as a result of that Q. Is it your opinion that motorists are more likely to pick up speed on the straightaway? A. Yes. Particularly that one. MR. ……… Q. Okay. Now, going back to the location of the accident, because of the characteristics you described and absent a warning, is it your opinion that these characteristics combined with a lack of warning are likelier than not to Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 272 of 325 Page ID #:2579 273 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cause harm and injury to motorists? A. Absolutely. Q. And in that sense, the location is dangerous, correct? A. Yes.” K. James Jeffery testified as follows: “Q. When you drove this during your inspection, any reasonable motorcyclist could see there was a curve coming up even though there wasn't a sign there, right? A. No. It's a blind curve. It's a blind curve. Q. Well, I understand you can't see the other side of the curve, but can't you determine that there is a curve there? A. Well, there is dirt in front of you or a hillside on both sides. K. Exh. DKG 52 (Jeffery Deposition 52:1- 13); App.1223 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 273 of 325 Page ID #:2580 274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Could someone? I suppose someone could and someone couldn't. I can't -- I can't say beyond that.” L. James Jeffery testified as follows: “ Q. Let me ask you this. Since you're not able to see the other side around the curve as you approached the curve, wouldn't a reasonably prudent motorcyclist slow down even though there was not a sign there telling you there is a curve? A. No. And in part because of the expectations that he or she had experienced prior to that with the misinformation L. Exh. DKG 52 Jeffery Deposition 52:18-25; 53:1-3) . App. 1223-1224. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 274 of 325 Page ID #:2581 275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or non-information for the motoring public, and it is, as I mentioned before, after a long straight away, and I'm going to say the longest straight away on that stretch. So, no.” P173 CHP Officer Sherman, who investigated the collision, testified as follows at his deposition in Morales v. City of Los Angeles/Kamal v. County of Los Angeles EC 058265: “Q Okay. But you don't recall seeing one, okay. Now, let's focus on the area where the collision happened, and I want to ask you to take a Exh. DKG. 22 (Sherman Deposition at 69:20-25; 70:1- 19). App.665-666. Undisputed as to what the documents state. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 275 of 325 Page ID #:2582 276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 second look at Exhibit 2. In the direction coming down the mountain in the westerly direction that Party-1 was driving, before that curve, did you observe any traffic signs? A I don't recall if there is any there. Q Within a mile from the curve and traveling in the westerly direction did you observe any sign -- MR. WILLIAMS: Objection -- BY MS. GRIFFIN: Q -- traffic or regulatory sign? THE WITNESS: I don't recall. MR. WILLIAMS: Objection, overbroad, calls for speculation. BY MS. GRIFFIN: Q Okay. Now, in the easterly direction, the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 276 of 325 Page ID #:2583 277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opposite direction, did you observe any traffic or regulatory sign within half a mile from the curve? MR. WILLIAMS: Objection, overbroad, calls for speculation, vague. THE WITNESS: I don't recall any signs.” P174 There was no warning sign such as a sign recommending a speed of 30 MPH maximum, a sign warning of the turn and a sign warning of the slope ahead of the subject turn in the westbound direction of travel (Mr. Morales’ direction of travel). Exh. DKG 52 Jeffery Deposition 45:6-12; 24-25; 46:13-25). App.1216, 1217. Exh.DKG 51 (Jeffery Report para. 24; ) App.1270; Exh.DKG 38 (CHP photos); App.1084; Jeffery Declaration para. 16. App.1374 Disputed. Unsupported by admissible evidence. Objection. Rule 401. Lacks foundation and misstates the evidence. Defendant’s Ex. 10; Report by Eric Deyerl. App. 971. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 277 of 325 Page ID #:2584 278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P175 P176 The plaintiff’s lane was on the canyon side. Exh.DKG 35 (CHP Photo) App.1085 Undisputed P177 A. Plaintiff testified about the moment he first saw Mr. Morales at his deposition of January 21, 2016 as follows: “A. When I saw him coming out of his lane crossing the double yellow lane---line in the center I thought about going inside because I though he would just go straight. So I wanted to avoid him by going inside. In this split, split second I thought if someone is coming behind him I will go head on, and in the split second, I went back outside the turn to try to avoid him.” A. Exh.DKG 22 (Kamal Depo. 81:12-19, App. 712. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 278 of 325 Page ID #:2585 279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P178 Morales was taking a straight line at Plaintiff. Id. App 712 Undisputed COLLISIONS STATISTICS FOR ANGELES NATIONAL FOREST ROADS AND BTCR P179 A. The number of collisions on the roads in the Angeles National Forest part situated between Los Angeles and Antelope Valley has been reported in the media a few times since at least March 15, 1992. B. The press articles from pages 1097 to 1104 of the Joint Appendix are true copies of press articles that were printed out of the reporting newspapers websites. C. The press articles on A. Exh.DKG 36, 37 (press articles). App.1097, 1117. B. Exh.DKG 36. App. 1097-1104. DKG Decla. para. 37. Disputed. Unsupported by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 279 of 325 Page ID #:2586 280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pages 1090-1096 of the Joint Appendix are pasted copies of newspapers articles that can be accessed and read by copying and pasting the website address stated for each article into the Google search box. C. Exh. DKG 37 App. 1090-1096. DKG Decla. para. 38 P180 Since 2003, Gonzales has seen many people die and severely injured on ANF road. Exh.DKG15 (Gonzales Depo.) p. 35:11-17; 40:12-25; 41:1-3. App.453, 463-464. Undisputed that Gonzales has seen people die on different roads. P181 A. The Welcome Page of to the California Highway Patrol Web site at: http://iswitrs.chp.ca.gov/ Reports/jsp/userLogin.jsp states “State Wide Integrated Traffic Records System (i) is a database that serves as a means to collect and A. http://i.chp.ca.gov/ Reports/jsp/Sampl eReports.jsp Exh.DKG 26 (SWITRS introduction) App. 783 A.-D. Undisputed as to what the document states. E.-G. Disputed. Unsupported by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 280 of 325 Page ID #:2587 281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 process data gathered from a collision scene. The Internet SWITRS application is a tool by which California Highway Patrol (CHP) staff and members of its Allied Agencies throughout California can request various types of statistical reports in an electronic format. “ B. On October 7, 2014, the custodian of record of California Highway Patrol SWITRS produced documents in response to Deposition Subpena for the Production of Records received on October 7, 2014 in Case No. EC 058265 Samuel Morales v. City of Los Angeles, including SWITRS and a document titled: “DESCRIPTION OF B. Exh. DKG 27E App.923,927-936 H. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 281 of 325 Page ID #:2588 282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SWITRS COLLISION LISTING”; C. The “ DESCRIPTION OF SWITRS COLLISION LISTING” provides information on how to read the SWITRS. D. The SWITRS are also accessible online by placing an order on the California Highway Patrol website by following this procedure: 1. First access the CHP welcome page at http://iswitrs.chp.ca.gov/ Reports/jsp/userLogin.jsp 2. Create an account for Login, providing email address and password. 3. Log in with the information entered for the account. 4. Chose the jurisdiction for which SWITRS are C. Id. D. DKG Decla. para.27; App.190- 192. Exh. DKG 27 F App. 939 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 282 of 325 Page ID #:2589 283 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requested from the scroll down menu next to JURISDICTION; 5. Fill boxes Reports Period Start and Reports Period End 6. Chose Report Type from the scroll down menu. 7. Click on GENERATE REPORTS. 8. The reports are usually generated within hours and delivered to the email address provided for the creation of the account and log in. 9. On the left side of the page, there is a column stating: “ • SWITRS Reports • OTS Reports • Raw Data • Request History • User Profile Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 283 of 325 Page ID #:2590 284 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • Help • Report Samples • Logout 10. Clicking on the link “Report Samples” leads to a page that lists the different Reports format. 11. The sample of “Total Collisions” Reports that is shown on the website is attached as Exhibit 27 F of DKG Decla. App. 939 E. The research, as conducted pursuant to the methodology outlines in D and G indicates that BTCR is within ALTADENA jurisdiction. F. The SWITRS for the Altadena jurisdiction includes CHP collision data relating to Big Tujunga Canyon Road. G. The State Wide E. DKG Decla. para.27; App.190- 192. F. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 284 of 325 Page ID #:2591 285 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Integrated Traffic Records System (SWITRS) that were (1) retrieved for the Altadena jurisdiction by following the instructions stated above; and (2) ran on August 1 and 7, 2006 for the time period from 01/01/2006 to 12/31/2011 lists the collisions that occurred on the segment of BTCR that extends from 4700 feet East of Vogel Flats to 7350 East of Vogel Flats; the total collisions at that location for that time period is as follows: 1. 10/17/2006; 5808 East of Vogel Flats; severe; under influence. 2. 10/20/2006, 5500 feet East of Vogel Flats; severe injury. 3. 12/02/2006, 4752 feet East of Vogel Flats; G. DKG Decla. para.27, App. 190 (Collisions on BTCR for that time period are marked on the right side of the documents). Exh. DKG 27C 813, 831-854; Jeffery Declaration at para.7-11. App.1369-1370- 1372. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 285 of 325 Page ID #:2592 286 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury. 4. 03/08/2007, 5280 feet East of Vogel Flats. 5. 09/05/2008, 5280 East of Vogel Flats, severe injury. 6. 08/08/2010, 1137 west of CFM 5.69; injury. 7. 04/04/2010, 5280 east of Vogel Flats, severe injury. 8.02/15/2011, 5280 feet East of Big Tujunga, injury (Our note: probably means east of Vogel Flats). 9. 04/17/2011, 1321 West of CFM 5.69, two severe injuries (our note: plaintiff involved). 10. 04/11/2011, 6864 feet east of Vogel Flats; fatality. H. James Jeffery declares that (1) for the collisions that occurred “ five years H. James Jeffery Declaration at Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 286 of 325 Page ID #:2593 287 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 preceding the collision occurring on 4/17/11, backwards in time five years to 4/18/06 (in which there were no collisions in the first 6 months”; and that (2) are listed as follows: “7. 1. 10/17/2006, 5808 feet east of Vogel Flats; severe injury. 2. 10/20/2006, 5500 feet east of Vogel Flats; severe injury. 3. 12/02/2006, 4752 feet east of Vogel Flats; injury. 4. 03/08/2007, 5280 feet east of Vogel Flats; no injury reported. 5. 09/05/2008, 5280 feet east of Vogel Flats; severe injury. 6. 04/04/2010, 5280 feet east of Vogel Flats, severe injury. para. 7, 12, 13, 14 App.1369, 1370, 1372, 1373. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 287 of 325 Page ID #:2594 288 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. 08/08/2010, 1137 feet west of CFM 5.69; injury. 8. 04/11/2011, 6864 feet east of Vogel Flats; fatality. “, (not counting the subject collision ) “14. My findings are: 17.5 accidents per million vehicles miles traveled; Caltrans Average Collision rate for a similar facility is 1.41 accidents per million vehicle miles, the result in my calculation indicates 12 and one half times the state average. 15. It is my opinion that: this is the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 288 of 325 Page ID #:2595 289 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 largest/highest rate result that I have ever seen in my 40 years of practice. By this Traffic Engineer it would be considered astronomical.” (Our emphasis) P182 A. The collision occurred in the 3.11 mile-long segment of BTCR known as the Vogel Flats-Clear Creek Truck Trail Segment. B. The collision occurred about 1.12 mile east of the Vogel Flats intersection, that is about 5280 feet east of Vogel Flats. A. Exh.DKG 32 (Exh. 2 of Dulay Deposition, COLA DPW traffic collision report (“COLA DPW”). App. 1049 B. Declaration of James Jeffery para.4. App.1367. Undisputed P183 A. Exhibit 1 of Arnel Dulay Deposition, taken on March 31, 2014, has A. Exh. DKG 32 App.1018, 1023- Undisputed as to what the Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 289 of 325 Page ID #:2596 290 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attached to it, as an Exhibit 2, a document titled: Declaration of Arnel Dulay in Support of County of Los Angeles and County of Los Angeles Department of Public Works Motion for Summary Judgment or, in the alternative, Summary Adjudication of issues. That Exhibit 2 of Arnel Dulay’s Deposition transcript has Exhibits attached to it: Exhibit 1 of the Dulay Declaration is a copy of the Traffic Sign Inventory; Exhibit 2 is the Ball Bank study conducted on the subject curve on 04/17/2013. Exhibit 3 is a copy of County of Los Angeles 1024, 1046-1047, 1048-1049 document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 290 of 325 Page ID #:2597 291 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Traffic and Lighting Division Traffic Collision History Report. B. COLA Department of Public Works (“DPW”) traffic collision report shows that there were 19 collisions on the Vogel Flats-Clear Creek Truck Trail segment within the five years preceding the subject collision and up to May 2, 2011. C. Arnel Dulay, County Engineer for the County of Los Angeles testified as follows: A. On this report, Exhibit 3, it is on the third page. It shows a segment lane 3.11 miles. Q. Okay. 3.11 miles. And looking at the total number of collisions as stated on Exhibit 3, we B. App. 1049 C. Exh. DKG 32 (Dulay Deposition 78:10-19) App.1013 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 291 of 325 Page ID #:2598 292 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have -- I mean, the report shows 19 collisions from June first 2005 -- A. 2006. Q. 2006 -- sorry -- to May 31st, 2011, 19 collisions; correct? A. Correct.” P184 P185 P186 A. James Jeffery, P.E. states that for the 3.11 mile segment of BTCR referred to in 183C and 183B above: “The collision rate is 2. 5 times that of Caltrans average for the same type of roadway.” B. James Jeffery, P.E. states in the Summary part of his report: “My evaluation included review of potential defects which come about as a B.1289-1290 Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 292 of 325 Page ID #:2599 293 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 result of public acts of improvement. I have made an independent evaluation of the appropriatedness of the subject roadway appurtenance at the time of the subject incident and of the traffic safety condition at the incident location.” C. James Jeffery, P.E. opines:  “A TURN Warning sign of 30 MPH was required at the subject location as without one there is a far greater chance of collision”. D. James Jeffery further opines:  “The present grade of the subject site does not meet Caltrans C. App. 1290 D. Id. D. Id Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 293 of 325 Page ID #:2600 294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Department of Public Works Division of Highway Design Manual standards”. E. James Jeffery further opines:  “The turn of the road designed as being smooth, but was in fact 4 separate curves. A compound turn contains only two curves.” F. James Jeffery further opines:  “BTCR signage was not consistently applied in the westbound direction prior to the subject site.” G. James Jeffery further opines. E.Id. F. Id. G. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 294 of 325 Page ID #:2601 295 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Signage was not in compliance with CA MUTCD. H. James Jeffery states: “In my opinion, if adequate inspection, routine review and normal communication procedures had been followed by competent personnel and authorities, the defect would not have been present and it is more likely than not that the collision under review (and other similar collisions) would not have occurred. Without such warning signs alerting the traveling public to the presence of the turn events like the collision can be more likely expected than not.” H. App. 1292 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 295 of 325 Page ID #:2602 296 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIGNS P187 A. Karim Kamal declares that he noticed two 45 MPH speed limits signs on BTCT on his way to Angeles National Forest. B. Karim Kamal declares that nothing marks the City’s limit and County’s boundary; and that the road looks the same on the way up past the 45 MPH signs he noticed. C. Karim Kamal declares that he did not know that motorists coming down the mountain could drive at a speed of up to 55 MPH. D. Karim Kamal declares that he adjusted his speed downward to a speed A. Kamal Declaration at para. 10; App.144- 1445. B. Id. C. Id. D. Id. at 13 App.1446 Undisputed as to what the document states. Objection. FRE 401. Lacks foundation and argumentative. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 296 of 325 Page ID #:2603 297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 below the 45 MPH speed limit sign that he observed and that had he driven faster he would have been past the turn before Mr. Morales got there. P188 USA does not have a complete copy of the traffic sign inventory for roads in Angeles National Forest. Exh.DKG 3. (Bergdahl Depo. at: 20:17-25 App. 224. Undisputed that Bergdahl testified USFS had an incomplete inventory of the roads in the Angeles National Forest. P189 Sonia Bergdahl, USFS Angeles National Forest Engineer testified as follows: “Q. Did the County share with you their traffic sign inventory? A. No.” Id.; 21:13-14, 21- 22. App. 225 Undisputed as to what the document states. . P190 . Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 297 of 325 Page ID #:2604 298 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P191 P192 A. Warning signs for which an advisory speed of 30 MPH or less is appropriate are referenced by CAMUTCD as W1-1 plaques. B. Warning signs for which an advisory speed of 35 MPH or more is appropriate are referenced by CAMUTCD as W1-2 plaques. C. Turns are depicted on signs as black arrows bent to the side (Left or Right) at 90 degrees angles on a yellow background. D. Curves are depicted on signs as black arrows gently curved to one side A. Exh. DKG 33 (CA MUCTD). App.1059, 1060; Exh. DKG 52 Jeffery Report at para. 31; App. 1274 B. Id. C. Id. Undisputed as to what the document states. Disputed. Unsupporte d by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 298 of 325 Page ID #:2605 299 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or the other to the side. E. Reverse turn warning signs are referenced by CAMUTCD as W1-3 plaques. F. Reverse curve signs are referenced as W1-4 plaques. G. The advisory speed for reverse turns is 30 MPH or less. H. The advisory speed for reverse curves is 35 MPH or more. I. CAMUTCD does not provide for the pairing of a turn or reverse turn signs with an advisory speed plaque for a speed greater than 30 MPH. J. CAMUTCD does not D. Id. E. App. 899. F. App.1059, 1060. G. Id H. Id I. Id. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 299 of 325 Page ID #:2606 300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provide for the pairing of curve and reverse curve signs with an advisory speed plaque for a speed of 30 MPH or less. K. James Jeffery states: “if a TURN Warning sign is paired with a speed advisory plaque of a speed greater than 30 MPH, such as 35, or 40 MPH, a motorist could ignore the turn symbol and overshoot the turn, driving it as [sic] speed greater than 30 MPH design speed would call for.” AND L. “Any mismatch between the curve symbol and the 30 MPH speed plaque is dangerous because it sends a conflicting/confusing J. App. 1060 Id. K. Exh.DKG 52 (Jeffery Report) Para. 34 App.1278. L. Id Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 300 of 325 Page ID #:2607 301 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 message to road users. The difference in the perception of the pair of signs by motorist is of a nature to create a perilous condition. If a CURVE Warning sign is paired with a speed advisory plaque of 30 MPH, a motorists could drive at a speed of 30 MPH maximum or even lower based on the 30 MPH figure, while the motorist behind could drive at a speed greater than 30 MPH, based on his knowledge that a curve symbol indicates a speed greater than 30 MPH. The second motorist (behind the lead car) could thus close in on the slower vehicle ahead. The faster driver may thus find himself/herself in the situation where he/she Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 301 of 325 Page ID #:2608 302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 may either risk hitting the car ahead or swerve out of their lane with the risk of colliding head on with an oncoming vehicle.” M. In one instance, on BTCR, as indicated in the County traffic sign inventory, a curve symbol is paired with a speed plaque recommending 30 MPH before a winding road sign in the eastbound direction at or about the second turn from the intersection of BTCR with Angeles Forest Highway. N. In September of 2011, Plaintiff photographed a pair of signs, comprised of a curve sign paired with a 30MPG advisory speed plaque, situated a short distance before a winding road sign at or about the M. Exh.DKG 52 (Jeffery Report para. 36. App. 1279; Jeffery Decla. Exhibit 7. App. 1429. N. Kamal Decla. Para 6. App. 1444; KK Exh. 3 App. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 302 of 325 Page ID #:2609 303 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 second turn, going west from the intersection with Angeles Forest Highway. O. Plaintiff photographed the same location later in 2012. P. A comparison of the photographs attached as Exhibits 2 and 3 of Karim Kamal’s declaration shows that the pair of curve symbol sign and 30 MPH advisory speed plaque appearing on Exhibit 2 is no longer at the location; but the winding road sign is still there. Q. In one instance as indicated in the traffic County sign inventory of February 6, 2013, on BTCR, a reverse turn sign is paired with a 35 MPH 1451. O. Id. Para. 7. App.1452. KK Exh. 2. P. Id. at N and O above. Q. Exh. DKG Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 303 of 325 Page ID #:2610 304 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recommended speed plaque. R. Plaintiff photographed two pairs of signs on BTCR, pairing a reverse turn sign with a 35 MPH speed plaque. 52 (Jeffery Report para. 36. App. 1278; Jeffery Decla. (Exh. 7) App. 1420. R. Kamal Declaration para. 8 and Exh.KK 4A and 4 B App. App. 1453, 1454 P193 Arnel Dulay, County Engineer testified as follows at his deposition in the case Morales v. City of Los Angeles/Kamal v. County of Los Angeles, EC 058265 as follows: “MR. JAYNES: Q. “Let's go back to Paragraph 9 of your declaration. It says "Attached hereto, as Exhibit 1, is Exh. DKG Exh. 32 ( Dulay Depo. 22:12-24; 23:1- 20; 24: 20-25). App.991, 992, 993. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 304 of 325 Page ID #:2611 305 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a true and correct copy of the traffic sign inventory for BTCR printed on February 6, 2012," which has been corrected by you, sir, to February 6, 2013, "indicating when and where signs on BTCR were posted." And then we have got a lot of pages attached. What you have attached as Exhibit 1, are these all the traffic control signs presently located on Big Tujunga Canyon Road? A. That's what the inventory has shown. Q. And do you know whether February 6, 2013, was the last inventory taken of the traffic control devices on Big Tujunga Road?” AND: Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 305 of 325 Page ID #:2612 306 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Q. Who takes the traffic sign inventory in regard to Big Tujunga Road? A. No one takes the inventory. It's -- it's -- it's a database of the inventory of the signs. So when somebody wants to look up signs on a particular road, they can generate the report from the inventory. Q. And is that database subject to revision? A. If there is a new sign that is installed on this road, then they install the sign and then add it to the inventory.” AND “Q. Did you utilize Exhibit 1 for any purpose in preparing your declaration? A. Yes. Q. And how did you so Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 306 of 325 Page ID #:2613 307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 utilize it? A. I utilized it to determine what signs were in the inventory for Big Tujunga Canyon Road.” P194 P195 RECREATIONAL PURPOSE. P196 Newcomb’s Ranch is a private property located on Angeles Crest Highway in Angeles National Forest. Exh.DKG 9 (ANF Corridor plan). App. 322.Exh.DKG 46, App. 1179. Los Angeles Times Article). (Note: Counsel for Defendant stated at the meet and confer that an article found online indicating that Newcomb Disputed. Unsupporte d by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 307 of 325 Page ID #:2614 308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ranch is a private property would suffice) P197 A. Plaintiff testified as follows: Q.” So what was that roadway that you were intending to take that was closed off? A. It was Angeles Crest Highway. Q. Do you know why it was closed off? A. No. There was a CHP Officer. That’s why I said— Q. Okay. A.—The only person I spoke to that morning was a CHP officer. He was blocking the road with his car, and I told him I need to go to Newcomb Ranch Restaurant, and he told me you can’t have access A. Exh. DKG 22 (Kamal Deposition 64:1- 25). App. 711 Disputed. Unsupporte d by admissible evidence. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 308 of 325 Page ID #:2615 309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the road. I said but how do I get to Newcomb restaurant” He told me you have to go back to the freeway. I think it’s something like, Sunland, and from there you go to Big Tujunga Canyon Road. I told him I had no idea where it is. He told me it’s the backbone and something like this to go to Newcomb, and you will find your way there.” P198 To get to Newcomb’s Ranch by motor vehicle from Los Angeles/Oro Vista Blvd. on April 17, 2011 on his way to Newcomb Ranch, Plaintiff had to first drive on BTCR, then turn right on Angeles Forest Highway to then reach Angeles Crest Highway. Exh.DKG 19 of DKG Decla (USA Supp. First RPD (map showing network RDP 00088) App. Exh. DKG 22 (Kamal Deposition 64:1- 25). App. 711 Disputed. Unsupporte d by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 309 of 325 Page ID #:2616 310 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHP TRAFFIC COLLISION REPORT P199 A. CHP Officer Sherman testified at his deposition on April 18, 2013 in Morales v. City of Los Angeles/Kamal v. County of Los Angeles EC 058265 as follows: “A Yes, I'm looking at COLA #76. Based on my report here I received a call at, approximately, 1441 hours on April 17th, 2011. Q Okay. And where were you located when you received the dispatch call? A I was located at Angles Crest Highway, approximately, Mile Marker 39.50. Q Okay. We're going along this line of questioning. About what time did you arrive at the scene of the collision? A.Exh. DKG 19 App. 660-661 (Sherman Deposition “Sherman Depo.” at 25:20- 25; 26:1-14; App. 660,661. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 310 of 325 Page ID #:2617 311 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A It was, approximately, 1621 hours. Q Now, between 1441 hours approximately and 1621 hours approximately, what were you doing? A At that time I -- it's actually not in my report, I wish I'd put it in there. But I was at another traffic collision scene with another motorcycle rider that had went approximately 50-feet or so down the side of the mountain and he was being extracted by helicopter.” AND: B. “Q. How long were you at the scene on the date of this accident? A. Approximately, 15-to-20 minutes, not real long B. Exh.DKG 22 (Sherman Deposition Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 311 of 325 Page ID #:2618 312 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because the parties had already been transported…” Transcript “Sherman Depo.” 82:5-7) App. 669. P200 A. CHP Officer Dustin Sherman testifies as follows in the proceeding Morales v City of Los Angeles/Kamal v. County of Los Angeles EC 058265 regarding the statement he made in his traffic collision report that the needle of Mr. Morales’ motorcycle speedometer was stuck at 65 MPH: “Q How did you know that it being stuck at 65 would be significant in your investigation? A I'm sorry, what's your question? Can you rephrase your question for me? Q Sure. Why was the fact A. Exh.DKG 22 (Sherman Depo. 42:21 43:1-6; App.663, 663a; p. 86:8. App. 670. Disputed. Unsupporte d by admissible evidence. Undisputed as to what the document states. Disputed as to opinions and conclusions Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 312 of 325 Page ID #:2619 313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that it was stuck at 65 significant in your investigation? A I felt that it was an indication that when the collision happened the speedometer had been sheared off the vehicle and had been stuck at what possibly he might have been traveling at that time.” AND “I didn’t really inspect the road.” B. Officer Sherman testified as follows: “there is no way I can absolutely without certainty, you know, sit here and say that’s, you know, precisely the speed he was at. To me it just indicates the speedometer was sliced off at the time of the collision, which B. Exh.DKG22 (Sherman Deposition) 89:14-19” App. 671 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 313 of 325 Page ID #:2620 314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 game me an indication it’s possible that was the speed he was traveling.” C. Sherman also testified as follows: ”Q. Do you have any training that would lead you to come to the conclusion that when the speedometer spliced off that it got stopped at that precise miles per hour? A. I don’t have any specific training that would indicate that.” D. At his deposition (given in the state court proceeding) Hernandez denied that he told Sherman that he (Hernandez) was riding at 60 MPH. E. Robert Snook is a C. Exh.DKG 22 (Sherman Deposition 89:20-25) App. 671. D. Exh. DKG 38 (Hernandez Deposition at 34:14-21. App. 1125. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 314 of 325 Page ID #:2621 315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 retired CHP Sargent with extensive experience and training in collision investigations reconstruction. F. Robert Snook was retained to critique and assess the quality of the Traffic Collision Report authored by CHP Officer Dustin Sherman in connection with the subject collision. G. Robert Snook states in his report: “The TCR reports Morales pre-collision speed at “approximately 65 to 70 MPH” apparently solely based on the detached speedometer assembly. Very little validity can be given to the position of speedometer needle E. Robert Snook Declaration para.4, App.1163; App. 1358-1355 F. App. 1363 (Snook Decla. para 3). G. Robert Snook Declaration (“Snook Decla.”). at para 9; App. 1365; Exh.DKG 54 (Snook Report). App. 1322 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 315 of 325 Page ID #:2622 316 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following a collision. Extreme forces generated during a collision event can have a profound effect on the needles position relative to the vehicle actual speed. Of note in this collision is that the speedometer assembly was found completely detached from Morales motorcycle (meaning it likely incurred multiple impacts) and that the speedometer needle reading (just above 65MPH) was inconsistent with the tachometer needle reading of just above 1,000 rpm”. H. Eric Deyerl, Expert reconstructionist for Defendant testifies: “Q. And I see that in your report you do not opine as to the speed. I mean you J. Exh.DKG 56 (Deyerl Depo. At 71:3-7; 13- 14). App. 1479. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 316 of 325 Page ID #:2623 317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 say unreasonable, but you don’t give a clear figure. There is no number: 65, 50, 55. What do you make of the instrument cluster? A. ….I am not relying on the reading of that speedometer. Q. Ok. And why is that? A. Because it’s inconsistent with the damages to the motorcycles and their points of rest.” P201 Officer Sherman testified as follows: “Just because somebody’s exceeding the speed limit does not necessarily determine that that was the cause of the collision. Exh. DKG 19 (Sherman Depo. 69:1-3) App. 665. P202 P203 USA only reviewed Officer Sherman report when it received Plaintiff’s claim for Exh.DKG 10 (USA responses to Rog I no. 12), App.330; Undisputed Objection. FRE 401. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 317 of 325 Page ID #:2624 318 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damages. Exh.DKG 11 of DKG Decla. (USA Supp. Rog no. 12). App. 354. P 204 In response to Interrogatory No. 13 asking” do the defendant United States employees who were at the collision site believe the CHP report of collision as regards the facts that the employees observed, to be accurate and complete?” USFS has stated: “Defendant lacks sufficient information to respond to this interrogatory at this time” Exh.DKG 10 of DKG Decla. (USA responses to Rogs I, Rogs no. 13) App.330; Exh.DKG 11 of DKG Decla. (USA Supp. Rogs I, Rogs no. 13). App. 354. Undisputed as to what the document states. P205 Robert Snook opines: “1. The traffic Collision Report written by Officer Sherman did not comply Exh. DKG 54 App. 1324 Disputed. Unsupporte d by admissible evidence. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 318 of 325 Page ID #:2625 319 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with all of the CHP’s requirements as outlined in their Collision Investigation Manual. a. The CHP failed to document all the physical evidence that was found at the collision scene.…….. b. The statements documented in the TCR are incomplete and inadequate for this magnitude of a collision event. i. Additional critical information should have been gathered from witnesses to determine the actual cause of why Morales drove out of the eastbound lane and directly into the path of an oncoming vehicle (Kamal) 2. The cause of this collision is not supported by the CHP’s investigation as documented in the TCR. a. Insufficient investigation Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 319 of 325 Page ID #:2626 320 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was conducted by the CHP to determine of Morales was the sole cause of this collision event (as reported by Officer Sherman) or of one or more of the other motorcyclists in the “pack” did something (braking because of the sharp curve, abrupt turning movement, etc…) to cause Morales to swerve into the opposing lane?” P206 CHP Officer Sherman testified as follows: “Q Officer Sherman, at the time of this accident, how long had you been with the California Highway Patrol? A Just a little over a year. Q And I believe you told us earlier this was the first law enforcement job you had? Exh. DKG 19 (Sherman Depo. p. 77:11- 25).App.667. Undisputed as to what the document states. Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 320 of 325 Page ID #:2627 321 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A Yes, it is. Q As of the date of this accident, approximately how many accidents had you ever investigated on Big Tujunga Canyon Rd.? A This may have been the first one I did up there. I'm not exactly sure, but if I had done any prior to it maybe just one or two at the most. Q Okay. In terms of the training you went through with the Highway Patrol, I think you mentioned you had the basic training in terms of accident investigation; is that correct? A Yes. Q Did you ever go on to any advanced courses for accident reconstruction? A No, I've never taken any advanced courses.” Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 321 of 325 Page ID #:2628 322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S CONCLUSIONS OF LAW: 1. Defendant has acted in reckless disregard for Plaintiff’s safety and inflicted upon Plaintiff severe and ongoing emotional distress. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050—1051 [95 Cal.Rptr.3d 636, 209 P.3d 963]). 2. USFS breached its duty of care in the management of its property and its actions and omissions caused the plaintiff’s injuries. Uccello v. Laudenslayer, [44 Cal. App. 3d 505] USFS has jurisdiction over Big Tujunga Canyon Road. Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 60 Cal. Rptr. 2d 448, 929 P.2d 1239. A public entity, as holder of the servient estate, may retain enough control, that is, such kinds of control, as to share liability with the owner of the dominant estate. (See e.g., Holmes v. City of Oakland, supra; cf. Whalen v. Ruiz (1953) 40 Cal. 2d 294 [253 P.2d 457]). 3. USA employees (United States Secretary of Agriculture, The United States Forest Chief, Regional Forester, ANF Forest Supervisor, ANF Law Enforcement Chief, ANF Fire Chief, ANF Forest Engineer, Officers Gonzales, Pina, Pizano) are not entitled to discretionary immunity. Kennewick Irrigation District v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989); (citing Berkowitz v. United States, 486 U.S. 531, 536 (1988) (no discretion to issue a license without first receiving the required test data since to do so would violate a specific statutory and regulatory directive."). The FSM and SHH are replete with mandates. Also, it has been long established that when a government Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 322 of 325 Page ID #:2629 323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 negligently ignores health hazards that were called to its attention, a claim for negligence is not barred. Whisnant v. US S400 F.3d 1177, 1181 (9th Cir. 2005); Green v. United States 630 F.3d 1245 (9th Cir. 2011) (Failure to warn not held to involve competing interests). 4. USFS is not entitled to recreational immunity because Plaintiff entered Angeles National Forest for a purpose other than recreational: his intended destination was a private property and he had no other way to get there from Los Angeles that day. Also, BTCR is a road open to public travel. Seyler v. United States, 832 F.2d 120. 5. Morales is not the sole cause of Plaintiff’s injuries. USFS actions and omissions are at minimum a substantial factor in causing the plaintiff’s injuries. “But for” the defendant’s conduct, the plaintiff’s harm would not have occurred. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d 913, 819 P.2d 872]. /// /// /// /// /// /// /// /// /// Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 323 of 325 Page ID #:2630 324 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// Defendant’s Motion for Summary Judgment or Adjudication of Issues should be denied and Plaintiff’s Motion for Summary Judgment or Adjudication of Issues should be granted. Respectfully submitted, LAW OFFICES OF DALILA KAMAL-GRIFFIN /s/ Dalila Kamal-Griffin __----------------------------------------------- ______________ DALILA KAMAL-GRIFFIN, ESQ. Attorney for Plaintiff Karim Christian Kamal EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ Keith M. Staub KEITH M. STAUB Assistant United States Attorney Attorneys for Defendant United States Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 324 of 325 Page ID #:2631 325 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:15-cv-01585-FMO-JC Document 74-1 Filed 11/10/16 Page 325 of 325 Page ID #:2632 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION KARIM CHRISTIAN KAMAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. No. CV 15-1585 FMO (JCx) Honorable Fernando M. Olguin (PROPOSED) ORDER GRANTING SUMMARY JUDGMENT ON BEHALF OF UNITED STATES OF AMERICA Case 2:15-cv-01585-FMO-JC Document 74-2 Filed 11/10/16 Page 1 of 2 Page ID #:2633 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The motion of defendant United States of America for summary judgment came on regularly for hearing before this Court. After considering the moving and opposition papers, arguments of counsel and all other matters presented to the Court, IT IS HEREBY ORDERED THAT the motion is granted for the following reasons: 1. Plaintiff has not met his burden of establishing negligence because defendant did not owe Plaintiff a duty to design, operate and maintain the roadway on which the accident occurred. 2. Plaintiff’s allegations fall within the discretionary function immunity. 28 U.S.C. § 2680(a). 3. Plaintiff’s claims alleging negligent supervision of the County fall within the discretionary function exception. 28 U.S.C. § 2680(a); Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) 4. The United States, as landowner of the roadway on which the accident occurred, is not liable to recreational users, such as Plaintiff, for negligence. Cal. Civil Code § 846 As such, summary judgment is granted to Defendant United States of America as a matter of law. DATED: _________ _______________________________ Hon. Fernando M. Olguin Presented by: EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division KEITH M. STAUB Assistant United States Attorney Attorneys for Defendant United States of America Case 2:15-cv-01585-FMO-JC Document 74-2 Filed 11/10/16 Page 2 of 2 Page ID #:2634