GENOVEVO GONZALES et al., Plaintiffs and Respondents, v. CITY OF ATWATER, Defendant and Appellant; MICHELLE CARRIZALES, Defendant and Respondent.
No. F070832
Fifth Dist.
Dec. 15, 2016
2 Cal. App. 5th 929
Murphy, Campbell, Alliston & Quinn, George E. Murphy and Suzanne M. Nicholson for Defendant and Appellant.
Dreyer Babich Buccola Wood Campora, Roger A. Dreyer and Stephen F. Davids for Plaintiffs and Respondents.
Powers Miller, R. James Miller and Robert F. Bennett, Jr., for Defendant and Respondent.
OPINION
GOMES, J.—In December 2010, Michelle Carrizales was making a left turn at an intersection in the City of Atwater (City) when she struck and killed Delia Gonzales, a pedestrian in a crosswalk. Gonzales‘s husband and five adult children (collectively plaintiffs) sued Carrizales and the City for wrongful death, alleging Carrizales was negligent and the City was liable under
On appeal from the judgment and order denying its JNOV motion, the City challenges the jury‘s finding that the intersection was in a dangerous condition and asserts it established the design immunity defense as a matter of law. The City also attempts to challenge the jury‘s finding that Carrizales was not negligent and contends the noneconomic damages awarded plaintiffs were
FACTUAL AND PROCEDURAL BACKGROUND
I. The Factual Background
A. The Intersection
Bellevue Road, an east-west thoroughfare through the City, has two lanes in each direction. Linden Street, which intersects Bellevue, is a north-south collector road with one lane in each direction that provides access to the residential area south of Bellevue. Directly north of the intersection is the main driveway serving a Kmart shopping center. Because an elementary school is less than two blocks away, the intersection has three yellow crosswalks—two that run east and west across the Kmart driveway and Linden, and one that runs north and south across the west side of Bellevue.
B. The 2001 Plans
Before 2001, the intersection did not have signals; the side streets—Linden and the Kmart driveway—were controlled by stop signs, while Bellevue was not. In February 2001, the transportation consulting firm Fehr & Peers (F&P) completed a warrants study2 for the City of four intersections along Bellevue, including where Bellevue intersects Linden, to evaluate the need for traffic signals. Based on the study, F&P concluded that a signalized intersection was warranted at Bellevue and Linden, as two warrants for signalization were met: (1) interruption of continuous flow and (2) “four-hour volume.” Warrants for minimum vehicular volume (which tested for the amount of traffic on Bellevue and Linden), minimum pedestrian volume (which looked at the relationship between vehicular traffic volumes and the number of pedestrians crossing the intersection), and 12-month accident history were not met at that time.
Frank Lozano, a civil engineer licensed by the State of California who was employed by the City as its civil engineer from 1999 to 2002, reviewed the warrants study. Based on the study, the city council approved the installation of signals at the subject intersection and retained F&P to design the plans.
The plans F&P developed called for permissive phasing for northbound and southbound traffic, which meant that vehicles traveling north on Linden and south from the Kmart driveway had a green ball signal at the same time. There were no left-turn signals for that traffic; instead, vehicles turning left were required to yield on green and turn when safe to do so. This required northbound drivers to proceed into the intersection, watch for oncoming traffic and check for pedestrians before executing their turns. In contrast, left-turning traffic on Bellevue had a protected left-turn signal, meaning that such traffic would move only on a left green arrow.
Rees stamped the plans in March 2001, which meant that he generally reviewed and approved them and agreed with all aspects of their engineering design as of that date. Rees did not have an independent recollection of the project or conversations he had at the time concerning the plans or whether permissive phasing was discussed. Rees did not personally prepare the light phasing; that was the responsibility of a former F&P employee, Lisa Phillips, who worked under Rees and left the firm in 2003 or 2004. Phillips, however, would not have been responsible for selecting the phasing, as phasing was typically a city recommendation or direction. Based on his practice, Rees believed the City would have selected the permissive phasing for this project.3 At trial, Rees testified he stood by the use of permissive phasing in the plans; he would not have signed the plans had he thought permissive phasing was inappropriate or unreasonable. F&P regularly used permissive phasing on the projects Rees worked on that involved major thoroughfares with minor streets intersecting them.
Lozano, along with his technical staff, reviewed the plans for the City and engaged in the interactive process with F&P that led to the finalization of the
On Lozano‘s recommendation, the city council approved the plans and authorized the call for bids to build the traffic signal at a January 22, 2001 meeting.6 Sometime thereafter, the traffic signals were installed according to the plans.
C. The History of the Intersection After 2001
1. Prior Fatalities
After the signals were installed, vehicles making left-hand turns from Linden onto Bellevue hit and killed two people traveling northbound in the crosswalk that crossed Bellevue in two separate accidents. The first fatality, in December 2002, 77-year-old John Toews, was riding his bicycle in the crosswalk, while the second, in August 2008, was a pedestrian, 90-year-old Winifred Dutton. Neither driver saw the victim before hitting him or her. This was the only intersection with traffic signals in the City in which pedestrian or bicyclist fatalities occurred in a crosswalk.
2. The 2004 Plans
In February 2004, in response to complaints about congestion in the intersection, the City retained Wilbur Elias, a licensed civil and traffic
Elias submitted a proposal to provide traffic engineering plans for the split phasing to the City in February 2004, at a total cost of $3,500. Elias told the City the plans could be completed within two weeks of receiving a notice to proceed, and explained that the contract work would involve some minor wiring changes and changing some of the signal faces from full circle to arrows, to tell drivers it is safe to make a left turn without having to wait for oncoming traffic. Two days later, the City issued a purchase order to prepare the plans that listed a project number of 04-6. Elias forwarded the first draft of the traffic signal modification plans to the City in May 2004; in return, he requested a progress payment of $2,625, which the City issued in June 2004. The completed plans were delivered to the City by August 2004, when Elias demanded the final payment of $875, which the City remitted to Elias the following month.
The City never implemented Elias‘s plan or installed the split phase design. No one at the City knew why the plan was never implemented: the person who would have had that knowledge, Mo Khatami, died before trial.8 With the engineering done and funding admittedly not an issue,9 it is possible the plan was not submitted to the city council for construction approval, although
3. The 2010 Accident
On December 16, 2010, 73-year-old Gonzales was fatally injured when she was hit by a truck driven by Carrizales. Gonzales was crossing Bellevue from south to north in the marked crosswalk when Carrizales made a left-hand turn from northbound Linden onto Bellevue, running right into Gonzales. Carrizales told the officer on the scene that she never saw Gonzales.
II. The Procedural Background
Plaintiffs filed a complaint for wrongful death against the City and Carrizales in October 2011. Plaintiffs alleged the City was liable for a dangerous condition of public property, including improper timing or phasing of the signals and failure to provide appropriate signage to alert vehicles to the presence of pedestrians in the crosswalk, and Carrizales was negligent in the operation of her vehicle.
A. The Summary Judgment Motion
The City moved for summary judgment, arguing, among other things, that it was entitled to design immunity pursuant to
B. The Jury Trial
A 15-day jury trial was held at which 20 witnesses testified, including expert witnesses Richard Ryan and James Jeffery, who were retained by plaintiffs and the City, respectively.
1. Plaintiffs’ Engineering Expert, Richard Ryan
Plaintiffs’ engineering expert, Richard Ryan, reviewed the F&P warrants study and plans, and did not see any analysis, conclusion or rationale that
While Ryan would not have designed the signals the same way, he agreed that the 2001 plans were well designed, the signals were built the way they were designed, and the permissive signal clearly was an option to be considered. He could not say whether the 2001 plans were reasonable or unreasonable, as he did not have any information regarding how the decision to use a permissive signal on Linden and a protected signal on Bellevue was made. Ryan opined that the signals should have been either all protected or split phase, not protected in one direction and permissive in the other. This was his personal decision based on what he knew from 2001; he could not judge the 2001 plans because maybe the designer knew something he did not know. If an engineer had written down his or her thought process, Ryan could have rendered an opinion regarding the reasonableness of the 2001 plans; the City, however, had not provided any document that reflected any kind of engineering judgment.
Ryan was unaware of any “cookbook” an engineer could consult which states special consideration need be given to the factors he cited; instead, signal design is part of “engineering judgment” derived from being knowledgeable about the issues around signal phasing, design and operation. In this case, the presence of generators for pedestrians, such as Kmart, the school and the residential area, should have been considered, as well as the aging United States population and that there are more pedestrians today than ever before as people are more health conscious. Ryan agreed there is no warrants analysis for split phasing, although there are some guidelines, and no standard or specifications that require the use of split phasing. Instead, it is a judgment call based on what the engineer sees.11
As pertinent here, Elias, who plaintiffs called as a witness in their case-in-chief, testified that the 2001 plans were reasonable engineering plans when they were made. The presence of yellow crosswalks, a shopping center to the north, or the residential area to the south, did not change his opinion that the plans were reasonable, as those were not unusual features. The aging population also would not change his opinion as to reasonableness. The plan was not rendered unreasonable merely because a driver turning left through the crosswalk would approach a pedestrian crossing northbound in the crosswalk from behind, as that happens all the time, and that was pretty typical or commonplace in terms of these kind of designs.
According to Elias, split phasing is an exception when it comes to traffic signal design. Ninety percent of the state‘s lighted intersections use permissive phase signals; the split phase design is generally reserved for intersections with unique physical characteristics not present here.
3. Plaintiffs’ Concession on Reasonableness
F&P engineer Rees testified as part of the City‘s case. During a break in Rees‘s testimony on direct examination, the parties and trial court discussed the subject matter of his testimony outside the jury‘s presence. During an in-chambers conference, plaintiffs’ attorney objected to Rees rendering opinions, which the City asserted he could do because it had designated him as a nonretained expert. Plaintiffs’ attorney, Roger Dreyer, explained that during Rees‘s deposition as F&P‘s person most knowledgeable, Rees‘s attorneys instructed him not to answer questions that asked for opinions and took the position that he would not render any. Thereafter, the City disclosed Rees as a nonretained expert, but plaintiffs did not retake his deposition. Dreyer argued that because the City did not disclose Rees as a retained expert, it was stuck with his position that he was not going to render any opinions.
The court asked the City‘s attorneys, Bradley Post and Stephanie Wu, whether they were going to ask Rees to render opinions on subject matters he refused to respond to during his deposition. Post responded they were, and explained that Rees did not render opinions because his deposition had been noticed as the “person most knowledgeable.” Post added that after Rees was designated as a nonretained expert, plaintiffs had every opportunity to retake his deposition, but chose not to.
The trial court disagreed with the City‘s position, but thought the issue was premature since it did not know what Rees would be asked. The court gave Post the option of making an offer of proof. Post stated he intended to ask
The trial court asked whether the ultimate issue of whether the plans were reasonable was a question of fact for the jury. When Post and Wu responded it was not, the trial court asked if it was a question of law for the court. Post stated that it “all comes down to the design immunity. That‘s really the purpose of—.” The trial court interrupted, stating that was a “good comment to break off on,” and asked if there was “a contention by the plaintiff in this case that the 2001 design, when it was adopted and approved, is unreasonable?” Dreyer responded: “No, Your Honor.” The trial court added: “So we don‘t have a material issue there.” The trial court discussed the remaining areas of inquiry and allowed Dreyer to explain his objections further. The trial court then ruled: “I understand. All right. So the whether the plans were reasonable, that‘s not an issue. Whether it was stamped and sealed and what that means, that‘s already been testified to by Mr. Lozano. It doesn‘t seem to be a relevant issue either. It doesn‘t seem material since there‘s no dispute the plans are reasonable at the time they were approved. So the only question is whether or not he can testify as to the light phasing being a common practice back in 2001. I‘m going to permit him to testify to that since it‘s already in the record. It‘s cumulative, so let‘s not spend a lot of time on it.”
4. The City‘s Engineering Expert, James Jeffery
The City‘s expert, James C. Jeffery III, a licensed traffic and civil engineer, testified that there are no warrants studies or check-the-box forms to use to figure out what type of signal, protective or permissive, should be installed. Instead, there are guidelines used to determine the type of signal to install, which require the use of one‘s engineering judgment in interpreting and applying them. One such guideline is the Manual of Uniform Traffic Control Devices (MUTCD), which provides guidelines and options engineers may use when installing or modifying signals.
Jeffery relied on a portion of the MUTCD in forming his opinion regarding whether the signalization at the time of the incident was appropriate; it states that a protected left-turn phase should be considered where certain alternatives could not be utilized and certain conditions exist. None of the alternatives—prohibiting left turns, making geometric changes to eliminate
In Jeffery‘s opinion, the 2001 plans and F&P warrants study speak directly to the decisionmaking process used to select permissive phasing in 2001. Based on the warrants study, a decision was made to install a signal at the subject intersection and to prepare plans to effectuate the signal. Jeffery was not aware of any requirement that engineers document all of their mental processes when making an engineering decision. In Jeffery‘s opinion, the phasing had nothing to do with the fact that there is a commercial development to the north, a residential area to the south, a school or an aging population, as none of these are unique features; instead, the intersection was like almost any other place where signals are installed except industrial areas or the like. As such, there was nothing wrong with having permissive phasing in 2001. Jeffery opined that the intersection as it existed immediately after the 2002 accident was not dangerous, split phasing was not required at that time and he would not have recommended it.
C. The Motion for Directed Verdict
At the close of the evidence, the City moved for a directed verdict on the grounds that the undisputed evidence established it was entitled to design immunity as to the 2001 plans under
The trial court later explained its problem: since the intersection in 2010 did not conform with the 2004 plans, which were an approved modification,
D. The Jury‘s Verdict
The jury returned a special verdict in plaintiffs’ favor. It found that the intersection was in a dangerous condition at the time of the incident, the condition created a reasonably foreseeable risk that this kind of incident would occur, the City had notice of the dangerous condition long enough to protect against it, and the dangerous condition was a substantial factor in causing plaintiffs’ harm. As to Carrizales, the jury found she was not negligent, and assigned 100 percent of the responsibility for plaintiffs’ harm to the City. The jury awarded plaintiffs $3,214,134 in damages comprised of $14,134 for funeral and burial expenses, $1.2 million for past noneconomic losses, and $2 million for future noneconomic losses.
E. The Motions for JNOV and New Trial
After judgment was entered, the City moved for JNOV and a new trial. In the motion for JNOV, the City sought to set aside the judgment and to have the court enter judgment in its favor on a number of grounds, including that it was entitled to immunity under
Following oral argument on the motions, the trial court denied them both. On the motion for JNOV, the trial court explained that it denied the City‘s motion for directed verdict, not because it felt the City had forfeited the original design immunity due to a change in physical condition, but because the City approved a different design, which it did not implement, and therefore the intersection did not conform with the 2004 design at the time of the accident. Thus, the forfeiture was the results of the City‘s changing the design but not building it, even though it had plenty of money to do so. In response, the
When Wu asked the trial court if it agreed the City had design immunity for the 2001 plans, the trial court responded that it never decided whether the plans were reasonable, but if they were, there was a presumption of immunity since the plans were approved and implemented. The trial court, however, explained that it never got to immunity for the 2001 plans because it was looking at whether the intersection as it existed in 2010 complied with the approved 2004 plans.
With respect to reasonableness, Wu asserted plaintiffs conceded that issue during trial, which was why the City did not argue the issue or present further evidence about it. Wu argued that if reasonableness was the only undetermined element that prevented the trial court finding design immunity, plaintiffs had conceded the issue, and if design immunity vested in 2001 after the signals were constructed, the only way it would no longer apply is if it were lost. Design immunity, however, could not have been lost because there had not been a change in physical condition and the 2004 design was not built.
Dreyer agreed with the trial court‘s analysis and asserted it did not need to reach the issue of immunity for the 2001 plans because the City had a new plan. Dreyer asserted he never agreed the City had immunity for the 2001 plans or that those plans were reasonable, claiming the issue was that the City never acted on the 2004 plans, even though they were approved, due to the City‘s dysfunction. Dreyer wanted to make plaintiffs’ position “very clear” “that we never had to deal with this issue of reasonableness, and it was that conversation just to get to the 2004 when we had the hearing on this issue.”12 Dreyer also asserted hiring Elias to draw up the 2004 plans demonstrated the City had lost confidence in the 2001 design.
When Wu pointed out that the reporter‘s transcript showed that Dreyer conceded the 2001 plans were reasonable during Rees‘s testimony, not during the motion for directed verdict, Dreyer responded that at the time, they were dealing with “that discrete issue, and we already had all of the evidence relative to the plan of 2004. It‘s not it‘s an overstatement in terms of how they‘re arguing it.” After Dreyer argued further on other issues raised, the trial court denied both the motion for new trial and motion for JNOV.
While the City raises a number of issues on appeal, we address only one—the design immunity of
I. General Principles Governing Design Immunity
“Under the Government Claims Act, ‘[a] public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by statute.‘” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).) “The Government Claims Act (Act) provides for direct liability on the part of public entities for injuries caused by maintaining dangerous conditions on their property when the condition ‘created a reasonably foreseeable risk of the kind of injury which was incurred’ and either an employee‘s negligence or wrongful act or omission caused the dangerous condition or the entity was on ‘actual or constructive notice’ of the condition in time to have taken preventive measures.” (Id. at pp. 347–348; see
Even if a dangerous condition is demonstrated, a public entity may still prevail through a variety of statutory immunities, which the public entity may assert as an affirmative defense. (Hampton, supra, 62 Cal.4th at p. 348.) The present case concerns the affirmative defense of design immunity under
Design immunity is often raised on a motion for summary judgment or nonsuit, thereby enabling the trial court to find the defense established as a matter of law. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939–940 (Grenier).) “The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed.” (Id. at p. 940.)
The third element, whether there is any substantial evidence of the reasonableness of the public entity‘s approval of the plan or design, is a question statutorily reserved for the court, not a jury. (Cornette, supra, 26 Cal.4th at p. 72;
The City appealed from the order denying the motion for JNOV. A trial court must render JNOV whenever a motion for directed verdict for the aggrieved party should have been granted. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 (Sweatman);
Since the parties agree that the first element—a causal relationship between the design and the fatality—has been satisfied, the present case concerns the second and third elements of design immunity set out in
II. Discretionary Approval
We begin with discretionary approval. This “‘simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.’ [Citation.] A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval.” (Grenier, supra, 57 Cal.App.4th at p. 940.) Discretionary approval need not be established with testimony of the individual who approved the project. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 730–731, disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73–74 & fn. 3.) A former employee may testify to the entity‘s “discretionary approval custom and practice” even if the employee was not involved in the approval process at the time the challenged plan was approved. (Alvarez, at p. 732.)
Here, the City presented undisputed evidence that the 2001 plans were designed by professional engineering firm F&P, reviewed and approved by City Engineer Lozano, who had the discretionary authority to approve the plans, and approved by the city council. The 2001 plans consist of detailed drawings of the intersection where the accident occurred, including the light phasing and signage. This evidence demonstrates the discretionary approval element as a matter of law. (See, e.g., Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263 (Laabs) [evidence that an engineer employed by the public entity “reviewed and approved” construction plans established discretionary approval element as a matter of law]; Grenier, supra, 57 Cal.App.4th at p. 941 [city established discretionary authority element as a matter of law where “plans were prepared by Saguchi, a civil engineer, and approved by Alvarado, the city engineer, after review“]; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525 [discretionary approval element established as a matter of law where “the City‘s engineer, along with the engineers and other officials of the county who were recognized as being competent in the design of highways, approved the design before it was adopted by the City“].)
Our Supreme Court recently rejected a similar claim in Hampton, supra, 62 Cal.4th 340. There, the plaintiffs, a driver who was seriously injured in an automobile accident at an intersection and his wife, sued the County of San Diego for a dangerous condition of public property, alleging the design and construction of the intersection afforded inadequate visibility under applicable county design standards. (Id. at pp. 343–344.) The county moved for summary judgment based on design immunity, arguing the discretionary approval element was satisfied based on a county traffic engineer‘s declaration, which described the approval process for the intersection‘s plans: Before construction, a licensed civil and traffic engineer in charge of the county‘s design engineering section, and to whom the county board of supervisors delegated discretion and authority to approve plans, signed the plans, and after the project was completed, another licensed civil engineer, who served as senior civil engineer of the design engineering section, approved and signed the as-built plans. (Id. at pp. 344–345.) In opposing the motion, the plaintiffs asserted there were disputed issues of fact regarding discretionary authority as the plans did not show a raised embankment that the plaintiffs claimed rendered visibility inadequate under applicable county design standards. (Id. at p. 345.) The trial court granted the motion, as the county established all three elements of design immunity—discretionary approval was established through evidence that the engineer who approved the plans had the discretion and authority to do so, and another engineer signed off on the as-built plans. The appellate court affirmed. (Id. at pp. 346–347.)
Before the Supreme Court, the plaintiffs challenged the discretionary approval element. They contended that “‘approv[al]’ by one ‘exercising discretionary authority’ (
The court disagreed, as the plaintiffs’ claim was essentially that there was an abuse of discretion, which is considered under the reasonableness element of the statute, not the discretionary approval element. (Hampton, supra, 62 Cal.4th at p. 349section 830.6 describes the provision as ‘provid[ing] immunity where a governmental body exercises the discretion given to it under the laws of the State in the planning and designing of public construction and improvements.‘” (Id. at p. 349.)
The court noted another Law Revision Commission statement “suggests that the discretionary approval element of
The Hampton plaintiffs’ interpretation also conflicted with the statutory language, which “‘provides that the discretionary element may be established either by evidence of appropriate discretionary approval or evidence that the plan conformed with previously approved standards. (
It was plain to the court that, considered as a whole,
The court also noted practical problems with the plaintiffs’ interpretation: “Although objective proof of the fact of approval by an employee with authority to approve the plan may be readily available, evidence of the standards actually considered by the decision makers, as well as the reasoning and motivation of those employees, will be much more scarce with the passage of time. Plaintiffs’ interpretation could produce the anomaly of different immunity outcomes for identical designs depending simply upon the record-keeping ability of the public entities involved, or the availability of employees who are able to remember the decisionmaking process of the persons involved—a process that may have occurred long before the lawsuit.” (Hampton, supra, 62 Cal.4th at p. 351.)
The court acknowledged that two appellate court cases supported the plaintiffs’ interpretation of the statute. In one of those, Levin v. State of California (1983) 146 Cal.App.3d 410 (Levin), the
Noting that Levin and Hernandez relied on Cameron, the Hampton court explained that Cameron is not authority for the interpretation of
The Cameron court explained that because the state did not present any evidence that the superelevation was the result of, or conformed to, a design
The Hampton court explained its discussion in Cameron of the rationale behind design immunity, along with its comment that there had been no discretionary decision on the superelevation, “were not intended to and did not suggest that, under the discretionary approval element of section 830.6, the public entity bears the burden of demonstrating that its employee considered all potentially applicable standards. Indeed, such a requirement would constitute a surprising retreat from the basic understanding that the discretionary approval element of design immunity asks whether a person vested with discretion to approve the plan did approve the plan or design that was built, and that the question whether it was wise to approve the plan is judged under the reasonableness element of the statute.” (Hampton, supra, 62 Cal.4th at p. 357Cameron that “the state‘s engineer declared that ‘the design contained in the plans was in accordance with mid-1920 standards of design and was reasonable’ (Cameron, supra, at p. 325), . . . nothing in our statement suggests that, as opposed to being a circumstance that was relevant to the reasonableness of the plans at the time they were adopted in 1920, evidence concerning the approving employee‘s awareness of applicable standards was necessary to the prima facie showing for discretionary approval element.” (Hampton, supra, 62 Cal.4th at pp. 357–358.)16
Here, plaintiffs’ interpretation of the statute—that proof of how a decision is made is necessary to establish the exercise of discretionary authority—is not supported by the statute‘s language or intent. As in Hampton, plaintiffs’ interpretation (1) would implicate the adequacy of the deliberation process at the discretionary approval stage and lead the jury into second-guessing the wisdom of the design that the statute was intended to avoid; (2) conflicts with the statutory language, as an exercise of “discretionary authority to give such
Plaintiffs contend that Cameron, supra, 7 Cal.3d 318, and Levin, supra, 146 Cal.App.3d 410, support their interpretation. Their reliance, however, is misplaced; as the Hampton court explained, Cameron does not stand for the proposition that the discretionary approval element requires the public entity to demonstrate its employee considered all potentially applicable standards. (Hampton, supra, 62 Cal.4th at p. 357.) Instead, the discretionary approval element asks whether a person vested with discretion to approve the plan actually approved it, and the wisdom of approving the plan is judged under the reasonableness element. (Ibid.)
Plaintiffs contend there is no evidence the City made a decision to adopt permissive phasing as part of the 2001 plans. We disagree, as the fact that permissive phasing was part of the plans shows that a decision was made to use that type of phasing. Even if permissive phasing was adopted by default and no other type of phasing was considered, its use was still a design decision. Plaintiffs’ real complaint is the lack of evidence of the deliberative process, but as we explained, that is not required to show discretionary approval. Instead, the wisdom of approving the 2001 plans with permissive phasing is judged under the reasonableness element of
III. Reasonableness of the 2001 Plans
As discussed above, a public entity claiming a design immunity defense must present substantial evidence supporting the reasonableness of the plan or design. (Cornette, supra, 26 Cal.4th at p. 69.) Our task “is to apply the deferential substantial evidence standard to determine whether any reasonable [public] official could have approved the challenged design. [Citation.] If the record contains the requisite substantial evidence, the immunity applies, even if the plaintiff has presented evidence that the design was defective.” (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 757.) “The fact of approval by competent professionals can, in and of itself, establish the reasonableness element.” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 187, disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73–74 & fn. 3.) However, “[t]ypically, ‘any substantial evidence’ consists of an expert opinion
Both parties make arguments regarding whether there was substantial evidence of the reasonableness of permissive phasing in the 2001 plans. We do not reach the merits of those arguments, however, because, as the City points out, the record shows plaintiffs conceded at trial that the 2001 plans were reasonable when they were approved.17 Contrary to plaintiffs’ assertion, both below and on appeal, that the concession was made during post-trial hearings, the concession actually was made in the midst of the City‘s case-in-chief, during a break in the direct examination of one of its witnesses. While the parties and the court were discussing the scope of the testimony of that witness, plaintiffs’ attorney clearly answered “No, Your Honor,” when the trial court asked if plaintiffs were contending that the 2001 design was unreasonable when it was adopted and approved. Plaintiffs’ attorney also did not correct the trial court when the court stated, soon thereafter, that whether the plans were reasonable was not an issue.
On appeal, plaintiffs attempt to avoid the impact of this concession by asserting their attorney‘s representation as to their position was inadvertent and a “spontaneous utterance.” They claim they argued reasonableness of the 2001 plans through their expert, Ryan, and there is nothing in the record to suggest their attorney‘s “inadvertently incorrect statement was binding.”
We conclude that plaintiffs are bound by the concession and decline to reach the merits of the arguments regarding reasonableness the parties raised in their appellate briefs. Similar to a stipulation, a concession by counsel at trial or judicial admission eliminates the need to prove the fact at issue admitted and is binding on the client absent fraud. (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 605–606 [defense counsel‘s unequivocal invitation to a plaintiff‘s verdict in opening statement was a concession of liability]; Bank of America v. Lamb Finance Co. (1956) 145 Cal.App.2d 702, 708 [no prejudice from jury denial where defense counsel conceded liability on second day of trial]; Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 561–562 [counsel‘s admission at trial eliminated complaint allegation that an accounting had been requested from defendants].)
IV. Conclusion
Since all of the elements of design immunity are established, the City is immune from liability for any dangerous condition of the intersection.18 Based on the City‘s immunity, the judgment against the City cannot stand and we have no choice but to reverse it.
DISPOSITION
The judgment against the City is reversed. The matter is remanded to the trial court with directions to enter judgment in favor of the City. Costs on appeal are awarded to the City.
Levy, Acting P. J., and Kane, J., concurred.
On January 10, 2017, the opinion was modified to read as printed above. The petition of plaintiffs and respondents for review by the Supreme Court was denied March 29, 2017, S239697.