Rodriguez v. Dep't of Transp.

Caltrans's expert, consulting civil engineer Kim Nystrom, opined the absence of rumble strips in all of the plans was reasonable because there was no identified need for them. Caltrans did not widely use shoulder rumble strips in 1992, and they would not have been included in design plans unless there was a documented need for them, such as a history of vehicles running off the road. As for the later plans, the fact rumble strips were not included indicated the district's traffic safety branch did not recommend their use. According to Nystrom, the reasonableness of the plans was further supported by the fact there had not been any collisions at the accident site that involved vehicles departing the roadway to the right and striking either the guardrail or irrigation ditch.

Rodriguez opposed the motion, stating that he had elected to proceed only on the " 'absence of rumble strips' theory of 'dangerous condition' liability [,]"

Rodriguez acknowledges this evidence would have been sufficient to establish discretionary approval if not for a statement by the Caltrans engineer who approved the 1992 plans, Rajendra, that he "did not consider using rumble strips on the shoulders." Citing to a sentence in Grenier that "[d]esign immunity does not immunize decisions which were not made," ( Grenier, supra, 57 Cal.App.4th at p. 940, 67 Cal.Rptr.2d 454 ) and the rationale behind design immunity, Rodriguez contends Caltrans cannot establish discretionary approval because the purported decision-maker never considered the particular feature or design element at issue, namely whether to install rumble strips. He asserts that if there was never a decision made concerning rumble strips, the quality of the deliberative process cannot be assessed.

Our Supreme Court interpreted the discretionary approval element of section 830.6 in Hampton . There, the plaintiffs contended that " 'approv[al]' by one 'exercising discretionary authority' (§ 830.6), requires an exercise of discretion in the sense of an exercise of judgment or choice, and ... 'one cannot truly exercise judgment or make a choice without an awareness of what is to be judged or chosen.' " ( Hampton, supra, 62 Cal.4th at p. 348, 195 Cal.Rptr.3d 773 , 362 P.3d 417 .) Thus, the plaintiffs argued, " 'only an engineer who realizes a design does not conform to governing standards can truly make a discretionary decision to approve the design despite its nonconformity. By contrast, an engineer who approves a nonconforming design on the mistaken belief it conformed to governing standards has acted through inadvertence, not discretion.' " ( Id. at pp. 348-349, 195 Cal.Rptr.3d 773 , 362 P.3d 417 .)

The Court rejected this contention, as such claims are considered under the reasonableness element of the statute. ( Hampton, supra, 62 Cal.4th at p. 349, 195 Cal.Rptr.3d 773 , 362 P.3d 417 .) Noting that the issue called for statutory interpretation, the Court explained that because the statute permits the discretionary approval element to be established by evidence of either appropriate discretionary approval or

The Court concluded that, when considered as a whole, it was "plain that section 830.6 was intended to avoid second-guessing the initial design decision adopted by an employee vested with authority to approve it, except to the extent the court determines that the employee's approval of the design was unreasonable. It is at the reasonableness stage that the court would consider whether an employee, in either knowingly or unknowingly approving a design that deviates from applicable standards, adopted a design that a 'reasonable legislative body or other body or employee could have approved.' (§ 830.6)." ( Hampton, supra, 62 Cal.4th at p. 351, 195 Cal.Rptr.3d 773 , 362 P.3d 417 .)

In Gonzales, supra, 6 Cal.App.5th 929 , 212 Cal.Rptr.3d 137 , we applied the rationale of Hampton to reject the plaintiffs' claim that to establish "approv[al]" by one "exercising discretionary authority" (§ 830.6), the public entity was required to present evidence of a " 'deliberat[ive] process that resulted in the exercise of judgment[.]' " ( Gonzales, supra, 6 Cal.App.5th at p. 948, 212 Cal.Rptr.3d 137 .) There, the plaintiffs argued that without proof of a decision or explanation of what the public entity considered regarding the appropriateness of its plans, there was no evidence an actual discretionary decision was made and therefore no design immunity. ( Ibid. ) After a thorough analysis of the Court's decision in Hampton , we concluded the plaintiffs' interpretation of the statute-that

Rodriguez states that his " 'real complaint' is that the project engineer never made a decision one way or the other because he 'did not consider rumble strips' at all." He asserts the discretionary approval element does not "speak to, nor immunize, failures to decide, only decisions actually made." In his view, design immunity is vitiated if the employee with discretionary authority to approve a plan or design admits he or she failed to consider the particular feature or design, the absence of which a plaintiff later alleges made the property dangerous.

This is consistent with another case Rodriguez relies on, Grenier, supra, 57 Cal.App.4th 931 , 67 Cal.Rptr.2d 454 . While the appellate court in Grenier cited Cameron for the proposition that "[d]esign immunity does not immunize decisions which were

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of April 29, 2013, Rodriguez was a passenger in a pickup truck

The resident engineer responsible for the construction of the 1992 plans, Michael Honma, declared the project was completed in accordance with the plans Rajendra approved, as evidenced by the "AS BUILT" stamp shown on the applicable plan sheets. Honma explained that rumble strips were not installed because they were not included in the 1992 plans.

As to discretionary approval, Rodriguez did not dispute that any of the project engineers had discretionary authority to approve the 1992, 2002, or 2011 plans or that construction conformed to the approved designs. Instead, he argued Caltrans could not establish the discretionary approval element because Rajendra, who approved the 1992 plans, stated in his declaration that he did not consider placing rumble strips on the shoulders. Rodriguez also argued there was a triable issue of fact as to whether the failure to install rumble strips was a dangerous condition. In support, he proferred the declaration of retained expert Edward Ruzak, a civil and traffic engineer, who opined the absence of rumble strips constituted a dangerous condition, as well as evidence of other vehicle collisions. In reply, Caltrans lodged numerous objections to the evidence of other collisions and Ruzak's declaration.

The trial court granted summary judgment in Caltrans's favor on Rodriguez's dangerous condition of public property claim based on design immunity. The trial court noted that Rodriguez had conceded the first and third elements of design immunity, causation and reasonableness. As for the second element, the trial court found the undisputed material facts and supporting declarations of Caltrans engineers Rajendra, Fukano, and Alicea, established discretionary approval of the design plans at the accident location prior to construction, and the design plans approved in 1992, 2002, and 2011, included a paved shoulder and the absence of rumble strips. In addition, Nystrom's declaration

Rodriguez appealed from the judgment entered after the trial court granted Caltrans's summary judgment motion. "A trial court properly grants a motion for summary judgment where 'all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' ( Code Civ. Proc. § 437c, subd. (c).) 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] " 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' " [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' " ( Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277 , 286, 172 Cal.Rptr.3d 653 , 326 P.3d 253 .)

The sole element of design immunity at issue here is 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, 67 Cal.Rptr.2d 454 .)

Here, Caltrans presented undisputed evidence that the 1992, 2002, and 2011 plans were designed and approved by Caltrans civil engineers, who had

The rationale of Hampton and Gonzales applies equally here. Both cases establish that under the language of section 830.6, all that is required to establish the discretionary approval element is evidence that an employee with discretionary authority approved the plan or design. Here, Caltrans presented such evidence. That the project engineer also stated he did not consider the use of rumble strips is irrelevant to the discretionary approval element. It is relevant, however, to the reasonableness element, as it is at that stage the court considers whether it is reasonable that an employee, in approving a design without considering a particular design feature, adopted a design that "a reasonable ... employee could have approved." (§ 830.6; Hampton, supra, 62 Cal.4th at p. 351, 195 Cal.Rptr.3d 773 , 362 P.3d 417 .) As in Hampton , Rodriguez's "contrary interpretation would undermine the function of the statute's reasonableness element, a result that would be inconsistent with our duty to read the elements of the statute together, harmonizing and giving effect to them all." ( Hampton, supra, 62 Cal.4th at p. 351, 195 Cal.Rptr.3d 773 , 362 P.3d 417 .)

Rodriguez's reliance on Cameron v. State of California (1972) 7 Cal.3d 318 , 102 Cal.Rptr. 305 , 497 P.2d 777 ( Cameron ), is misplaced. There, the plaintiffs alleged their injuries, incurred when they lost control of their car on a highway, were caused by a dangerous condition, namely uneven banking or "superelevation," on a curve in the road. ( Id. at pp. 321-323, 102 Cal.Rptr. 305 , 497 P.2d 777 .) Our Supreme Court reversed a judgment of nonsuit in favor of the State of California on its design immunity claim. ( Id. at pp. 325-326, 102 Cal.Rptr. 305 , 497 P.2d 777 .) The Court noted that while the State had produced evidence the highway design plans were prepared by appropriate county employees and approved by the county board of supervisors, the plaintiffs produced evidence the design plans contained no specification of superelevation; instead, they merely showed the course of the 60-foot right of way and the elevation of the white center stripe. ( Ibid. ) In that situation, design immunity did not attach because there was no evidence the superelevation was the result of, or conformed to, a design approved by the public entity vested with discretionary authority. ( Id. at p. 326, 102 Cal.Rptr. 305 , 497 P.2d 777 .) In so holding, the Court explained the policy behind design immunity would not be implicated because "there would be no reexamination of a discretionary decision ... because there has been no such decision proved." ( Ibid. )

Unlike the plan in Cameron , which did not include the alleged dangerous feature-uneven banking on a curve in the road-the plans here did include the alleged dangerous feature-a paved roadway shoulder absent rumble strips. Therefore,

The judgment is affirmed. Costs on appeal are awarded to Caltrans.

WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.