Filed 4/1/20
                    CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                          DIVISION EIGHT

TEANNA FORD,                         B290236

      Plaintiff and Appellant,       (Los Angeles County
                                      Super. Ct. No. BC545985)
               v.

CITY OF LOS ANGELES,

       Defendant and Respondent.


     APPEAL from the judgment of the Superior Court of Los
Angeles County. Michele E. Flurer, Judge. Affirmed.

     Balaban & Spielberger, Daniel K. Balaban; Esner, Chang &
Boyer, Holly N. Boyer, Shea S. Murphy; Law Office of Anton R.E.
Richardson and Anton R.E. Richardson for Plaintiff and
Appellant.

     Reily & Jeffery and Janine K. Jeffery for Defendant and
Respondent.

                           **********
       Plaintiff and appellant Teanna Ford was struck by a car
while crossing a street on her way to school. Plaintiff sued
defendant and respondent City of Los Angeles, contending the
intersection in which she was hit constituted a dangerous
condition of public property within the meaning of Government
Code section 835. A jury returned a defense verdict, finding the
property was not in a dangerous condition at the time of the
incident.
       Plaintiff now appeals, arguing the trial court committed
evidentiary error in relying on the privilege set forth at title 23 of
the United States Code section 409 (section 409) to preclude
admission of a document in which defendant acknowledged the
subject intersection was hazardous. Plaintiff also contends
defense counsel committed numerous acts of misconduct during
trial.
       We conclude the trial court correctly found the document
was privileged and there was no prejudicial misconduct. We
therefore affirm.
       FACTUAL AND PROCEDURAL BACKGROUND
       On the morning of October 1, 2012, plaintiff, a sophomore
at Crenshaw High School, was walking to school. While crossing
West Slauson Avenue (a four-lane street) in a marked crosswalk,
plaintiff was struck by a car. She suffered multiple injuries,
including broken bones in her leg that required corrective
surgeries. Plaintiff filed this action against defendant and the
driver of the car that struck her. The driver was not a party to
the trial below and is not a party to this appeal.
       Plaintiff alleged the intersection of West Slauson and
11th Avenues in the city of Los Angeles constituted a dangerous
condition of public property. Plaintiff further alleged defendant




                                  2
had installed a traffic signal at the intersection but had failed to
timely complete the installation, such that it was not operable on
the day plaintiff was struck.
       Plaintiff obtained discovery concerning a 2007 incident at
the same intersection that involved a pedestrian fatality, as well
as documents related to defendant’s investigation of that incident
and its subsequent application in 2008 for federal funds to
improve the intersection pursuant to the Highway Safety
Improvement Program (HSIP). Federal funds were provided to
install the traffic signal but installation of the signal was not
complete by the date of plaintiff’s injuries.
       Relying on the privilege codified at section 409, defendant
objected to production of its application for HSIP funds. Plaintiff
moved to compel. The trial court denied plaintiff’s motion,
finding the application was protected from discovery by section
409.
       The case proceeded to a jury trial in February 2018.
Defendant moved in limine to preclude admission of the
application for HSIP funds at trial, again relying on section 409
as well as the pretrial discovery order. Defendant did not seek to
preclude admission of any of the attachments to the application
such as traffic collision reports. The court granted defendant’s
motion, finding defendant’s application for HSIP funds was
privileged under section 409 and therefore inadmissible.
       Plaintiff’s counsel obtained an order from the trial court
finding plaintiff unavailable to testify due to mental illness and
allowing excerpts from her deposition testimony and written
discovery responses to be read into the record.
       From the deposition excerpts, the jury learned plaintiff had
walked the same route to school many times, which included




                                 3
crossing the intersection at West Slauson and 11th Avenues
where she was hit by the car. It was sunny and clear on the
morning she was hit. Plaintiff waited at the curb for a break in
traffic. She recalled looking in both directions before stepping off
the curb and did not see any cars approaching. She recalled a
boy on a skateboard traveling ahead of her in the crosswalk.
Plaintiff was walking in the marked crosswalk and was almost to
the center of Slauson when she was struck by the car. She did
not see the car at any time before it hit her. She admitted having
a cell phone with her but said “[i]t was put up in [her] bag” at the
time.
       Certain portions of plaintiff’s written discovery responses
were read into the record, including her admission she believed
the driver of the car that hit her had been negligent in failing to
yield the right of way to her.
       Evidence was presented concerning the 2007 incident at
the same intersection that resulted in the death of a Crenshaw
High School student. Defendant presented employee witnesses
who testified about the post-accident investigation of that
incident, their review of traffic flows at the intersection, the
initial consideration of a “smart crosswalk,” and defendant’s
eventual decision to proceed with installation of a traffic signal.
Defendant presented testimony concerning the receipt of HSIP
funds in June 2008 for the installation of the signal, as well as
the various procedural steps that had to be completed before the
construction project could be undertaken. Construction of the
signal was eventually completed in February 2013, and the signal
became operational in March 2013, about five months after
plaintiff was injured.




                                 4
       Both parties presented expert testimony regarding the
design features of the intersection. Both experts described the
intersection as a “mid-block” intersection, meaning an
intersection between two signalized intersections. Plaintiff’s
expert, Edward Ruzak, stated his opinions about the aspects of
the intersection that made it dangerous for pedestrians like
plaintiff, including its close proximity to a signalized intersection.
Defendant’s expert, David Royer, stated his opinion that just
because the safety of the intersection could be improved by the
addition of a traffic signal did not mean the intersection was
unreasonably hazardous without a signal.
       The jury returned a verdict in favor of defendant,
answering “No” to the first question on the special verdict form:
“Was the property in a dangerous condition at the time of the
incident?”
       Judgment was entered in defendant’s favor on March 21,
2018. Plaintiff’s motion for new trial was denied.
       This appeal followed.
                            DISCUSSION
1.     The Evidentiary Ruling
       Plaintiff contends the trial court erred in precluding
admission of defendant’s application for HSIP funds. She
maintains the application was not cloaked by the privilege set
forth at section 409 and even if it was, defendant waived the
benefit of the privilege by placing the application in issue as a
defense. Plaintiff argues the ruling was prejudicial because it
allowed defendant to conceal from the jury its admission that it
believed the intersection was hazardous while simultaneously
allowing defendant to argue it had acted reasonably by making
efforts to improve the safety of the intersection. We disagree.




                                  5
       a.     Background
       Since the late 1960’s, “Congress has endeavored to improve
the safety of our Nation’s highways by encouraging closer federal
and state cooperation with respect to road improvement projects.”
(Pierce County v. Guillen (2003) 537 U.S. 129, 133 (Pierce).)
Various federal programs assist the States in identifying and
evaluating roads and highways in need of safety improvements
and provide funding for those projects. (Ibid.)
       One of those programs, the Hazard Elimination Program
(23 U.S.C. § 152)1, requires any state that wants federal funds for
safety improvement projects to “undertake a thorough evaluation
of its public roads.” (Pierce, supra, 537 U.S. at p. 133.) Shortly
after the program was adopted, the States objected to the lack of
confidentiality protecting the documentation of their compliance
with the program. (Ibid.) The Secretary of Transportation
reported to Congress that “the States feared that diligent efforts
to identify roads eligible for aid under the [p]rogram would
increase the risk of liability for accidents that took place at
hazardous locations before improvements could be made.” (Id. at
p. 134.) The Secretary recommended “the adoption of legislation
prohibiting the disclosure of information compiled in connection
with the Hazard Elimination Program.” (Ibid.)
       In 1987, Congress responded by enacting section 409.
(Pierce, supra, 537 U.S. at p. 134.) The statutory language was
expansive in scope, precluding the admission of specified
documents into evidence “in Federal or State court or considered


1      Title 23 of the United States Code section 152 was later
amended and is now codified at section 148. We use section 152
to be consistent with the language in Pierce.




                                 6
for other purposes in any action for damages.” (Ibid.) Congress
chose to protect a broad range of records and not just those
records generated by States complying with the Hazard
Elimination Program. Under the first prong of the statute, the
privilege applies to safety improvement projects pursuant to
sections 130 (Railway-Highway Crossings) and 144 (Highway
Bridge Replacement and Rehabilitation Program) of title 23 of
the United States Code, in addition to the Hazard Elimination
Program at section 152. The second prong of the statute is more
general and protects the same types of records if they were
compiled or collected for “the purpose of developing any highway
safety construction improvement project which may be
implemented utilizing Federal-aid highway funds.” (§ 409; see
also Pierce, at p. 134.)
       In 1991, Congress amended section 409 to further broaden
the scope of its protections. To clarify any ambiguity as to
whether section 409 was intended to preclude disclosure in
pretrial discovery, the privilege was made expressly applicable to
pretrial discovery. In addition, the phrase “compiled” was
changed to “compiled or collected.” (Pierce, supra, 537 U.S. at
p. 135.)
       As amended, section 409 now provides: “Notwithstanding
any other provision of law, reports, surveys, schedules, lists, or
data compiled or collected for the purpose of identifying,
evaluating, or planning the safety enhancement of potential
accident sites, hazardous roadway conditions, or railway-highway
crossings, pursuant to [title 23 of the United States Code]
sections 130, 144, and 148 . . . or for the purpose of developing any
highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds shall not be




                                 7
subject to discovery or admitted into evidence in a Federal or
State court proceeding or considered for other purposes in any
action for damages arising from any occurrence at a location
mentioned or addressed in such reports, surveys, schedules, lists,
or data.” (Italics added.)
       b.    Standard of review and analysis
       The trial court’s ruling precluding the admission of the
application for HSIP funds pursuant to section 409 presents a
mixed question. We generally review a trial court’s ruling on the
admissibility of evidence under the deferential abuse of discretion
standard. (McCoy v. Pacific Maritime Assn. (2013)
216 Cal.App.4th 283, 295 [ruling on a motion in limine to exclude
evidence reviewed for abuse]; see also Zhou v. Unisource
Worldwide (2007) 157 Cal.App.4th 1471, 1476.) However, our
review is de novo to the extent the correctness of the court’s
ruling is dependent on the interpretation of the federal statute.
(Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524,
529.)
       In her written opposition to defendant’s motion in limine,
plaintiff conceded that documents created, compiled or collected
for purposes of participating in a federal funding program were
covered by the section 409 privilege. However, plaintiff
thereafter asserted during trial the same argument she raises
here, that section 409 does not apply to defendant’s application
for federal safety funds because it is not a “report[], survey[],
schedule[], list[], or data” within the meaning of section 409. She
maintains that evidentiary privileges must be strictly construed
and that if Congress wanted to cover applications, it could have
included the word “application” in the list of documents covered
by the privilege.




                                 8
       It is true that “statutes establishing evidentiary privileges
must be construed narrowly.” (Pierce, supra, 537 U.S. at p. 144.)
But plaintiff’s argument, that an application is not a report,
survey, schedule, list, or data, is not a fair construction of
section 409. Rather, it is a hyper-technical construction that is
inconsistent with the clear legislative intent behind section 409
to improve the safety of our Nation’s roadways by encouraging
states to thoroughly investigate and candidly disclose hazardous
roadways to the federal government.
       Pierce made clear that section 409 “protects not just the
information an agency generates . . . but also any information
that an agency collects from other sources.” (Pierce, supra,
537 U.S. at p. 145.) Nothing in the text of the statute, or in the
construction of the statute adopted by the Supreme Court in
Pierce, supports a conclusion that the application a State or local
entity is required to submit to obtain federal funds for a road
safety improvement project is not covered by the privilege
because the statutory language does not contain the word
“application.” It would be unreasonable to construe section 409
to protect the reports, surveys and data summarized in the
application but not the application itself.
       Congress enacted section 409 “to quell states’ fears that
‘diligent efforts to identify roads eligible for aid under [federal
highway safety programs] would increase the risk of liability for
accidents that took place at hazardous locations before
improvements could be made.’ ” (Carson v. CSX Transp., Inc.
(S.C. 2012) 734 S.E.2d 148, 153 [rejecting as hyper-technical the
argument that testimony about documents privileged under
section 409 was not privileged because testimony is not a
“report[], survey[], schedule[], list[] or data” under the statute];




                                  9
see also Long v. State (La. 2005) 916 So.2d 87, 99 [section 409
was enacted to foster candor and to allow States to “compile
information without hesitation and fear that information
collected may be used against them in private litigation”];
Perkins v. Ohio DOT (Ohio Ct.App. 1989) 584 N.E.2d 794, 802
[purpose of section 409 “is to foster the free flow of safety-related
information by precluding the possibility that such information
later would be admissible in civil suits”].)
       There is no dispute the application is a document generated
by defendant to obtain federal HSIP funds for a safety
improvement project. It necessarily consists of data defendant
compiled for that specific purpose, as well as defendant’s
evaluation of that data and conclusions about the safety of the
intersection. It is precisely the type of document section 409 was
enacted to protect, and the trial court did not err in finding it
inadmissible.
       Plaintiff’s reliance on Department of Transportation v.
Superior Court (1996) 47 Cal.App.4th 852 is unavailing. The
court there concluded that the Caltrans reports and records were
not privileged because they were not compiled or collected
pursuant to the Hazard Elimination Program. (Id. at pp. 856-
858.) As we have explained, there is no dispute here the
application was submitted to obtain federal funds for a roadway
safety improvement project.2 Nothing in Department of

2      In its papers before the trial court, defendant maintained
the application was submitted pursuant to the Hazard
Elimination Program (the first prong of the statute). On appeal,
the parties appear to focus more on the second prong of the
statute. Our analysis is the same whether the application for
HSIP funds was submitted under the first prong or second prong
of the statute.




                                 10
Transportation v. Superior Court supports plaintiff’s claim that
the application here is not privileged under section 409.
       Plaintiff contends it impedes the search for truth to apply
the section 409 privilege to defendant’s application for federal
safety funding. The answer to this is that legislatures regularly
preclude disclosure of information in discovery or at trial to
achieve specific public policy goals. For example, Evidence Code
section 1151 makes privileged remedial measures, and
section 1157 makes privileged peer review records. It is not the
role of courts to decide that the search for truth in civil suits is
more important than the decision by Congress to make privileged
an application for federal safety funds. (See Cal. Law Rev. Com.
com., 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. § 910,
p. 216 [“Privileges are granted, however, for reasons of policy
unrelated to the reliability of the information involved. A
privilege is granted because it is considered more important to
keep certain information confidential than it is to require
disclosure of all the information relevant to the issues in a
pending proceeding.”].)
       c.    Waiver
       In the alternative, plaintiff maintains that even if the
application is privileged, defendant waived the privilege of
section 409 by placing the application in issue as a defense.
Plaintiff contends defendant put the application in issue by
offering evidence that it received federal funding to improve the
safety of the intersection, and compliance with federal
requirements took time, such that a traffic signal had not been
installed before plaintiff’s injury. Courts may find an implied
waiver in the interest of fundamental fairness when the party
claiming a privilege has placed a communication in issue that
goes to the heart of the claim in controversy. (See, e.g., Mitchell




                                 11
v. Superior Court (1984) 37 Cal.3d 591, 604.) We recognize this
general proposition, but we do not find it applies in this case.
       Plaintiff also argues defendant may not use the privilege to
shield evidence from coming before the jury—the statement in
the application that the intersection was hazardous—while also
using it as a sword—the affirmative defense that efforts were
underway to improve the safety of the intersection. We also
agree with the general proposition that the law does not permit a
party to use a confidentiality privilege as both a shield and a
sword, but we disagree that is what defendant did in this case.
       Defendant did not offer any evidence about the contents of
the application for federal funding. The reasons defendant gave
the federal government in support of its application for funds
were not implicated by defendant’s assertion of the affirmative
defense that it took reasonable steps to protect against the risk of
injury. Defendant offered evidence it learned in June 2008 it
would receive federal funding for a traffic signal at the
intersection, and extensive evidence describing the different
phases of the signal project requiring federal and Caltrans
approval, each step of which had to be completed before the
signal could be installed, so the signal could not be activated until
March 2013, five months after plaintiff was injured. This
evidence was relevant to prove the Government Code
section 835.4, subdivision (b), affirmative defense to plaintiff’s
theory that defendant had notice of a dangerous condition and
failed to take adequate protective measures.
       The court instructed the jury with CACI No. 1112 as
follows: “A public entity is not responsible for harm caused by a
dangerous condition if its failure to take sufficient steps to
protect against the risk of injury was reasonable. If the City of
Los Angeles proves that its conduct was reasonable, then your




                                 12
verdict must be for the City of Los Angeles. [¶] In determining
whether the City of Los Angeles’s conduct was reasonable, you
must consider how much time and opportunity it had to take
action. You must also weigh the likelihood and the seriousness of
the potential injury against the practicality and cost of protecting
against the risk of injury.”
      Plaintiff does not contend the court erred by giving this
instruction and we find the instruction is a correct statement of
the affirmative defense. (Metcalf v. County of San Joaquin (2008)
42 Cal.4th 1121, 1138 [“The reasonableness standard referred to
in [Government Code] section 835.4 differs from the
reasonableness standard that applies under sections 830 and 835
and ordinary tort principles. Under the latter principles, the
reasonableness of the defendant’s conduct does not depend upon
the existence of other, conflicting claims on the defendant’s
resources or the political barriers to acting in a reasonable
manner. But, as the California Law Revision Commission
recognized, public entities may also defend against liability on
the basis that, because of financial or political constraints, the
public entity may not be able to accomplish what reasonably
would be expected of a private entity.”].)
      Plaintiff cites no authority for the proposition that when a
government entity asserts the Government Code section 835.4,
subdivision (b), affirmative defense, that entity has impliedly
waived the section 409 privilege, and we cannot think of any
reason why that should be the law.
2.    The Misconduct Claim
      Plaintiff next argues defense counsel committed
misconduct during trial. We are not persuaded.




                                13
      a.      Opening statement, questioning of witnesses
              and objections
       Plaintiff contends defense counsel’s misconduct was
pervasive, beginning with improper argument during opening
statement, disregard of court rulings, speaking objections and
argumentative questions.
       The alleged misconduct during opening statement consists
of a few admonitions by the court to refrain from argument. For
example, at one point defense counsel told the jury that plaintiff
had testified in deposition that she did not see the car. Counsel
then said, “you’re going to have to figure out how you get out
30 feet into an intersection and not see . . . .” Plaintiff objected
before counsel finished the sentence. The court told defense
counsel to just outline what she believed the evidence would show
without argument. A similar admonition was given later when
defense counsel discussed plaintiff’s expert.
       The court also sustained several of plaintiff’s objections
that defense counsel asked argumentative questions of plaintiff’s
witnesses, primarily her expert. At various points during the
trial, the court admonished defense counsel to refrain from
making speaking objections. On the other hand, the record
contains several instances where plaintiff’s counsel also asked
argumentative questions and the court sustained defense
counsel’s objections.
       None of these instances, whether judged individually or
cumulatively, can be characterized as misconduct. Some
argumentative questions and speaking objections are routine
occurrences during the course of any trial.
       “ ‘No form of civil trial error justifies reversal and retrial,
with its attendant expense and possible loss of witnesses, where




                                 14
in light of the entire record, there was no actual prejudice to the
appealing party.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 801 (Cassim).) The trial court instructed the jury both at the
conclusion of opening statements and during final instructions
that nothing the attorneys argue or ask in a question is evidence
(CACI No. 106, No. 5002). Plaintiff has not shown any prejudice
arising from these acts.
       b.     Closing argument
       The balance of plaintiff’s misconduct claim concerns
comments made by defense counsel during closing argument. “In
conducting closing argument, attorneys for both sides have wide
latitude to discuss the case. ‘ “ ‘ “The right of counsel to discuss
the merits of a case, both as to the law and facts, is very wide,
and he has the right to state fully his views as to what the
evidence shows, and as to the conclusions to be fairly drawn
therefrom.” ’ ” ’ ” (Cassim, supra, 33 Cal.4th at p. 795.)
       Plaintiff contends defense counsel misrepresented her
discovery responses and made arguments to the jury that were
not supported by any evidence. Defense counsel argued that
plaintiff was “a driver’s worst nightmare, because I submit, ladies
and gentlemen, that the evidence is, she was on her cell phone.
Counsel said there’s no evidence of that. Well, let me show you
what we have. We have an interrogatory that we read into
evidence.” Counsel then paraphrased plaintiff’s response instead
of reading it verbatim.
       Plaintiff did not object, and instead chose to discuss the
issue during the rebuttal portion of closing argument. Plaintiff’s
counsel argued the “cellphone issue” was “utter speculation” and
reminded the jury that plaintiff had testified in her deposition
that her phone had been in her backpack and that the police had




                                15
not recovered any cell phone at the scene. Because plaintiff did
not object in the trial court, she has forfeited the contention on
appeal that the defense argument was misconduct. (Cassim,
supra, 33 Cal.4th at pp. 794-795 [in order to preserve for appeal
an instance of misconduct before the jury, “ ‘an objection must
have been lodged at trial’ ” and the party must “ ‘move for a
mistrial or seek a curative admonition’ ”].)
       Plaintiff also argues defense counsel improperly
commented upon plaintiff’s nonappearance at trial. Once again,
plaintiff failed to object to this argument or seek a curative
instruction and has therefore forfeited the contention. (Cassim,
supra, 33 Cal.4th at pp. 794-795.)
      Finally, plaintiff contends defense counsel tried to mislead
the jury by arguing a dictionary definition of substantial factor
instead of the legal definition set forth in the jury instructions.
Defense counsel told the jury she wanted to explain the phrase
“substantial factor” and then said “according to Merriam
Webster’s Dictionary,” “substantial” means “important or
essential.” Plaintiff objected. At a sidebar conference, the court
told defense counsel to make her argument without reference to a
dictionary definition. When counsel resumed her argument to
the jury, she said it “means a heck of a lot.” Plaintiff did not
raise another objection.
      Following closing arguments, the court instructed the jury,
including with CACI No. 430, the instruction defining substantial
factor. The court also told the jury that if the attorneys said or
argued anything about the law that differed from the court’s
instructions, the jury was required to follow the court’s
instructions and disregard counsel’s contrary comments
(CACI No. 5000).




                                16
       The next morning, plaintiff raised the issue anew, arguing
that when defense counsel resumed her argument she still did
not use the legal definition of substantial factor and therefore
likely confused the jury. Before the jury was sent to the jury
room to begin deliberations, the court reinstructed the jury with
CACI No. 430 on the legal definition of substantial factor.
       There was no misconduct, and the potential jury confusion
was cured by the court’s thorough instructions to the jury.
                          DISPOSITION
       The judgment entered in favor of defendant and respondent
City of Los Angeles is affirmed. City of Los Angeles shall recover
its costs of appeal.

                              GRIMES, Acting P. J.

            WE CONCUR:



                              STRATTON, J.




                              WILEY, J.




                                17
