Filed 2/10/16 Cordova v. City of Los Angeles CA2/1
Opinion on remand
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


ANTONIO CORDOVA et al.,                                              B236195

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. Nos. BC442048,
         v.                                                          BC444004, BC443948)

CITY OF LOS ANGELES,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
William F. Fahey, Judge. Affirmed.
         Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi/Keese and
John A. Girardi for Plaintiffs and Appellants.
         Michael N. Feuer, City Attorney, James P. Clark, Chief Deputy City Attorney,
Thomas H. Peters, Chief Assistant City Attorney, Ronald S. Whitaker, Managing
Assistant City Attorney, Blithe Smith Bock and Sara Ugaz, Deputy City Attorneys, for
Defendant and Respondent.
                                             ——————————
       For the second time, we consider this appeal from the trial court’s grant of the City
of Los Angeles’s (City) motion for summary judgment in Antonio and Janis Cordova’s
(Cordovas) wrongful death action alleging certain City property, a magnolia tree, created
a dangerous condition and caused the deaths of their children. A public entity is liable
for injuries caused by public property only if the plaintiff satisfies the elements set forth
in Government Code sections 830 and 835.1 In granting summary judgment for the City,
the trial court held the Cordovas had not shown a triable issue of material fact on two
independent legal elements: (1) whether the magnolia tree created a dangerous condition
as defined by the governing statute; and (2) whether the allegedly dangerous condition
caused the deaths of the Cordovas’ children. In the previous appeal, this court affirmed
summary judgment on the issue of causation and did not reach the issue of whether the
magnolia tree created a dangerous condition of public property. The California Supreme
Court reversed, clarifying that causation under section 835 does not require a showing
that the allegedly dangerous condition caused certain third party conduct. Instead,
section 835 requires only that the dangerous condition proximately caused the injuries
sustained. The Supreme Court remanded the matter to this court with instructions that we
determine whether the Cordovas presented sufficient evidence to create a triable issue on
either causation or whether the magnolia tree created a dangerous condition. Considering
the element of whether the public property at issue is in a dangerous condition, we hold
that the Cordovas have not shown a triable issue of material fact and therefore we affirm
the trial court’s grant of summary judgment.
                                     BACKGROUND
I.     Governing statutory provisions




       1 All further statutory references are to the Government Code unless otherwise
indicated.


                                               2
       The Government Claims Act comprehensively defines “the liabilities and
immunities of public entities and public employees for torts.” (Kizer v. County of San
Mateo (1991) 53 Cal.3d 139, 145, italics omitted.) The Act does “not . . . expand the
rights of plaintiffs in suits against governmental entities, but . . . confine[s] potential
governmental liability to rigidly delineated circumstances.” (Metcalf v. County of San
Joaquin (2008) 42 Cal.4th 1121, 1129.)
       Sections 830 and 835, the provisions at issue in this case, delimit when a public
entity may be liable for injuries caused by a dangerous condition of public property. (See
Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Section 835 provides
that a public entity may be held liable for such injuries if the plaintiff establishes that “the
property was in a dangerous condition at the time of the injury,” that “the injury was
proximately caused by the dangerous condition,” and that “the dangerous condition
created a reasonably foreseeable risk of the kind of injury which was incurred.” In
addition, section 835 provides that the plaintiff must establish that either a “negligent or
wrongful act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition” or the “public entity had . . . notice of the
dangerous condition . . . a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.” Section 830 further defines “dangerous
condition” as “a condition of property that creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury when such property or adjacent property is
used with due care in a manner in which it is reasonably foreseeable that it will be used.”
II.    Facts of the case
       The tragic events in this case occurred on a segment of Colorado Boulevard in
Eagle Rock, a neighborhood in northeast Los Angeles. The pertinent section of Colorado
Boulevard runs through a quasi-residential mixed-use area and has three lanes of traffic
in both directions. A grassy center median with several large magnolia trees divides the
opposing lanes of traffic. The posted speed limit is only 35 miles per hour.
       A little before 10:30 p.m. on August 27, 2008, Cristyn Cordova (Cristyn),
daughter of the Cordovas, drove her 2006 Nissan Maxima with four passengers in the

                                                3
number one lane, the lane closest to the median, westbound on Colorado Boulevard,
approaching Hermosa Avenue. Cristyn’s four passengers were her sister Toni-Marie, her
brother Andrew, her boyfriend Carlos Campos, and her friend Jason Gomez.
       Next to Cristyn’s vehicle, Rostislav Shnayder (Shnayder) drove his 2004
Mitsubishi Eclipse in the same direction. The City’s accident reconstruction expert
estimated Shnayder’s speed at 66 miles per hour, almost twice as fast as the posted speed
limit. Further, the expert calculated Cristyn’s speed at 68 miles per hour.
       The cars collided when Shnayder veered into Cristyn’s car. Immediately,
Shnayder’s car moved right, and Cristyn’s car moved left. Her car spun out of control,
over the median curb, onto the median, and into a magnolia tree seven feet from the inner
edge of the number one lane of traffic. Cristyn and three of her four passengers (Toni-
Marie, Andrew Cordova, and Jason Gomez) died; the fourth passenger sustained serious
injuries.
       A jury later convicted Shnayder of vehicular manslaughter with ordinary
negligence.
III.   Procedural history
       The Cordovas filed this wrongful death action against the City. They alleged that
the magnolia tree created a “dangerous condition,” as defined in sections 830 and 835,
because it stood “too close to the travel portion of the roadway” thus causing the deaths
of their children.
       The City moved for summary judgment and objected to the evidence proffered by
the Cordovas in opposition to the City’s motion. Sustaining many of the City’s
evidentiary objections, the trial court entered summary judgment in favor of the City on
all grounds.
       Specifically, the City’s summary judgment motion asserted the absence of a triable
issue of fact on two independent legal elements: (1) whether the magnolia tree created a
dangerous condition as defined by the governing statute; and (2) whether the allegedly
dangerous condition caused the deaths of the Cordovas’ children. As to whether the
magnolia tree created a dangerous condition, the trial court concluded that it did not, for

                                             4
two reasons. First, while the roadway was safe when used in a reasonably foreseeable
manner, Cristyn and Shnayder had not used it in a reasonably foreseeable manner.
Second, before the accident, the tree itself was not damaged, deteriorated, defective, or
latently hazardous in any way. As to causation, the trial court held the third party
conduct of Shnayder, not the magnolia tree, caused the injuries sustained by the
Cordovas’ children.
       On appeal, the Cordovas asserted two errors by the trial court. As to its
determination that no dangerous condition existed, the trial court abused its discretion in
excluding the evidence proffered by the Cordovas. If that evidence had been admitted,
there would have been a triable issue of fact on the dangerous condition element.
Second, as to causation, the trial court erred in requiring the Cordovas to show the
magnolia tree caused the third party conduct of Shnayder. Instead, the Cordovas only
needed to show the magnolia tree caused the injuries.
       In our prior opinion, we affirmed summary judgment on the issue of causation
because we construed the statute as requiring a showing that the allegedly dangerous
condition caused the third party conduct and there was no triable issue of material fact on
that point. We did not reach the issue of whether the magnolia tree actually constituted a
dangerous condition as defined by the statute, because even if it did the plaintiffs would
still need to show that the allegedly dangerous condition, the magnolia tree, caused the
third party conduct.
       The California Supreme Court reversed, holding that causation under section 835
does not require a showing that the allegedly dangerous condition caused the third party
conduct. Instead, section 835 only requires that the dangerous condition proximately
caused the injuries. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1102–1103,
1106, 1111.) The Supreme Court did not reach the issue of whether the magnolia tree
created a dangerous condition. (Id. at pp. 1111–1112.) The Court remanded the matter
to this court with instructions that we determine whether the Cordovas presented
sufficient evidence to create a triable issue on either the element of causation or the
element of whether the magnolia tree created a dangerous condition. (Id. at p. 1111.)

                                              5
                                       DISCUSSION
       We affirm the trial court’s grant of summary judgment on the ground that there
was no triable issue of fact regarding whether the public property at issue is a dangerous
condition pursuant to sections 830 and 835. Further, our analysis of the dangerous
condition element confirms that the trial court did not abuse its discretion in excluding
the documentary evidence and expert opinions proffered by the Cordovas.
I.     The trial court erred in granting summary judgment on causation.
       The City’s summary judgment motion on the causation element relied entirely on
the legal principle that the Cordovas must show the dangerous condition caused the third
party conduct or negligence, not merely that the dangerous condition caused the injuries
sustained. The California Supreme Court rejected that legal principle, invalidating the
sole pillar of the City’s contention that there was no triable issue as to causation. (See
Cordova v. City of Los Angeles, supra, 61 Cal.4th at pp. 1102–1103, 1106, 1111.)
       As explained by the Supreme Court, “plaintiffs in this case must show that a
dangerous condition of property—that is, a condition that creates a substantial risk of
injury to the public—proximately caused the fatal injuries their decedents suffered as a
result of the collision with Shnayder’s car. But nothing in the statute requires plaintiffs to
show that the allegedly dangerous condition also caused the third party conduct that
precipitated the accident.” (Cordova v. City of Los Angeles, supra, 61 Cal.4th at
p. 1106.)
       The Supreme Court relied on the text of the statute as well as its prior opinion in
Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707. Sections 830 and 835 merely require that
“‘the injury was proximately caused by the dangerous condition’” and that the dangerous
condition of property “‘creates a substantial . . . risk of injury.’” (Cordova v. City of Los
Angeles, supra, 61 Cal.4th at p. 1106.) In Ducey, a third party’s vehicle crossed a median
and collided with the plaintiffs’ vehicle. The state defendant argued it could not be liable
when “‘the precipitating cause’” of the accident is a third party driver rather than the
alleged dangerous condition of property, the absence of a median barrier. (Id. at pp.
1106–1107.) The Supreme Court rejected that argument because the absence of a median

                                              6
barrier could be a dangerous condition even without the negligence of a third party. (Id.
at p. 1107.)
       For the reasons elucidated in the Supreme Court’s decision, the trial court erred in
granting summary judgment on causation. Thus, we proceed to analyze the alternative
ground on which the trial court granted the City’s summary judgment motion.
II.    Because the trial court did not abuse its discretion in excluding the evidence
proffered by the Cordovas, the trial court correctly granted summary judgment on
the dangerous condition element.
       The Cordovas’ appeal of summary judgment on the dangerous condition element
contends that the trial court abused its discretion in excluding six pieces of evidence,
which they proffered in opposition to the City’s summary judgment motion. The
Cordovas impliedly concede that without the disputed evidence, there is no triable issue
of fact on whether the magnolia tree created a dangerous condition. As explained below,
we hold the trial court did not abuse its discretion and instead properly fulfilled its role as
gatekeeper of expert opinion testimony and evidence.
       “Under California law, trial courts have a substantial ‘gatekeeping’
responsibility.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747, 769 (Sargon) [relying on Evid. Code, §§ 801 and 802].) Trial courts act as
gatekeepers to exclude expert opinion that is either speculative or not relevant. (Id. at p.
770.) An expert’s opinion cannot be based on speculation, conjecture, guess, surmise, or
assumptions of fact without evidentiary support. (Ibid.) Further, trial courts may inquire
into whether the expert opinion relies on material that actually supports the expert’s
reasoning. (Id. at p. 771.) “‘A court may conclude that there is simply too great an
analytical gap between the data and the opinion offered.’” (Ibid.) Trial courts may also
exclude expert opinion that is not sufficiently beyond common experience and thus
would not assist the trier of fact. (Id. at p. 769.) The trial court only abuses its discretion
when its evidentiary ruling is “‘so irrational and arbitrary that no reasonable person could
agree with it.’” (Id. at p. 773.)



                                               7
         To determine whether the evidence at issue is relevant, we look to the legal
standard that the Cordovas must prove. As defined by statute, a property is in a
dangerous condition when it “creates a substantial . . . risk of injury when such property .
. . is used with due care in a manner [that] is reasonably foreseeable.” (§ 830.) In other
words, did the location of the magnolia tree, specifically its distance from the roadway,
create a substantial risk of injury when the boulevard is used with due care in a manner
that is reasonably foreseeable? Having set the proper framework for our analysis, we
now review each of the trial court’s rulings excluding the evidence proffered by the
Cordovas.
         A.    1967 Highway Design and Operational Practices Related to Highway
Safety
         The trial court properly excluded the American Association of State Highway
Officials (AASHO)’s 1967 Highway Design and Operational Practices Related to
Highway Safety (AASHO 1967 Report or “the report”). This report applies to
controlled-access high-speed highways, as its title and the content indicate. A controlled-
access high-speed highway refers to the typical freeway with unhindered flow of traffic:
no traffic signals, intersections, property access, or pedestrians. AASHO created the
report in response to the Federal Highway Administrator’s proposal for “a special study
of the traffic and safety characteristics of the Interstate System and other highways.” The
majority of the 71-page text discusses such controlled-access high-speed highways
providing, for example, recommendations on entrance and exit ramps for highways.
Many images in the report display controlled-access high-speed highways.
         Further, the AASHO 1967 Report expressly excludes “conventional roads and
streets” from its discussion, that is, non-controlled-access low-speed urban streets. In a
short, separate section titled “Roadside Hazards on Conventional Roads and Streets,” the
report highlights the difference between the two roadway types and the problems in
applying its recommendations to the latter: “The Committee gave much consideration to
the problem of reducing roadside hazards on non-controlled access primary highways.
Recognizing the narrow right-of-way and existence of many utility poles, trees, and walls

                                              8
on both public and private property, it may well be that roadside obstructions on these
roads constitute a problem altogether different from that of higher type roads.”
       The collision that is the subject of this appeal did not occur on a controlled-access
high-speed highway. It occurred on a non-controlled-access low-speed urban street, that
is, an area with lower speed limits and more pedestrians, businesses, intersections, and
traffic signals. As mentioned previously, the neighborhood is a quasi-residential mixed-
use area, with businesses on Colorado Boulevard and residences directly behind them.
The speed limit is 35 miles per hour in this segment of Colorado Boulevard. Thus, the
report on controlled-access high-speed highways is not relevant to this case. The trial
court did not abuse its discretion in excluding this report.
       B.     1996 Roadside Design Guide
       The American Association of State Highway and Transportation Officials
(AASHTO)’s 1996 Roadside Design Guide (AASHTO 1996 Guide or “the guide”)
presents a closer question on relevance. Unlike the AASHO 1967 Report, the AASHTO
1996 Guide contains extensive discussion of non-controlled-access low-speed urban
streets. The guide dedicates a chapter to “Roadside Safety in Urban And/Or Restricted
Environments.” The chapter opens by explaining, “Generally, the principals [principles]
and guidelines for roadside design presented in all of the previous chapters of this Guide
discuss many roadside safety considerations for rural highways, where vehicle speeds are
on the high side (that is, approaching 80 km/h [or 50 miles per hour], and greater) and the
highway is operating under free-flow conditions. This chapter is intended to present the
designer with considerations to help enhance safety in urban and urban-like areas and
restricted or special situations.” The guide further defines urban areas as areas with
“lower speeds; dense abutting development; limited right-of-way; [and] closely spaced
intersections and access to properties.” According to the guide, restricted or special
situations include streets with “limited right-of-way, where pedestrians are present in
close proximity to the street, [or] the presence of . . . playgrounds or schools.”
       Nevertheless, the trial court did not abuse its discretion in excluding the guide.
The guide merely contains recommendations, not mandatory or legally binding safety

                                              9
standards. The Preface includes the following disclaimer: “A second noteworthy point is
that this document is a guide. It is not a standard or a design policy. It is intended for use
as a resource document from which individual highway agencies can develop standards
and policies.” The guide uses only discretionary language when discussing urban streets:
“The clear roadside concept is still the goal of the designer; however, this is often not
attainable and compromises may be necessary. . . . [¶] . . . [¶] . . . Since the conditions
and concerns may vary greatly from site to site, using standard approaches may not be the
most effective process. Designers should consider many alternatives to achieve a safe
and balanced design.” The City had no legal obligation to follow the suggestions in the
guide. The dangerous condition statute alone defines the City’s liability and the
applicable legal standard, which is whether the condition of the property creates a
substantial risk of injury when the public uses it with due care. The guide, however, does
not explain whether the magnolia tree in this case created a substantial risk of injury;
instead, it is merely a third party’s recommendation on the optimal conditions when
placing fixed objects next to urban streets generally. Because the guide has minimal
relevance to the controlling legal standard, the trial court acted within its discretion in
excluding it.
       C.       Declaration of Harry J. Krueper, Jr.
       The Cordovas offered the declaration of Harry J. Krueper, Jr. (Krueper), a civil
engineer and traffic engineer. Relying on the AASHO 1967 Report and the AASHTO
1996 Guide, Krueper opined that the magnolia tree stands too close to the roadway.
Relying on the California Highway Patrol’s (CHP) data on prior reported accidents, he
also noted that other accidents occurred on that roadway. Extrapolating from those two
opinions, Krueper concluded that the magnolia tree created a dangerous condition of
public property.
                1.    Krueper’s opinion relying on the AASHO 1967 Report and the
AASHTO 1996 Guide
       Krueper stated the following: “Dating back to 1967, a concept was developed by
the [AASHO] regarding protection from roadside obstacles. This included the need for

                                              10
recovery areas and where a potential impact exists, particularly with poles or trees, that
the potential severity be reduced by establishing a protective railing. This concept was
enhanced in many other evaluations, including [the AASHTO 1996 Guide], developed by
the newer organization known as the [AASHTO]. Their guide dealt with guardrail
placement and/or the removal of fixed objects in close proximity to the travel lanes of a
roadway.” At the end of his declaration, he concluded: “For the reasons outlined above,
it is the declarant’s opinion that the subject fixed object (tree) in the median of a
moderate- to high-speed roadway constitutes a dangerous condition of public property.
Penetration by a vehicle would result in serious injury or death if striking the large tree
positioned in the non-recoverable median area.”
       As discussed above, the AASHO 1967 Report and AASHTO 1996 Guide are not
relevant to the facts and conditions of this case and also do not define the applicable legal
standard here. “‘[I]rrelevant or speculative matters are not a proper basis for an expert’s
opinion.’” (Sargon, supra, 55 Cal.4th at p. 770.) Thus, the trial court did not abuse its
discretion in excluding Krueper’s expert opinion, because that opinion relied on the
appropriately excluded AASHO 1967 Report and AASHTO 1996 Guide.
       In any event, we note the location of the magnolia tree actually complies with the
recommendation in the AASHTO 1996 Guide. The magnolia tree stands seven feet from
the inner edge of the number one lane of traffic; the AASHTO 1996 Guide recommends
that trees be at least two to three meters (6.5 to 9.8 feet) away “from the edge of the
traveled way.”2 As seven feet is within the recommended range of 6.5 to 9.8 feet,
Krueper relies on material that does not support his reasoning. Our California Supreme
Court has emphasized, “a court may inquire into, not only the type of material on which
an expert relies, but also whether that material actually supports the expert’s reasoning”
and “‘may conclude that there is simply too great an analytical gap between the data and
the opinion proffered.’” (Sargon, supra, 55 Cal.4th at p. 771.) This incongruity

       2Both measure the distance from the magnolia tree to the portion of the road
where cars are traveling.


                                              11
constitutes an additional reason for upholding the trial court’s exclusion of Krueper’s
opinion.
              2.     Krueper’s summary chart and opinion relying on extrapolated
data from prior reported accidents occurring on Colorado Boulevard
       Citing the CHP’s data on prior reported accidents, Krueper created a summary
chart of the reported accidents and opined that the prior accidents made it foreseeable that
the accident in this case would occur. “Due to the large number of side-swipe accidents
on this section of highway, a concern existed for the protection of occupants in vehicles
from the fixed objects, which could result in potential fatalities and injuries. Information
from CHP traffic collision reports and the City’s access to their own records on the
history of the accidents in the subject area, affirms this roadway experiences moderate to
high speeds of vehicle movement. This has resulted in numerous out-of-control
accidents, as indicated in Exhibit ‘D.’ [the accident report summary at issue on appeal] It
was foreseeable that a catastrophic collision, such as this, would occur if appropriate
safety measures were not taken.” At the end of his declaration, he concluded that,
because of the reasons outlined in his declaration, the magnolia tree created a dangerous
condition of public property.
       The trial court correctly excluded Krueper’s accident report summary and his
opinion relying on it. The California Supreme Court has explained that an expert may
not base an opinion upon a comparison if the matters compared are not reasonably
comparable. (See Sargon, supra, 55 Cal.4th at p. 770). Further, strict standards govern
whether evidence of prior accidents is admissible to show a dangerous condition of
property. “It is well-settled that before evidence of previous accidents may be admitted
to prove the existence of a dangerous condition, it must first be shown that the conditions
under which the alleged previous accidents occurred were the same or substantially
similar to the one in question.” (Salas v. Department of Transportation (2011) 198
Cal.App.4th 1058, 1072.) The prior accidents must have a connection in some way with
the allegedly dangerous condition of the property. (Ibid.)



                                             12
       Here, Krueper relied on 32 reported side-swipe collisions along a .7 mile stretch
on Colorado Boulevard during the 11 years and 3 months between January 11, 1998 and
April 7, 2009.3 But Krueper made no comparison between the factual circumstances and
conditions of those accidents and the one here. The face of the accident summary
document alone reveals that more than half of the accidents involved a parked car, not
two moving cars as in this case. Further, Krueper failed to specify whether in any of the
other accidents a car entered the median or collided with one of the magnolia trees, as in
this case. Importantly, the alleged dangerous condition here is the magnolia tree, but
Krueper provides no indication that any of the other accidents involved something
similar.
       On appeal, the Cordovas effectively concede the lack of similarity. They argue it
is “irrelevant” whether the prior accidents are similar to the one here, as Krueper relied
on the data for the general principle that side-swipe accidents occur. Krueper next used
that general principle to support his opinion that cars being forced off the road and onto
the center median was foreseeable. Notably, Krueper’s declaration does not state that
any of the side-swipe accidents led to a car going off the road and onto the center median.
It would be merely speculative to conclude that any of the prior side-swipe accidents had
any connection to the alleged dangerous condition of the property, the magnolia tree.
There exists “‘too great an analytical gap between the data and the opinion proffered,’”
and the trial court did not abuse its discretion in excluding the accident report summary
and Krueper’s opinion relying on it. (See Sargon, supra, 55 Cal.4th at p. 771.)
       D.       Declaration of Kurt D. Weiss
       The Cordovas offered the declaration of a mechanical engineer and accident
reconstruction and restraint system expert, Kurt D. Weiss (Weiss). The trial court
excluded Weiss’s opinion relying on a 1979 Department of Transportation study to opine
on the general principle that drivers frequently strike trees. The trial court also excluded



       3   Daily traffic volume is approximately 32,500 vehicles.


                                               13
Weiss’s opinion that the 6-inch curb of the center median in this case is insufficient to
stop out-of-control vehicles thus creating a dangerous condition.
              1.      Weiss’s opinion relying on the 1979 U.S. Department of
Transportation study
       Weiss admits that the 1979 U.S. Department of Transportation study “describes
the search for cost-effective ways of reducing collisions on conventional state highways
in California” and that “this study pertains to conventional highways with speed limits
greater than that posted on Colorado Boulevard . . .” As is the case with his fellow expert
Krueper’s opinion relying on the AASHO 1967 Report and the AASHTO 1996 Guide,
Weiss’s opinion relying on a study of controlled-access high-speed highways is not
relevant to the facts of this case. Again, it is black-letter law that “‘irrelevant or
speculative matters are not a proper basis for an expert’s opinion.’” (Sargon, supra, 55
Cal.4th at p. 770.) Therefore, the trial court properly excluded Weiss’s opinion relying
on the 1979 U.S. Department of Transportation study.
       The Cordovas argue on appeal that Weiss merely relied on the study for the
general principle that drivers frequently strike trees. Weiss believed that the study was
relevant to address “the need to protect the driving public from impact with fixed
roadside objects.” A trial court can exclude expert opinion that would not assist the trier
of fact because it is not sufficiently beyond common experience. (See Sargon, supra, 55
Cal.4th at p. 769; Evid. Code, § 801.) It is common sense and common knowledge that
drivers frequently strike trees, and the Cordovas do not deny this reality. Weiss’s opinion
would not assist the trier of fact, and therefore the trial court did not abuse its discretion
in excluding that opinion.
              2.      Weiss’s opinion regarding the 6-inch median curb
       The trial court did not abuse its discretion in excluding both Weiss’s opinion that
the 6-inch curb of the center median is insufficient to stop out-of-control vehicles and his
subsequent opinion that this created a dangerous condition. Weiss opined that the 6-inch
curb “of the center medians of Colorado Boulevard” is “not sufficient to stop vehicles
with standard diameter passenger car tires” and “not expected to redirect out-of-control

                                               14
vehicles and prevent them from striking the large Magnolia trees.” “Without adequate
shielding, the 28 Magnolia trees present a significant collision danger for the motoring
public on Colorado Boulevard.”
       The Cordovas, however, have alleged only that the location of the magnolia tree—
too close to the travel portion of the roadway—created a dangerous condition. The
Cordovas have not alleged that the height of the curb created a dangerous condition.
Therefore, Weiss’s opinion on a theory that the Cordovas do not allege is not relevant to
the case here, and the trial court did not abuse its discretion in excluding it.
       E.      Declaration of Jacqueline G. Paver, Ph.D.
       The Cordovas offered the declaration of a biomechanical engineer, Jacqueline G.
Paver, Ph.D. (Paver), on “occupant injury potential” in various “scenarios” to show the
existence of a dangerous condition.
       The trial court did not abuse its discretion in excluding Paver’s opinion that if the
City had installed shrubs instead of a magnolia tree the injuries sustained would have
been minimal. Paver’s opinion is not relevant to the legal test here. The statute defines a
dangerous condition as the property’s condition “at the time of the injury.” (See § 835.)
The statute does not say that some hypothetical or preferable condition of the property
determines whether the property is in a dangerous condition. Logically, the City cannot
be liable based on what the condition of its property might have been. Instead, the
analysis concerns only the actual condition of the property at the time of the injury.
Thus, the trial court properly excluded Paver’s opinion that shrubs would have caused
less injury.
       The trial court also did not abuse its discretion in excluding Paver’s opinion “that a
lateral crash involving a 35 to 42 m.p.h. vehicle impact speed into a tree will, more likely
than not, result in a serious-to-fatal injury.” It is common sense and common knowledge
that colliding into trees at such speeds can lead to serious-to-fatal injuries. It would not
assist the trier of fact for Paver to opine that colliding into trees at such speeds can lead to
serious-to-fatal injuries, and the trial court did not abuse its discretion in excluding that
opinion. (See Sargon, supra, 55 Cal.4th at p. 769; Evid. Code, § 801.)

                                              15
                                  DISPOSITION
     We affirm the judgment. The parties are to bear their own costs on appeal.
     NOT TO BE PUBLISHED.


                                              JOHNSON, J.


We concur:


             ROTHSCHILD, P. J.


             CHANEY, J.




                                         16
