Filed 8/11/16 Mercado v. Calif. Dept. of Transportation CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


LOURDES MERCADO et al.,
         Plaintiffs and Respondents,
                                                                     A142173
v.
CALIFORNIA DEPARTMENT OF                                             (Alameda County
TRANSPORTATION,                                                      Super. Ct. No. HG09486029)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         In 2008, Victor Mercado was killed in a vehicle accident on the Interstate 880 (I-
880) freeway. Mercado’s wife and heirs (plaintiffs) sued the California Department of
Transportation (Caltrans) for maintaining a dangerous condition of public property.
(Govt. Code, § 835.)1 After a jury returned its verdict in favor of Caltrans, the trial court
granted plaintiffs a new trial on the grounds that they were prejudiced by an
“[i]rregularity in the proceedings” and an “[a]ccident or surprise, which ordinary
prudence could not have guarded against.” (Code Civ. Proc., § 657, subds. (1), (3).) On
appeal, Caltrans contends that the trial court abused its discretion by granting plaintiffs a
new trial. We affirm the order on the ground of a prejudicial accident or surprise, and
thus do not consider the other basis for the trial court’s ruling.


         1
             Unless otherwise specified, statutory references are to the Government Code.


                                                             1
                                              II.
                                STATEMENT OF FACTS
        On the morning of June 26, 2008, Mercado was driving a Mack tractor-trailer
Waste Management truck on I-880 in San Leandro, at an approximate speed of 55 miles
per hour. That stretch of highway consists of eight lanes, with a concrete barrier dividing
the north and southbound traffic. Mercado was traveling southbound in the third lane
from the center divide. At the same time, Hiram Torres was driving his Toyota Corolla
in the first southbound lane, which was the closest to the concrete divider. Torres lost
control of his vehicle when its left rear tire suffered a blowout. He swerved into
Mercado’s lane, hitting the front left axle of Mercado’s tractor. The impact sent
Mercado’s vehicle off course, across two lanes of traffic and into the concrete barrier.
        The parties disagree about whether Mercado’s truck rode up the barrier or crashed
through the base of the wall. In either event, the median broke and Mercado’s vehicle
crashed into northbound traffic, setting off a series of collisions, a fire and an explosion.
Mercado and another man died. An autopsy showed that Mercado survived the impact of
the collisions with the barrier and the other vehicles, but he died from injuries caused by
the fire.
                                             III.
                       PERTINENT PROCEDURAL HISTORY
        The procedural history of this case is long and sometimes confusing. Our
summary highlights the events that are directly relevant to this appeal.
        A. The Pleadings
        In November 2009, plaintiffs filed a complaint for damages for the wrongful death
of Mercado. Two causes of action in the complaint alleged negligence-based claims




                                              2
against Caltrans for creating and maintaining a dangerous and defective condition of the
roadway in violation of section 835.2
       Section 835 states: “Except as provided by statute, a public entity is liable for
injury caused by a dangerous condition of its property 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, that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) 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 (b) The public entity had
actual or constructive notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against the dangerous
condition.”
       The term “dangerous condition” is defined in section 830, subdivision (a) (section
830(a)), which states: “ ‘Dangerous condition’ means 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.”
       Plaintiffs’ causes of actions for violating section 835 were supported by
allegations that Caltrans negligently created and maintained a dangerous and defective
condition on the I-880 freeway which exposed drivers to an unreasonable risk of harm.
“In particular,” plaintiffs alleged, Caltrans designed and maintained the center divider at
this location on the highway so that it did not serve its intended function of “redirect[ing]
vehicles contacting the divider back into the vehicle’s proper lane of travel.” Instead,
plaintiffs alleged, the barrier “functioned as a launching ramp and served to catapult the
Mack truck being driven by [Mercado] airborne so that it crashed on top of the divider

       2
           Plaintiffs also alleged causes of action for negligence against Torres, and strict
liability and breach of warranty against the manufacturer and seller of the tire on Torres’s
car. In the summer of 2011, plaintiffs settled their claim against Torres, and voluntarily
dismissed the other defendants except for Caltrans.


                                                3
and went over the divider and through the divider and entered the northbound lane(s) of
the roadway.”
       According to the complaint, the “failure” of the center divider to redirect Mercado
back into his direction of traffic, and to keep Mercado’s vehicle on the southbound side
of the highway, along with the debris that “spewed forcefully from the divider when it
broke apart upon impact,” caused or contributed to the collision between Mercado’s truck
and the northbound vehicles, which caused or contributed to the resultant explosion and
fire, “all of which caused and/or contributed to the death of plaintiffs’ loved one.”
       In January 2010, Caltrans filed an answer to the complaint in which it denied
“each and every, all and singular, generally and specifically the allegations against it
contained therein.” Caltrans also alleged 17 affirmative defenses. The fourth affirmative
defense, which is directly pertinent to this appeal, stated: “The alleged condition of the
property did not constitute a dangerous condition as it did not pose a substantial risk of
injury, and, if there was any risk involved, it was merely a minor, trivial, or insignificant
risk, and therefore the State is not liable for the alleged injuries and damages, pursuant to
Government Code § 830.2.”
       Section 830.2 states: “A condition is not a dangerous condition within the
meaning of this chapter if the trial or appellate court, viewing the evidence most
favorably to the plaintiff, determines as a matter of law that the risk created by the
condition was of such a minor, trivial or insignificant nature in view of the surrounding
circumstances that no reasonable person would conclude that the condition created a
substantial risk of injury when such property or adjacent property was used with due care
in a manner in which it was reasonably foreseeable that it would be used.”
       B. Discovery
              1. 2010
       Plaintiffs propounded form interrogatories, including Form Interrogatory No. 15.1,
which requested that Caltrans provide certain information with respect to each material
allegation in the complaint that Caltrans denied and each affirmative defense that
Caltrans alleged in its answer. Specifically, plaintiffs sought to discover what facts,


                                              4
witnesses and documents Caltrans intended to use to support each of its denials and each
of its affirmative defenses.
       In a September 2010 response to Form Interrogatory No. 15.1, Caltrans stated:
“Defendant State of California objects to this interrogatory on the grounds that it seeks
information protected by the attorney-work product doctrine and the attorney-client
privilege.” Caltrans did not provide a privilege log or any explanation as to why the
requested information was privileged.
              2. 2012
       On June 4, 2012, Caltrans provided another response to Form Interrogatory
No. 15.1, which stated: “This defendant has asserted affirmative defenses available to it
under the provisions of the applicable statutory and case law in order to preserve its right
to do so. Until discovery is completed, this defendant cannot specifically produce any
and all documents that support such affirmative defenses other than to state that the
documents that will be produced in Defendant State of California’s Response to
Plaintiff’s Production Demand, Set One, the complaint [sic] support this defendant’s
affirmative defenses as set forth in the Answer to the Complaint.”
       Plaintiffs made more than one attempt to meet and confer regarding Caltrans’s
response to this form interrogatory. A Caltrans attorney who addressed the matter in a
June 21, 2012 letter stated: “With regard to Response to Form Interrogatory 15.1: The
State is relieved from the burden of examining and summarizing documents to answer
this interrogatory under [Code of Civil Procedure] Section 2030.230. We have
sufficiently answered this interrogatory by specifying the document from which the
answers may be derived or ascertained.” (Italics omitted.) The following week, the issue
was addressed at a deposition. This time the Caltrans attorney agreed, on the record, to
provide a supplemental response identifying documents and witnesses, but “with the
caveat that it may be supplemented or amended at a later date, because we haven’t
completed discovery.”
       On June 29, 2012, Caltrans provided a supplemental response to Form
Interrogatory No. 15.1, which stated: “This defendant has asserted affirmative defenses


                                             5
available to it under the provisions of the applicable statutory and case law in order to
preserve its right to do so. Until discovery is completed, this defendant cannot
specifically produce any and all documents that support such affirmative defenses other
than to state that the documents that have been produced in Defendant State of
California’s Response to Plaintiff’s Production Demand, Set One, the state pmk [person
most knowledgeable] depositions, the CHP traffic collision report, as well as the
Plaintiffs’ complaint support this defendant’s First, Second, Fifth, Eighth, Ninth, Tenth,
Eleventh, Fourteenth, and Seventeenth affirmative defenses as set forth in the Answer to
the Complaint. This defendant withdraw[s] the Third, Fourth, Sixth, Seventh, Twelfth,
Fifteenth and Sixteenth Affirmative Defenses as set forth in its Answer to the Plaintiff’s
Complaint, without prejudice in the event the plaintiffs introduce evidence at trial that
would be applicable to support such withdrawn affirmative defenses.” (Italics added.)
As noted, Caltrans’s fourth affirmative defense alleged that its property was not a
dangerous condition because “it did not pose a substantial risk of injury” and if there was
any risk, it was “minor, trivial, or insignificant.”
       On July 2, 2012, Caltrans provided responses to a set of special interrogatories,
one of which requested the disclosure of facts, documents and witnesses in support of its
affirmative defenses. With the caveat that discovery was continuing, Caltrans stated that
it could not “specifically state all the facts” supporting its affirmative defenses other than
to state that its response to plaintiffs’ demand for the production of documents, the
complaint, the traffic report, and the depositions of Torres and other witnesses “support
this defendant’s affirmative defenses that allege the public property was not in a
dangerous condition on the date of the subject accident.” Caltrans then stated: “In
addition, this [d]efendant will not present documents, witnesses to support the
contentions in the following Affirmative Defenses as alleged in its Answer to Plaintiff’s
Complaint: [¶] The Third and Fourth Affirmative Defense. . . .”
       On July 12, 2012, plaintiffs filed a motion to compel further discovery responses
with respect to defenses and affirmative defenses that Caltrans continued to assert. At
that point, the trial was scheduled to begin the following month, on August 6. In


                                               6
opposing the motion to compel, Caltrans reiterated that it had withdrawn eight of its
affirmative defenses, argued that its response with respect to each “remaining”
affirmative defense was appropriate, and maintained that it had already “produced all
responsive documents in its power to produce.”
       The trial court granted plaintiffs’ motion to compel further discovery responses
and ordered Caltrans to pay monetary sanctions. Nevertheless, discovery disputes
persisted, necessitating a continuance of the original trial date for several months, until
January 2013.
       C. Pretrial Rulings
               1. 2012
       On August 1, 2012, before the original trial date was continued, the court heard
what turned out to be a first round of motions in limine. One of plaintiffs’ motions
sought to exclude evidence, testimony or any reference to affirmative defenses that
Caltrans abandoned or withdrew during discovery. Plaintiffs argued that Caltrans should
be bound by its discovery responses in accordance with policies designed to prevent
surprise and gamesmanship. Plaintiffs supported their motion with a declaration from
counsel who stated that he had prepared plaintiffs’ case in reliance on representations
from Caltrans that it had abandoned specified affirmative defenses.
       Caltrans opposed this motion on the ground that evidence relevant to the
withdrawn affirmative defenses was also relevant to affirmative defenses that Caltrans
had not abandoned including, for example, its defense that if there was a dangerous
condition, it was created by a “reasonable act” that absolved Caltrans of liability. (See
§ 835.4.) Caltrans also argued that its decision to withdraw certain affirmative defenses
was made “without prejudice in the event that the Plaintiffs[] introduce evidence at trial
that would be applicable to support such withdrawn affirmative defenses.” Finally,
Caltrans argued that it had “agreed” to withdraw certain affirmative defenses in order to
expedite the trial, and it would be “fundamentally unfair” to “penalize[]” the state for “its
efforts to streamline the trial in this case.”



                                                 7
       At the hearing on in limine motions, the court made a prefatory general
observation that motions which did not pertain to specific evidence were not conducive to
a pretrial ruling, and would likely be denied without prejudice to raise the issue again
during trial. The court explained that it could not make rulings in a vacuum, although it
understood that plaintiffs were just trying to protect themselves “against being
sandbagged at trial.” With respect to the specific motion to exclude evidence pertaining
to abandoned affirmative defenses, the court found that the motion was too vague,
crediting the defense theory that evidence relevant to an abandoned affirmative offense
could also be relevant to a disputed issue. Thus, the court found that it could not make a
ruling on this motion unless or until it was asked to consider specific evidence. In the
meantime, however, the court assured plaintiffs that it would not “instruct obviously on
an affirmative defense that’s been withdrawn.”
       At the August 2012 pretrial hearing, the court also made some preliminary rulings
regarding jury instructions. For example, Caltrans proposed giving CACI No. 1123,
which sets forth the elements of the affirmative defense of design immunity. (See
§ 830.6.) Plaintiffs objected on the ground that design immunity was one of the
affirmative defenses that Caltrans had withdrawn. Caltrans countered by explaining that
when it agreed to plaintiffs’ request to withdraw this affirmative defense, it had not yet
completed discovery which showed that plaintiffs intended to present evidence of a
design defect. The court rejected this explanation, stating: “[T]hat misstates it. They
didn’t want you to withdraw it. They wanted you to produce the evidence in support of
it. . . . What you did in writing was withdraw that defense.” In light of that fact, the trial
court ruled that the design immunity instruction would not be given.
              2. 2013
       In January 2013, shortly before the rescheduled trial was set to commence, the
court conducted a hearing on two motions in limine by Caltrans to preclude plaintiffs
from introducing evidence of other accidents on the ground they were not sufficiently
similar to Mercado’s accident. Plaintiffs argued that similarity was not a requirement
because the sheer volume of accidents in that location went to the disputed issues of


                                              8
notice and forseeability. The court rejected this argument and ruled that plaintiffs could
not introduce statistical evidence regarding dissimilar accidents on that stretch of
highway. However, the court denied Caltrans’s request to exclude evidence of an
accident that occurred on Interstate 80 that was similar to Mercado’s accident on the I-
880.
       D. Denial of Defense Motion For Summary Judgment
       The January 2013 trial date was vacated for reasons unrelated to this appeal and
the trial was postponed until the following year. Meanwhile, in September 2013,
Caltrans filed a motion for summary judgment in which it argued, among other things,
that it was not liable for damages resulting from Mercado’s death because the condition
of its property created only a minor, trivial, or insignificant risk of harm. In their
opposition, plaintiffs argued that Caltrans waived this issue by withdrawing its fourth
affirmative defense during the discovery phase of the litigation.
       In a December 2013 order, the trial court found that Caltrans was not entitled to
summary judgment on the ground that the risk of injury created by the property was only
trivial or insignificant for two independent reasons. First, the court agreed with plaintiffs
that “Caltrans has waived its defense on this ground in its discovery responses by
refusing to provide discovery responses based on its assertion that it would not be
providing any evidence in support of this defense.” Second, the court found that, even if
it were to reach the merits of this issue, it would find that Caltrans failed to establish that
the risk of harm was minor, trivial or insignificant as a matter of law.
       E. Trial Proceedings
              1. Trial Theories
       The jury trial finally commenced on January 13, 2014. In his opening statement,
plaintiffs’ counsel outlined the theory that Caltrans made modifications to the concrete
barrier which made the freeway dangerous to users and that the dangerous condition was
a cause of Mercado’s death because his truck would not have travelled into the
northbound traffic if the barrier had performed its intended function.



                                               9
       In her opening statement, counsel for Caltrans stated that the sole issue was
whether the location of the accident was a dangerous condition of public property on the
date that the accident occurred. Defense counsel stated when a public entity is involved,
the pertinent statute defines a dangerous condition as “a piece of property that poses a
substantial risk of injury when it’s used carefully.” Counsel further stated the evidence
would show that the roadway did not meet this definition; that the accident was caused by
Mr. Torres and his flat tire; and that nobody anticipated that Caltrans could prevent an
80,000-pound big rig from breaking through a concrete median under these
circumstances.
              2. Evidence Dispute Regarding Withdrawn Affirmative Defenses
       As its final trial witness, Caltrans called James Jeffery, a forensic traffic engineer
who had been designated as a defense expert on the subject of the construction of the
roadway where the accident occurred. Outside the presence of the jury, plaintiffs
objected to any testimony by Jeffery on the subject of design immunity because Caltrans
had waived this affirmative defense, and the court already ruled that it would not give a
design immunity jury instruction.
       Caltrans took the position that it had a right to argue design immunity for three
reasons. First, counsel stated that the only reason her client withdrew the issue was
because of a problem it had responding to plaintiffs’ document production requests. But,
that problem was subsequently resolved and the pertinent documents had been produced
to plaintiffs. Second, since Jeffery was deposed, plaintiffs had notice of his opinions.
Third, Jeffery was a proper rebuttal witness because plaintiffs offered evidence that the
concrete wall was poorly designed.
       After further discussion of the matter, the court ruled that it would not permit
Caltrans to resurrect a defense it had previously withdrawn, but that Caltrans could elicit
testimony from Jeffery to rebut plaintiffs’ evidence that the relevant portion of the
concrete barrier was dangerous and defective because Caltrans had modified it with a cap
feature that was subsequently disapproved by its own engineers.



                                              10
       Caltrans persisted, arguing that although the legal defense of design immunity may
have been withdrawn, the factual question whether Caltrans took action which caused it
to lose its design immunity was a question for the jury to decide. Plaintiffs objected
again, reiterating that Caltrans had pleaded a design immunity affirmative defense but
then withdrew it. Therefore, plaintiffs had not “developed any of the evidence really on
this . . . because it wasn’t at issue in the case.” According to plaintiffs’ counsel, “[t]he
whole case has been tried without design immunity being an issue.”
       Deciding to “probe” the issue further, the court queried whether design immunity
was actually an affirmative defense, explaining: “Well, that’s important to the Court,
because as I look at some of these so-called ‘affirmative defenses’ that the—that Caltrans
said it was waiving, I had some questions whether some of them were actually
affirmative defenses.” As an example, the court referenced the fourth affirmative defense
which pertained to the issue whether the property created only a minor or trivial risk of
injury. The court stated that it did not understand why Caltrans had made this issue the
subject of an affirmative defense when it was plaintiffs who had to prove that the risk
created by the condition was not minor or trivial. The court explained this issue was
important because it would be error for the court to remove elements from the case that
plaintiffs were required to prove, and it was plaintiffs’ burden to prove a substantial risk
of injury. Plaintiffs’ counsel disagreed that this was a concern, reasoning that if a
defendant elects to admit an element of a claim, then a plaintiff does not have to prove
that element at trial.
       After further discussion, everyone appeared to agree that design immunity was an
affirmative defense. The court found that Caltrans had “expressly withdrawn” the issue
of design immunity and that “it reeks of sand bagging to not put in writing . . . that you
intend to resurrect this.” The court also found that Caltrans made the representation that
it was not going to rely on this defense “because” it “wasn’t going to respond to any
discovery on this.” At the same time, however, plaintiffs had presented evidence to
support their theory that the location of the accident was a dangerous condition because
Caltrans modified that part of the concrete divider by using a “cap” to raise the height of


                                              11
the wall which undermined its effectiveness as a barrier. Therefore, the court ruled that
Caltrans could elicit testimony from Jeffery about the modification and its effectiveness,
but he could not make any reference to the abandoned design immunity defense.
              3. Jury Instructions
       After the close of evidence, during a hearing about jury instructions, the discussion
turned to CACI No. 1102, which pertains to the definition of a dangerous condition under
section 830(a). CACI No. 1102 states:
       “A ‘dangerous condition’ is a condition of public property that creates a
substantial risk of injury to members of the general public when the property [or adjacent
property] is used with reasonable care and in a reasonably foreseeable manner. A
condition that creates only a minor risk of injury is not a dangerous condition. [Whether
the property is in a dangerous condition is to be determined without regard to whether
[[name of plaintiff]/ [or] [name of third party]] exercised or failed to exercise reasonable
care in [his/her] use of the property.]”
       At the hearing, plaintiffs requested that the court modify CACI No. 1102 to delete
the following sentence: “A condition that creates only a minor risk of injury is not a
dangerous condition.” Caltrans objected that plaintiffs had the burden of proving this
element of the statutory definition. Plaintiffs responded that Caltrans waived this issue
by withdrawing its fourth affirmative defense. Plaintiffs reminded the court that when
they requested a disclosure of all witnesses and evidence that the condition created only a
minor risk of injury, the defense conceded the issue so they would not have to give
plaintiffs any information.
       The trial court repeated its earlier concern (discussed above) that the fourth
affirmative defense was not really an affirmative defense, but part of the definition of a
dangerous condition which plaintiffs had to prove. Plaintiffs’ counsel agreed that the
issue did not need to be characterized as an affirmative defense, but he argued that the
issue was nevertheless waived because “during discovery they took the position that they
weren’t going to give us any evidence or make the claim that this was a trivial matter.”



                                             12
       After further discussion, the court made the following ruling: “Well, I’m not going
to alter this instruction. It’s going in its entirety. It’s part of what the plaintiffs must
prove here. You can argue all you want that they didn’t show that this was a minor risk
of injury, but it’s your burden and you have to prove it and the jury needs to know [that]
you have to prove it, so 1102 will go in. . . . [¶] Okay, I think it would be reversible
error for the Court to do anything else.”
               4. Closing Arguments
       During his closing argument, plaintiffs’ counsel began with the dangerous
condition requirement, arguing that the concrete barrier created a dangerous condition
because its purpose was to prevent southbound vehicles from entering the northbound
traffic and it failed to serve that function. Plaintiffs’ counsel also addressed numerous
other issues, including that the risk of harm was foreseeable because big rigs use this road
all the time; the failure of the safety device was a cause of injury; Caltrans failed to test
the strength of the barrier; and Caltrans knew that the cap rail that was added to the top of
the wall had a tendency to break apart on impact. Plaintiffs’ counsel also spent
significant time discussing damages, the amount of which was a subject of extensive
dispute at trial.
       During her closing argument, counsel for Caltrans focused exclusively on the
plaintiffs’ burden of proving that a dangerous condition was a cause of injury. Counsel
emphasized that “dangerous condition” has a very specific meaning in this context
because the law limits the state’s exposure to liability for accidents on public property,
and she urged the jury to find that the location of this accident was not a dangerous
condition because it did not pose a substantial risk of harm when used carefully. Instead,
counsel argued, the trial evidence established that there was only an “infinitesimal” risk
of injury to drivers on this stretch of highway. To support this claim, defense counsel
used a large board to perform a mathematical calculation that compared the high volume
of traffic to the low volume of accidents over a 10-year period and concluded that the
percentage of people getting into accidents at this location was only .000123 percent.



                                               13
       Defense counsel argued further that the state did not have an obligation to create a
barrier that would prevent any accident and, in any event, this accident was caused by
Torres. She characterized evidence regarding a modification that Caltrans made to the
barrier as irrelevant because that modification did not change the fact that there was only
an “infinitesimal risk” of an injury at this location and therefore the public was not
exposed to a substantial risk of injury. Thus, defense counsel argued, the only conclusion
supported by the trial evidence was that this location did not pose a substantial risk of
injury when used with reasonable care.
              5. Jury Verdict
       The jury was given a three-page special verdict form which began with the
question: “Was the property in a dangerous condition at the time of the incident?”
Subsequent questions asked about forseeability, notice, whether the conduct of Caltrans
employees was reasonable and other related issues. The jury found that the property was
not in a dangerous condition at the time of the accident, and thus did not answer any of
the other questions on the special verdict form.
       F. The New Trial Order
       On April 21, 2014, the trial court granted plaintiffs’ motion for a new trial
pursuant to Code of Civil Procedure section 657 (CCP section 657), finding that:
“Plaintiffs have shown that they were deprived of a fair trial by irregularity in the
proceedings of the court, and that their substantial rights were materially affected by
accident or surprise, which ordinary prudence could not have guarded against.”
       In reaching these conclusions, the court acknowledged that the issue of a “trivial
risk” is embraced within the dangerous condition element of a section 835 claim.
However in this case, the court found, plaintiffs could “reasonably believe that this issue
was not disputed based on Caltrans’s waiver of the Fourth Affirmative Defense coupled
with its representations that it would not present witnesses or documents to support the
contentions in the Fourth Affirmative Defense and that no discovery would be provided
on the issue of trivial defect.”



                                             14
       Furthermore, the court found that plaintiffs’ understanding of the extent of the
waiver was reinforced by the summary judgment ruling in which the court affirmed
plaintiffs’ contention that Caltrans had waived its defense that the condition of the
property created only a minor, trivial or insignificant risk. Thus, the court concluded,
“Plaintiffs could reasonably construe Caltrans’s responses to discovery, and the court’s
ruling on the effect of those responses, as establishing that the issue of trivial risk had
been waived and was not at issue.”
       Finally the court found that plaintiffs had demonstrated they were prejudiced, both
with respect to their preparation for trial and in their ability to present evidence to the jury
because Caltrans (1) did not produce discovery responsive to the issue of a trivial defect
and (2) induced plaintiffs to believe that this issue was waived. The court reasoned that
plaintiffs were entitled to know what evidence Caltrans intended to introduce on this
issue, and to prepare their case accordingly. The court also credited a declaration from
plaintiffs’ counsel outlining concrete steps he would have taken had he known the issue
was not waived. For example, plaintiffs decided not to offer evidence of a similar
accident that occurred on Interstate 80 because they did not want to risk “opening the
door” to the issue of trivial risk. Furthermore, if plaintiffs had known this issue was not
waived, they would have sought additional pertinent discovery from Caltrans and
presented evidence to specifically rebut the calculation that defense counsel performed
during closing argument to persuade the jury that the risk of injury was infinitesimal.
                                              III.
                                       DISCUSSION
       A. Legal Principles and Standard of Review
       The “ ‘right to a new trial is purely statutory, and a motion for a new trial can be
granted only on one of the grounds enumerated in the statute.’ [Citation.]” (Wall Street
Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193.)
       Here, as noted in our introduction, one of the bases for the trial court’s order was
the third ground enumerated in CCP section 657, which states, in part: “The verdict may
be vacated and any other decision may be modified or vacated, in whole or in part, and a


                                              15
new or further trial granted on all or part of the issues, on the application of the party
aggrieved, for any of the following causes, materially affecting the substantial rights of
such party: [¶] . . . 3. Accident or surprise, which ordinary prudence could not have
guarded against. . . .” When a new trial is afforded because of an accident or surprise,
“[t]he surprise must have detrimentally impacted the party moving for a new trial, but the
movant must not have been able to prevent or guard against it by ordinary prudence.
[Citation.]” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 305.)
       CCP section 657 states that “[w]hen a new trial is granted, on all or part of the
issues, the court shall specify the ground or grounds upon which it is granted and the
court’s reason or reasons for granting the new trial upon each ground stated.” In this case
Caltrans does not dispute that the trial court complied with this statutory requirement.
Therefore, “the appropriate standard of judicial review is one that defers to the trial
court’s resolution of conflicts in the evidence and inquires only whether the court’s
decision was an abuse of discretion. [Citations.]” (Oakland Raiders v. National Football
League (2007) 41 Cal.4th 624, 636; see also Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 159.)
       Under this standard, the trial court’s ruling “will not be disturbed unless a manifest
and unmistakable abuse of discretion clearly appears. This is particularly true when the
discretion is exercised in favor of awarding a new trial, for this action does not finally
dispose of the matter. So long as a reasonable or even fairly debatable justification under
the law is shown for the order granting the new trial, the order will not be set aside.
[Citations.]” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) “Moreover,
our review for abuse of discretion extends to all aspects of the trial court’s order granting
a new trial, including the trial court’s prejudice ruling. [Citations.] (Whitlock v. Foster
Wheeler, LLC, supra, 160 Cal.App.4th at p. 160.)
       B. The Trial Court Did Not Abuse Its Discretion
       As our summary of the procedural history reflects, the new trial order is supported
by evidence that Caltrans adopted a litigation strategy which led plaintiffs to reasonably,
but mistakenly, believe that Caltrans did not dispute that the risk of injury at the location


                                              16
of the accident was substantial. That strategy included decisions to (1) allege as a fourth
affirmative defense that the risk of injury was not substantial, and that if there was any
risk, it was trivial; (2) withdraw the contentions asserted in this fourth affirmative defense
in order to avoid a legal obligation to respond to discovery; and then (3) use the exact
same contentions as the keystone of its defense case at trial. The record supports a
finding that both plaintiffs and the trial court were actually, and reasonably, surprised and
misled by those decisions.
       Caltrans has never explained why it alleged the absence of a substantial risk of
injury as an affirmative defense. However, the record does show that the reason it
withdrew that defense was to avoid having to respond to proper requests for discovery.
“ ‘The discovery laws in California are designed to expedite the trial of civil matters by
(1) enabling counsel to more quickly and thoroughly obtain evidence and evidentiary
leads, and thus to more quickly and effectively prepare for trial, and (2) enabling counsel
to ‘set at rest’ issues that are not genuinely disputed. [Citations.]’ [Citation.] A party
may be required to disclose whether or not he will press an issue in the case. [Citation.]”
(Campain v. Safeway Stores, Inc. (1972) 29 Cal.App.3d 362, 366 (Campain).) Here, as
the trial court found, Caltrans’s discovery responses were reasonably interpreted by
plaintiffs as a disclosure that it would not press the issue of substantial risk of injury.
       Campain, supra, 29 Cal.App.3d 362 is instructive. In that personal injury action
against Safeway, plaintiff provided discovery responses in which she indicated that she
was not making any claim for loss of wages as a result of the accident. (Id. at p. 365.)
Later, plaintiff was allowed to amend her complaint to allege additional damages that
were previously unseen, but neither her motion papers nor counsel’s argument made any
references to lost wages. However, at trial plaintiff offered evidence regarding her
“prospective employment at the time of the accident and her plans for future
employment.” (Ibid.) Initially, the trial court sustained Safeway’s objection that loss of
earnings and future earnings were no longer issues in the case, but it subsequently
reversed its ruling and admitted the evidence. The jury returned a verdict for plaintiff,



                                               17
but the appellate court reversed the judgment and remanded the case for a new trial on the
issues of damages.
       The Campain court found that “Safeway acted reasonably in relying on pretrial
discovery in the preparation of its case for trial,” and that plaintiff “had apparently ‘set at
rest’ the issue of loss of earnings and future earnings.” (Campain, supra, 29 Cal.App.3d
at p. 366.) The court also found that Safeway suffered prejudice because plaintiff
effectively used the evidence on this subject in her final argument to the jury on the
amount of damages. Because Safeway was genuinely surprised and thus unprepared to
dispute the plaintiff’s claim for loss of earnings and future earnings, it was prejudiced in
its defense of the case at trial. Thus, the court concluded that Safeway was entitled to
“further discovery and a new trial.” (Ibid.)
       The present case is the mirror image and materially indistinguishable from the
situation that occurred in Campain, supra, 29 Cal.App.3d 362. Here, plaintiffs acted
reasonably by relying on pretrial discovery in which defendant Caltrans appeared to set to
rest the issue of substantial risk. As a result, plaintiffs understandably had not prepared
to prove this issue affirmatively at trial. As a result, plaintiffs were not only genuinely
surprised when Caltrans resurrected the issue at trial, they were prejudiced because
Caltrans made substantial risk the focus of their case notwithstanding that plaintiffs
reasonably believed the issue had been waived.
       Caltrans argues that any belief by plaintiffs that the defense had conceded the
issue of substantial risk “would have been patently unreasonable” because Caltrans
“fervently contested the issue from beginning to end.” To support this claim, Caltrans
offers a summary of the procedural history of this case that is not only misleading but that
literally ignores the actions Caltrans took which formed the basis for the ruling that
plaintiffs were entitled to a new trial.
       Furthermore, the question whether plaintiffs were reasonably and genuinely
surprised by the events that unfolded at trial depended, in large part, on percipient
observations only the trial judge could make. “In such situations, ‘[e]ven the most
comprehensive study of a trial court record cannot replace the immediacy of being


                                               18
present at the trial, watching and hearing as the evidence unfolds.’ [Citation.]” (McCoy
v. Pacific Maritime Assn., supra, 216 Cal.App.4th at pp. 305-306.) Here, the record
supports the trial court’s discretionary ruling that the litigation strategy employed by
Caltrans created an irregularity in the proceedings which resulted in unfair surprise and
prejudiced plaintiffs in their ability to present their case to the jury.
       C. The Order is Not Based on Legal Error
       Caltrans contends that the trial court abused its discretion because its ruling was
based on an error of law. (Citing Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th
1194, 1199-1200 (Neal).) According to Caltrans, the trial court committed legal error by
conflating sections 830(a) and 830.2, and failing to understand their distinct functions.
       Caltrans’s contention that the trial court “ignored the meaningful distinction and
harmony between sections 830(a) and 830.2” is difficult to decipher. To the extent
Caltrans is arguing that these statutes are meant to be read together, we agree. Section
830(a) defines a dangerous condition as one that “creates a substantial (as distinguished
from a minor, trivial or insignificant) risk of injury” when used with due care and in a
reasonably foreseeable manner. Section 830.2 amplifies this statutory definition by
providing that a condition is not a dangerous condition under section 830(a) when a
judicial determination can be made as a matter of law that the risk created by the
condition is “of such a minor, trivial or insignificant nature . . . that no reasonable person
would conclude that the condition created a substantial risk of injury.”
       When read together, these provisions clarify that there are cases in which the
determination whether a risk poses a substantial risk of injury can be made as a matter of
law. As stated in the Law Revision Commission Comments accompanying section
830.2, this rule “merely declares the rule that would be applied in any event when a court
rules upon the sufficiency of the evidence” to support a dangerous condition finding. In
this case, sufficiency of the evidence had nothing to do with the new trial order. Nothing
in that order suggests that the trial court misunderstood the relationship between these
statutes.



                                               19
          Caltrans intimates that the trial court misapplied these two statutes by concluding
that a trivial risk within the meaning of section 830.2 is synonymous with a
nonsubstantial risk under section 830(a).3 According to Caltrans, the concepts are not
synonymous because the law in dangerous condition cases establishes a “sliding scale”
for assessing whether a risk of injury exposes the state to potential liability, with trivial
risk near the bottom and substantial risk toward the top. Thus, Caltrans posits, even when
a court cannot make a determination that a risk is trivial under section 830.2, “it does not
follow that the risk necessarily rises to the level of ‘substantial,’ or that a plaintiff is
absolved from having to prove that element.”
          Caltrans misapprehends the new trial order. Caltrans is correct that a defendant’s
failure to prove that a risk of injury is trivial as a matter of law does not necessarily
constitute a concession that the risk was substantial. But that is not the situation that
resulted in a new trial order in this case. Here Caltrans filed a fourth affirmative defense
in which it explicitly alleged that the condition of the highway “did not pose a substantial
risk of injury, and, if there was any risk involved, it was merely a minor, trivial, or
insignificant risk.” (Italics added.) Later, Caltrans withdrew this defense for the purpose
of avoiding having to respond to discovery and pursuant to an express representation that
it would not present documents or witnesses “to support the contentions” in this
withdrawn affirmative defense. It was this litigation conduct, not any failure to prove
trivial risk as a matter of law, which led to the decision to order a new trial.
          Thus, in granting plaintiffs a new trial, the trial court did not make any substantive
ruling about whether a concession that a risk is not trivial is equivalent to a concession
that a risk is substantial. Instead, the court granted plaintiffs a new trial based on
evidence that Caltrans engaged in conduct which led plaintiffs to reasonably believe that
Caltrans did not dispute that the location of the accident created a substantial risk of
injury.

          3
           In their opening brief on appeal, Caltrans argues that the trial court “construed
‘trivial’ and ‘substantial’ risk as synonymous.” We assume that Caltrans means to say is
the court treated “trivial” and “not substantial” as synonymous concepts.


                                                20
       In order to obtain a reversal of a new trial order because of a legal error, Caltrans
would have to show that the trial court based its order “ ‘exclusively upon an erroneous
concept of legal principles applicable to the cause . . . .’ [Citation.]” (Neal, supra, 7
Cal.App.4th at pp. 1199-1120.) In this case, the new trial order was not based
exclusively on the substantive law pertaining to substantial risks of injury. Rather, the
trial court granted plaintiffs a new trial because of a surprise, which plaintiffs could not
have reasonably guarded against, that resulted from tactical decisions by Caltrans during
the pleading and discovery phases of this litigation.
       D. Prejudice
       Caltrans argues that even if there is evidence of accident or surprise, the trial court
was “enjoined” from granting plaintiffs a new trial because there was no prejudice. To
support this claim, Caltrans argues (1) it already produced all relevant discovery
regarding substantial risk; (2) plaintiffs introduced evidence on this issue at trial; (3) to
the extent plaintiffs had additional evidence they did not offer, that was their choice, and
(4) “it was error for the trial court to reward [plaintiffs] for choosing to forego that
evidence and speculate on a favorable verdict instead.”
       Putting aside the fact there is no way for us to determine whether Caltrans has
already produced all evidence relevant the issue of substantial risk, its representation to
that effect is beside the point. The record confirms that Caltrans refused to provide
coherent responses to discovery requests about this specific issue. Plaintiffs were entitled
to those answers in order to prepare for trial. By withdrawing contentions that it
previously made in its fourth affirmative defense for the specific purpose of avoiding a
discovery obligation and then using those exact contentions as the basis for its defense at
trial, Caltrans not only misled plaintiffs about its own trial strategy, it prevented them
from preparing and presenting their best case to the jury.
       Second, whether evidence that was elicited at trial was relevant to the substantial
risk issue is also beside the point. As Caltrans itself repeatedly argued in the lower court,
evidence regarding the condition of this concrete barrier was relevant to more than one
issue. The point here is that plaintiffs did not have a fair opportunity to show how the


                                              21
evidence that was introduced at trial supported its theory that the risk of harm was
substantial because it reasonably believed that Caltrans would not dispute that issue.
       Finally, we disagree with Caltrans that the trial court rewarded plaintiffs, or that
plaintiffs made an informed “choice” not to introduce relevant evidence like, for
example, evidence of the similar big rig accident that occurred on the Interstate 80
freeway. As discussed in our procedural summary, Caltrans repeatedly warned plaintiffs
that it would resurrect issues that it had conceded “without prejudice” if plaintiffs opened
the door by raising those issues at trial. The record supports the conclusion that the threat
of reintroducing issues thought by plaintiffs to have been conceded materially inhibited
their presentation of evidence at trial. Thus, plaintiffs’ so-called choice about how to
handle the substantial risk issue was inextricably intertwined with its reasonable though
mistaken belief that Caltrans would not dispute that issue at trial by arguing that the risk
of injury was trivial.
                                             IV.
                                      DISPOSITION
       The order granting plaintiffs a new trial is affirmed. Plaintiffs are awarded costs
on appeal.




                                             22
                                              _________________________
                                              RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




A142173, Mercado v. Calif. Dept. of Transportation



                                         23
