	

Filed 4/8/14

                                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                            SECOND APPELLATE DISTRICT

                                                           DIVISION SIX



HUMBERTO MARTINEZ et al.,                                                  2d Civil No. B244776
                                                                          (Super. Ct. No. 56-2008-
     Plaintiffs and Appellants,                                           00327795-CU-PO-SIM)
                                                                             (Ventura County)
v.

COUNTY OF VENTURA,

     Defendant and Respondent.




                           Humberto Martinez and his wife Liliana Ramirez sued
the County of Ventura for injuries Humberto1 suffered when his
motorcycle struck an asphalt berm abutting a raised drain on the
shoulder of a County-owned road. They contend the drain and asphalt
berm constituted a dangerous condition of public property that caused
Humberto's injuries. A jury agreed, but returned a defense verdict based on
the County's design immunity. Concluding that the evidence was



																																																								
1
 We refer to plaintiff Humberto Martinez by his first name where necessary to
distinguish him from the plaintiff group, which consists of Humberto and his
wife Liliana.

	
	


insufficient as a matter of law to support the jury's finding of design
immunity, we reverse.
                                 FACTS AND THE PROCEEDINGS BELOW
                           Humberto suffered paraplegic injuries when his motorcycle
struck an asphalt berm abutting a raised drain (the top-hat drain system) on
Box Canyon Road in Ventura County. The drain system was located on
the shoulder just off the traveled portion of the roadway. It is undisputed
that the County owned the property. The drain system consisted of a heavy
steel cover on three legs elevated eight to ten inches off the ground, with a
sloped asphalt berm to channel water into the drain.
                           Plaintiffs alleged that the top-hat drain system constituted a
dangerous condition of public property pursuant to Government Code
section 835.2 The County asserted numerous affirmative defenses,
including design immunity (§ 830.6), which is the subject of this appeal.
                           The case was tried to a jury. The County did not offer
evidence of any engineering design plans for the top-hat drain system. The
evidence showed that in 1990 the County Road Maintenance Division
converted existing side inlet drains on Box Canyon Road to the top-hat
design and that the top-hat drain system has been in common use since
then, based on its hydraulic efficiency and safety.
                           Loren Blair, who was the County's Road Maintenance
Engineer from 1983 to 1998, testified that he was "in charge in terms of
approving the modification of the drains from side inlets to the drain caps,"
and that, as the Road Maintenance Engineer, he had "probably" approved
the design of the drain. Blair's testimony was unrebutted.

																																																								
2
    All statutory references are to the Government Code.

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             Blair, who is not himself a licensed engineer, testified that the
top-hat drain system was not designed by a licensed engineer and that there
were no engineering design plans for the top-hat drain system. Nazar
Lalani, a former deputy director of the County's Department of
Transportation, testified that he was not aware of any scientific or
engineering analysis that was performed by the County for the top-hat
drain system. Raul Gallo, who manages the road maintenance division of
the County's Transportation Department, testified that the installation of the
top-hat drain systems was a maintenance project, for which formal plans
were not prepared. Loren Blair and other witnesses testified that the
County's road maintenance staff designed and built the top-hat drain
systems "in the field" in 1990. The drain system simply "evolved" based
on experience in the field.
             The jury found that the drain system was a dangerous
condition of public property that caused Humberto's injuries. However, it
rendered a verdict for the County based on design immunity. The trial
court entered judgment in favor of the County.
                                DISCUSSION
1. Standard of Review
             We review a claim of insufficient evidence to support a jury
verdict under the substantial evidence standard of review. (Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1188.) Substantial
evidence is not synonymous with "any" evidence. (DiMartino v. City of
Orinda (2000) 80 Cal.App.4th 329, 336.) Although the evidence is viewed
in the light most favorable to the judgment, "' . . . this does not mean we
must blindly seize any evidence in support of the respondent in order to



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affirm the judgment. . . .'" (Rogers v. County of Los Angeles (2011) 198
Cal.App.4th 480, 491.)
2. The Legislative Scheme: Dangerous Condition of Public Property and
Design Immunity
             Section 835, subdivision (b) provides that a public entity is
liable for injury proximately caused by a dangerous condition of its
property if the dangerous condition created a reasonably foreseeable risk of
the kind of injury sustained, and the public entity had actual or constructive
notice of the condition a sufficient time before the injury to have taken
preventative measures. A public entity may avoid liability for a proven
dangerous condition of its property by proving the affirmative defense of
"design immunity." (§ 830.6.)
             The purpose of design immunity "is to prevent a jury from
second-guessing the decision of a public entity by reviewing the
identical questions of risk that had previously been considered by the
government officers who adopted or approved the plan or design.
[Citations.]" (Cornette v. Department of Transportation (2001) 26
Cal.4th 63, 69 (Cornette). "'. . . [T]o permit reexamination in tort litigation
of particular discretionary decisions where reasonable men may differ as to
how the discretion should be exercised would create too great a danger of
impolitic interference with the freedom of decision-making by those public
officials in whom the function of making such decisions has been vested.'
[Citation.]" (Ibid.)
             To prove the defense of design immunity, a public entity must
establish three elements: (1) the entity's discretionary approval of the plan
or design prior to construction; (2) a causal relationship between the plan or
design and the accident; and (3) substantial evidence supporting the

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reasonableness of the plan or design. (Cornette, supra, 26 Cal.4th at
p. 69.)3
3. The "Discretionary Approval" Element of Design Immunity
                           Design immunity is an affirmative defense that the entity must
plead and prove. (Cornette, supra, 26 Cal.4th at p. 66.) An entity's "failure
to prove any of the enumerated ingredients is fatal to the applicability of
the defense. [Citations.]" (Mozzetti v. City of Brisbane (1977) 67
Cal.App.3d 565, 574.)
                           We focus on the discretionary approval element of design
immunity. To prove that element, the entity must show that the design was
approved "in advance" of the construction "by the legislative body of the
public entity or by some other body or employee exercising discretionary
authority to give such approval or where such plan or design is prepared in
conformity with standards previously so approved . . . ." (§ 830.6.)
"Approval . . . is a vital precondition of the design immunity." (Johnston v.
Yolo County (1969) 274 Cal.App.2d 46, 52 (Johnston).) Plaintiffs contend
that there was no evidence that the County exercised its discretion to


																																																								
3
  Section 830.6 provides in relevant part as follows: "Neither a public entity nor
a public employee is liable under this chapter for an injury caused by the plan or
design of a construction of, or an improvement to, public property where such
plan or design has been approved in advance of the construction or improvement
by the legislative body of the public entity or by some other body or employee
exercising discretionary authority to give such approval or where such plan or
design is prepared in conformity with standards previously so approved, if the
trial or appellate court determines that there is any substantial evidence upon the
basis of which (a) a reasonable public employee could have adopted the plan or
design or the standards therefore or (b) a reasonable legislative body or other
body or employee could have approved the plan or design or the standards
therefore."


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approve the top-hat drain system before the drains were installed in 1990.
We agree.
             We first consider plaintiffs' contention that there was no plan
or design for the top-hat drain system that existed before the drains were
constructed in 1990. The evidence supports this contention. Although
numerous witnesses described the top-hat drain system and identified it as
a standard system used in the county, the County introduced no evidence of
a design or plan for the drain system.
             The County contends, based on Thomson v. City of Glendale
(1976) 61 Cal.App.3d 378 (Thomson), that the absence of a formal
engineering design does not defeat design immunity. The County's
reliance on Thomson is misplaced. In Thomson, the plaintiff was injured
when she fell down a city-owned exterior staircase with a central handrail.
She contended that the design of the handrail caused her injuries. In
support of its design immunity defense, the City produced the original
design of the central handrail, a "shop drawing . . . ." (Id. at p. 385.) The
plaintiff complained that the shop drawing was inadequate to support
design immunity. The court disagreed: "There is no requirement that the
design be expressed in any particular form. The plan need only be
sufficiently explicit to assure that it is understandable to the employee
giving the approval." (Ibid.)
             Here, the evidence does not meet even the low standard set in
Thomson. The County introduced no design at all for the top-hat drain,
even something as simple as a shop drawing. The evidence showed that
the maintenance workers simply built and installed the drains in the field as
they saw the need for them. Whatever form the design is expressed in, it
must be "sufficiently explicit to assure that it is understandable to the

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employee giving the approval." (Thomson, supra, 61 Cal.App.3d at p.
385.) Because the County presented no evidence of any design, there was
no evidence of a design that anyone with authority to approve it could
approve.
             Even if we were to conclude that there was sufficient evidence
of a design for the top-hat drain system, plaintiffs contend that there was no
evidence that any design was approved in advance of construction by
someone exercising discretionary authority to give such approval on behalf
of the County. This contention also has merit.
             In many cases, the evidence of discretionary authority to
approve a design decision is clear, or even undisputed. For example, "[a]
detailed plan, drawn up by a competent engineering firm, and approved by
a city engineer in the exercise of his or her discretionary authority, is
persuasive evidence of the element of prior approval. [Citation.]" (Grenier
v. City of Irwindale (1997) 57 Cal.App.4th 931, 940; accord, Alvarez v.
State of California (1999) 79 Cal.App.4th 720, 734, Laabs v. City of
Victorville (2008) 163 Cal.App.4th 1242, 1263.) When the discretionary
approval issue is disputed, however, as it was here, we must determine
whether the person who approved the construction had the discretionary
authority to do so.
             "In the affairs of a public entity (e.g., a county, city or public
district) the locus of discretionary authority is fixed by law." (Johnston,
supra, 274 Cal.App.2d at p. 52.) Accordingly, we look to "the law fixing
the public entity's internal distribution of powers to discern whether the
legislative body or, alternatively, some administrative board or officer,
exercise[s] discretionary approval authority for the purpose of section
830.6." (Ibid.; see also Thomson, supra, 61 Cal.App.3d at p. 384

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[examining the Glendale City Charter and Municipal Code to determine
whether superintendent of maintenance had authority to approve
construction plans.].)
             The design at issue in Johnston was a double-curve
alteration project on a county road. When an accident occurred at the
curve, victims sued the County for dangerous condition of public property.
In considering the County's design immunity defense, the court located the
source of the County's discretionary authority in the Streets and Highways
Code, which "repos[es] direct administrative responsibility [for county
roads] in a county road commissioner." (Johnston, supra, 274 Cal.App.2d
at pp. 52-53, citing the Collier-Burns Highway Act of 1947.) "By force of
the Streets and Highways Code provisions, Yolo County's road
commissioner . . . was the public agent exercising discretionary authority to
approve the design of the double-curve alteration project . . . ." (Id. at p.
53.)
             The	County	acknowledges	that	the	Streets	and	Highways	
Code	is	the	legal	source	of	the	County's	discretionary	authority	to	
approve	the	drain	system.		Those provisions have not substantively
changed since 1969, when Johnston was decided. Accordingly, the
Ventura County Road Commissioner was the public agent who had
discretionary authority to approve the design of the drain system. The
County Road Commissioner did not testify at the trial. The County
presented no evidence that the Road Commissioner had approved the top-
hat design before the drain system conversion in 1990. We must, therefore,
determine whether any person or entity other than the County Road
Commissioner had discretionary authority to approve the top-hat drain
system for the purpose of section 830.6. To do so, we look to "the law

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fixing the public entity's internal distribution of powers . . . ." (Johnston,
supra, 274 Cal.App.2d at p. 52.)
             The County presented no evidence of its "internal distribution
of powers" to demonstrate that the Road Commissioner was empowered to
delegate the discretionary authority to some other body or person or that
the Commissioner in fact did so. Instead, the County relied entirely on the
testimony of Loren Blair, the retired County Road Maintenance Engineer,
to prove the discretionary approval element of its design immunity defense.
Blair testified that he approved the top-hat drain design in 1990, when the
County converted the side inlet drains to the top-hat design. The County
contends that Blair, as the County Maintenance Engineer, had discretionary
authority to approve the top-hat design. The evidence does not support this
contention. Blair did not testify that he had discretionary authority to
approve the design and his testimony that he did approve the design was
equivocal at best: he testified that, as the Road Maintenance Engineer at
the time of the drain conversion, he "was involved probably with the
approval of the installation, yes, sir." The County provided no evidence
that the Road Commissioner had delegated to Blair the discretionary
authority to approve drain design, either directly or indirectly. Without
such evidence, there was no evidence that Blair had the requisite
discretionary authority.
             The County contends that Blair's testimony that he approved
the design is substantial evidence of his discretionary authority because his
testimony was unrebutted. The contention is meritless. The locus of a
county's discretionary approval authority is fixed by law and with reference
to the County's internal distribution of its powers. (Johnston, supra, 274
Cal.App.2d at p. 52.) The County cites no authority for the proposition that

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the testimony of a highway maintenance supervisor that he "approved" the
design of the top-hat drain, even if the testimony is uncontradicted, is
substantial evidence of the discretionary approval element of design
immunity in the absence of evidence that such authority had been assigned
to him.
             The County also contends that it is entitled to design immunity
even in the absence of evidence of the discretionary approval required by
section 830.6 because the top-hat drain system was a maintenance project
for which formal plans are not prepared. For this contention, the County
again relies on Thomson, where the court concluded that a City
superintendent of maintenance exercised discretionary authority to approve
the design of the handrail claimed to be the cause of the plaintiff's injuries.
The County's reliance on Thomson is again misplaced. Thomson did not
abrogate the statutory requirement that the design be approved in advance
by someone exercising the discretionary authority to approve it. On the
contrary, the evidence presented in Thomson methodically traced the path
of discretionary authority from the original source, the Glendale City
Charter, to the superintendent of maintenance who approved the design.
(Thomson, supra, 61 Cal.App.3d at p. 384.) The evidence showed that the
City Charter charged the Public Works Department with maintenance of
city facilities. The Glendale Municipal Code empowered City officers to
delegate their powers to deputies. The Director of the Public Works
Department testified that he had delegated the responsibility for
maintaining City facilities to the superintendent of maintenance and that
the handrail was within the scope of that delegation. (Ibid.) Thomson thus
confirms that a public entity seeking design immunity must establish the



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discretionary approval element of the defense, even if the project is a
maintenance project for which formal plans are not customarily prepared.
             Finally, the County contends that the County's discretionary
approval of the top-hat drain system may be implied from the extensive
evidence of the system's consistent use based on its efficiency and safety.
At oral argument, the County's attorney insisted that the repeated use of the
design for 25 years evidenced the necessary discretionary approval. The
County offers no authority for its theory of "implied" discretionary
approval. We reject the theory, which would greatly expand the scope of
design immunity without any showing that the Legislature intended that
result.
             In the absence of design immunity, a public entity is liable for
reasonably foreseeable injuries proximately caused by a dangerous
condition of its property. (§ 835.) The Legislature created the design
immunity defense for an express purpose: to prevent the discretionary
design decisions of government officers vested with authority to make
those decisions from being second-guessed in litigation. (Cornette, supra,
26 Cal.3d at p. 69.) Design immunity thus protects only the "particular
discretionary decisions" of "'. . . those public officials in whom the function
of making such decisions has been vested.' [Citation.]" (Ibid.) For this
reason, the public entity claiming design immunity must prove that the
person or entity who made the decision is vested with the authority to do
so. Recognizing "implied" discretionary approval would vitiate this
requirement and provide public entities with a blanket release from liability
that finds no support in section 830.6.
             Here, as we have explained, there is no evidence that the
discretionary authority to approve the top-hat drain design, which the

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Streets and Highways Code reposed in the Ventura County Road
Commissioner, was ever delegated to Loren Blair or any other County
employee. In the absence of such evidence, the record does not support the
element of discretionary approval and the County's design immunity
defense fails. (Mozzetti v. City of Brisbane, supra, 67 Cal.App.3d at p. 574
[An entity's "failure to prove any of the enumerated ingredients is fatal to
the applicability of the defense"].)
                                                           DISPOSITION
                           The judgment in favor of the County is reversed. As a matter
of law, there is no design immunity. The jury's finding of a dangerous
condition of public property is binding on retrial. The matter is remanded
for retrial on issues not previously reached by the jury. Plaintiffs are
awarded costs on appeal.
                           CERTIFIED FOR PUBLICATION.




                                                                O'DONNELL, J.*


We concur:



                           GILBERT, P. J.



                           YEGAN, J.

																																																								
* (Judge of the Superior Court of Los Angeles County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)

                                                               12	
	


                           Charles R. McGrath, Judge

                       Superior Court County of Ventura
                      ______________________________


            Law Offices of Martin N. Buchanan, Martin N. Buchanan; Michael R.
Rhames & Associates, PC, Michael R. Rhames, Hugh Jeffrey Grant, William
Mackey for Plaintiffs and Appellants.
            Benton, Orr, Duval & Buckingham, Bruce Alan Finck, Donald R.
Wood for Defendant and Respondent.




	
