Filed 5/28/14 Aklikokou v. Department of Transportation CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


AUSMILA AKLIKOKOU et al.,

     Plaintiffs and Appellants,                                        G049336

         v.                                                            (Super. Ct. No. CIVSS 809400)

DEPARTMENT OF                                                          OPINION
TRANSPORTATION,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
John M. Pacheco, Judge. Affirmed in part and reversed in part.
                   Jeffrey S. Pop & Associates and Jeffrey S. Pop for Plaintiffs and
Appellants.
                   Ronald W. Beals, Linda Cohen Harrel and Mark A. Berkebile for
Defendant and Respondent.
                                    INTRODUCTION
              This appeal arises from a judgment entered after a trial in which the jury
found in favor of the California Department of Transportation (Caltrans) and against
Ausmila and Hansel Aklikokou (appellants) on public entity liability. Appellants alleged
their injuries – incurred when their father, Kokou Aklikokou, rolled the car in which they
were passengers – were caused by a dangerous condition of public property. By special
verdict, the jury found no dangerous condition existed.
              Before trial, the court granted Caltrans summary adjudication on several
alleged causes of the accident, on the ground of design immunity. As a result, appellants
could not present these issues to the jury. They argue on appeal that the motion for
summary adjudication was improperly granted, because there were triable issues of fact,
and that the presentation of their case to the jury was thereby “eviscerated.”
              We agree the trial court should not have granted Caltrans’ summary
adjudication motion on design immunity. The motion did not dispose of the entire cause
of action, as required by Code of Civil Procedure section 437c, subdivision (f)(1). There
were still aspects of the cause of action to be determined by the trier of fact. The order
granting summary adjudication must therefore be reversed.
              This does not, however, end the story. Although a trial court may not grant
summary adjudication in bits and pieces, it is required to determine what evidence should
be presented to the jury. In this case, the court – relying on the ruling on the motion for
summary adjudication – granted Caltrans’ motion in limine to exclude evidence that ran
counter to design immunity. In their opposition to the motion for summary adjudication,
the appellants had presented no evidence to support a triable issue of fact as to the first
two elements of design immunity. Because the third element was a question for the trial
court and because sufficient evidence supported the court’s decision, the motion in limine
was properly granted.


                                              2
                  Appellants also asserted that Caltrans had lost its design immunity. Taking
the existence of design immunity away from the jury did not prevent appellants from
offering evidence regarding the subsequent loss of design immunity, and, in fact, the
evidence of changed physical conditions on which they based this argument went to the
jury. The jury decided that the physical conditions were not dangerous. Appellants
therefore had their proper day in court, and we affirm the judgment.
                                                      FACTS
                  The accident that is the subject of this appeal took place on Interstate 40 in
                                                       1
the desert near Barstow during July 2007. Kokou Aklikokou was driving east in a
Chevrolet Lumina; appellants were asleep in the back seat. The car drifted into the left
lane and onto the left shoulder. Aklikokou then steered too far to the right, onto the right
shoulder. The car hit a drainage dike on the right side of the highway and became
airborne, landing on a slope (the embankment) and rolling over three times before
                                                                                                              2
coming to rest. Both appellants were seriously injured; Ausmila is a quadriplegic.
                  Appellants sued Caltrans, alleging a dangerous condition to public
property. Specifically they alleged Caltrans had failed to install a guardrail at the
accident site and had not reduced or minimized the slope of the embankment on the right
side. (The guardrail was necessary because of the steep slope of the embankment.) In
addition, Caltrans had not properly maintained the embankment in the years following
the road’s construction.
                  Caltrans moved for summary judgment in September 2009. The trial court
denied this motion because it was a motion for summary judgment, not summary
adjudication. As the court explained, it believed Caltrans had established design
immunity with respect to the absence of a guardrail. Because other components to the

         1
                   Interstate 40 in the area where the accident occurred runs east and west through desert terrain. It
has two lanes on each side, separated by a broad dirt median with native materials.
          2
                   Kokou Aklikokou later told the CHP officer investigating the accident at the scene that he was
feeling tired and believed he fell asleep.


                                                           3
accident had not been addressed, however, Caltrans’ evidence did not dispose of the
entire complaint. Therefore the court could not grant summary judgment.
                 Appellants filed an amended complaint in December 2010. To the previous
allegations, they added more detail about the dike on the side of the road, alleged to be
six inches above the roadway. In the absence of a guardrail, a car would collide with the
dike, would “trip” and become airborne, then land on the excessively steep slope of the
embankment and roll over.
                 Caltrans moved for summary judgment and for summary adjudication on
                                                                      3
design immunity in May 2011 before a different judge. The motion dealt with both the
guardrail and the dike issues of the new complaint. Appellants opposed the motion on
the grounds that (1) triable issues of fact existed as to design immunity and (2) Caltrans
had lost design immunity owing to changed conditions. The opposition also introduced
                                                                                          4
the lack of “shoulder backing” into the mix of causes for the accident.
                 In August 2011, the trial court denied Caltrans’ motion for summary
adjudication on the issues regarding the absence of shoulder backing and the maintenance
of the embankment. The court found triable issues of fact as to “whether this failure to
provide [shoulder backing] and maintain the embankment so a recovery area was present
created a dangerous condition.” The court granted Caltrans’ motion on the basis of
design immunity for the allegations regarding the absence of a guardrail, the original
design of the embankment, and the installation of the dike.
                 Appellants moved for reconsideration of the decision on summary
adjudication in August 2011. The court held a hearing in September on this motion,
during which counsel reargued portions of the summary adjudication motion. At the end

        3
                  Appellants have argued the court should not have entertained this motion, because Caltrans had
already moved for summary judgment, and the motion had been denied. Because we reverse the order on different
grounds, we do not address this argument.
         4
                  Shoulder backing is material, such as gravel, placed next to the asphalt between the edge of the
pavement and the point at which the embankment begins to slope downward. It provides a level recovery area in
case a vehicle runs off the road. It also supplies lateral support for the edge of the pavement.


                                                         4
of the hearing, the issues had been clarified – design immunity applied to the design
issues (the guardrail, the dike, the design of the embankment) but did not foreclose
appellants’ case on failure to maintain the slope of the embankment over the years such
that it became dangerously eroded. The court set November 7 as the trial date, later
continued to November 9.
                  Between the hearing in September and the trial date, the parties disputed
the wording of the summary adjudication order. The court held yet another hearing on
the scope of the summary adjudication motion just before trial, on October 31. The
parties continued to dispute the wording of the order even after October 31. As a result,
although the motion was granted in August, the court did not enter an order until
November 10, 2011, after the trial had started.
                  On the first day of trial, before voir dire began, appellants’ counsel
introduced a new wrinkle. Although the slope of the embankment on the road’s right side
had always been in the case and the lack of shoulder backing on the right side was an
issue at least as of the motion for summary adjudication, counsel now argued that lack of
shoulder backing on the left side of the road contributed to the accident. That is, the car
first drifted to the left across both lanes of traffic, dropped off the left shoulder (where
there should have been shoulder backing to prevent this), then over-corrected to the right
side, where it hit the dike (and where there was no recovery area), launched into the air
                                                         5
and rolled down the too-steep embankment. The argument carried over into the next
day’s hearing on the motions in limine, as the trial court considered Caltrans’ motion to
restrict expert testimony. The court ultimately allowed appellants’ experts to testify as to
this new aspect of causation, but restricted the evidence upon which the experts could
rely to what was available to them when their depositions were taken.


         5
                 Caltrans moved in limine to restrict expert testimony to the opinions given in their depositions,
which had been taken approximately a year before trial. Caltrans objected that it was unfair to introduce left-side
shoulder backing into the case “at the eleventh hour.”


                                                          5
                   The case went to the jury on two components of the allegedly dangerous
condition: whether Caltrans had failed to install shoulder backing as required by its plans
and whether Caltrans had failed to maintain the embankment, which had allegedly eroded
                   6
over the years. The jury found for Caltrans on a special verdict, answering “no” to the
first question: “Was the property in a dangerous condition at the time of the incident?” in
a nine-to-three vote. The court entered judgment on January 9, 2012.
                                                 DISCUSSION
I.                The Motion for Summary Judgment/Summary Adjudication
                  Code of Civil Procedure section 437c, subdivision (f)(1), provides: “A
party may move for summary adjudication as to one or more causes of action within an
action, one or more affirmative defenses, one or more claims for damages, or one or more
issues of duty, if that party contends that the cause of action has no merit or that there is
no affirmative defense thereto, or that there is no merit to an affirmative defense as to any
cause of action, or both, or that there is no merit to a claim for damages, as specified in
Section 3294 of the Civil Code, or that one or more defendants either owed or did not
owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be
granted only if it completely disposes of a cause of action, an affirmative defense, a claim
for damages, or an issue of duty.” (Italics added.) The statute does not authorize a
motion for summary adjudication on the ground that an affirmative defense has merit.
For a defendant seeking to validate an affirmative defense by summary adjudication, the
true basis of the motion must be that a cause of action has no merit because an
                                                            7
affirmative defense completely disposes of it. This may seem like two different ways of
stating the same thing. In this case, however, it was not.

         6
                   The parties stipulated that liability and causation, including comparative negligence, would be the
only issues tried in the first phase of the trial.
         7
                   As of January 1, 2012, Code of Civil Procedure section 437c, subdivision (s), permits parties to
seek summary adjudication of legal issues other than those specified in subdivision (f)(1) under certain conditions,
including a stipulation by the parties and an order from the trial judge. This procedure was, however, not available
when Caltrans filed its motion.


                                                          6
               The pleadings delimit the scope of the issues to be considered in evaluating
a motion for summary adjudication. (FPI Development, Inc. v. Nakashima (1991) 231
Cal.App.3d 367, 381.) The cause of action attacked in Caltrans’ motion for summary
adjudication was based on Government Code section 835, which provides: “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 [Government Code] Section 835.2 a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.” (See also People ex rel.
Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1485 [elements of
cause of action].) As our Supreme Court has explained, “Subdivisions (a) and (b) of
[Government Code] section 835 obviously address two different types of cases. . . .
[W]hat distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on account
of dangerous conditions created by the entity will be brought under subdivision (a). In
contrast, subdivision (b) can also support suits based on dangerous conditions not created
by the entity or its employees.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th
820, 836.)
              A public entity can avoid some kinds of liability for a dangerous condition
of public property by establishing design immunity, as set forth in Government Code




                                              7
                  8
section 830.6. Design immunity is an affirmative defense. (Cornette v. Department of
Transportation (2001) 26 Cal.4th 63, 69 (Cornette).)
                  In the second amended complaint, appellants identified the lack of a
guardrail, the failure to maintain the steep side slope, the design of the dike on the right
side of the road, and the lack of a recovery area immediately outside the right shoulder as
creating the dangerous condition of the highway. In their opposition to Caltrans’ motion,
appellants also raised the absence of shoulder backing as contributing to the dangerous
condition. All of these elements, according to the complaint, combined to produce the
accident. All were created by public employees within the scope of their employment.
                  The trial court denied summary judgment because it found triable issues of
fact as to whether Caltrans employees created a dangerous condition with respect to the
lack of shoulder backing and failure to maintain the embankment. The court granted
summary adjudication on the basis of design immunity, but only as to three components
of the dangerous condition – the lack of a guardrail, the installation of the dike, and the
original design of the embankment.



         8
                    Government Code section 830.6 provides: “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 therefor or (b) a reasonable legislative body
or other body or employee could have approved the plan or design or the standards therefor. Notwithstanding notice
that constructed or improved public property may no longer be in conformity with a plan or design or a standard
which reasonably could be approved by the legislative body or other body or employee, the immunity provided by
this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for
and carry out remedial work necessary to allow such public property to be in conformity with a plan or design
approved by the legislative body of the public entity or other body or employee, or with a plan or design in
conformity with a standard previously approved by such legislative body or other body or employee. In the event
that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient
funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to
provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the
approved standard. However, where a person fails to heed such warning or occupies public property despite such
warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by
the warning.”


                                                           8
                  Caltrans’ motion for summary adjudication did not “completely dispose[]”
of appellants’ cause of action for public entity liability. (See Code Civ. Proc., § 437c,
subd. (f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96 [cause of
action reflects separate theory of liability].) Appellants’ cause of action cannot be sliced
up into separate segments, because each alleged component could have contributed to the
accident. That is, the absence of shoulder backing and the lack of a guardrail could have
combined to cause appellants’ car to roll over. (Cf. Lilienthal & Fowler v. Superior
Court (1993) 12 Cal.App.4th 1848, 1854 [summary adjudication proper for one of two
separate and unrelated causes of action even though pleaded together].) The court should
not have granted Caltrans’ motion for summary adjudication while there were still
portions of the cause of action to be submitted to the trier of fact.
                      9
II.      The Trial
                  A. Design Immunity
                  Although the trial court could not pick and choose on a motion for
summary adjudication among components of the dangerous condition as alleged in
appellants’ complaint, it could decide at trial what evidence should go to the jury. A
ruling on a motion in limine is an efficient way to implement these decisions. (See Kelly
v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669-670.)
                  It is generally undesirable for a trial court to decide substantial questions of
law in motions in limine, if only because of the time constraints involved at the beginning


         9
                   Caltrans argued – rather shortsightedly – that appellants have appealed only from the ruling on the
motion for summary adjudication and therefore we cannot review anything other than that ruling. This argument is
incorrect. The notice of appeal states that the appeal is from a judgment after a jury trial. This notice is broad
enough to cover the nonappealable orders issued during the case. (See Gavin w. v. YMCA of Metropolitan Los
Angeles (2003) 106 Cal.App.4th 662, 668-669.) Appellants’ amended notice of appeal also identifies “judgment
after an order granting a summary judgment motion” as the basis of the appeal, but the court did not enter a
judgment after partially granting the summary adjudication motion. The amended notice of appeal is superfluous,
but does not affect the rest of the notice.
                   Appellants’ opening brief specifically referred to the motion in limine that restricted the evidence
they could present to the jury and the effect of the ruling on summary adjudication on the subsequent trial as issues
on appeal.


                                                          9
of a trial. Nevertheless, the court has the inherent power to do so. (Amtower v. Photon
Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595; see also Merenda v. Superior Court
(1992) 3 Cal.App.4th 1, 6 [damages issue improperly decided on summary adjudication
could have been properly reached on motion in limine], overruled on other grounds in
Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 103.) When a
motion in limine turns on a question of law rather than on evidentiary relevance or
prejudice, we review the court’s decision de novo. (Miller v. Campbell, Warburton,
Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1338.)
              In this case, design immunity had been thoroughly analyzed and discussed
as part of the motions for summary judgment and adjudication and the motion for
reconsideration. The trial court was in no danger of having to make an off-the-cuff ruling
on a new and unfamiliar subject. Likewise, there was no danger of appellants’ being
sandbagged by introducing a new issue right before trial.
              Caltrans made a motion in limine to exclude certain testimony about the
dangerous condition, i.e., the lack of the guardrail, the design of the dike, and the slope of
the embankment, citing the court’s prior ruling on the motion for summary adjudication.
Over appellants’ opposition, the court granted this motion. It ruled that appellants could
not identify any of the components of the accident as to which the court had already
granted summary adjudication as part of the dangerous condition, and they could not
mention these components as possible remedies for the dangerous condition that was still
in the case. For example, they could not suggest a guardrail as a possible remedy for the
allegedly eroded embankment.
              Appellants do not contest the exclusion of evidence relating to the original
design of the embankment, one of the three bases for the ruling on the motion for
summary adjudication. We therefore address the exclusion of evidence relating to the
design of the dike and the absence of a guardrail, to ascertain whether Caltrans was
entitled to design immunity as to these two components of the accident.

                                             10
              To establish design immunity, Caltrans must show (1) a causal connection
between the project design and the accident, (2) discretionary approval of the design
before construction, and (3) substantial evidence of the reasonableness of the design.
(See Alvarez v. State of California (1999) 79 Cal.App.4th 720, 727 (Alvarez).) In their
opposition to the motion for summary adjudication, appellants did not present any
evidence to dispute the first two elements of design immunity, and they did not produce
any additional evidence at the motion in limine stage to call these elements into question.
So at this point in the proceedings, the trial court had a single issue before it – the
reasonableness of the design – which the statute has identified as a question for the court.
(See Gov. Code, § 830.6) As to this element, the issue is not whether there could be a
difference of opinion as to the reasonableness of the design, but rather whether grounds
existed for a reasonable public official to approve it. (Higgins v. State of California
(1997) 54 Cal.App.4th 177, 185; Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931,
941).
              The issue before the trial court when considering the motion in limine was
therefore not whether there were any triable issues of fact, but rather whether any
substantial evidence supported adoption of the design by a reasonable employee. We
look at the evidence ourselves to determine whether substantial evidence supports the
reasonableness of the design. (See Ramirez v. City of Redondo Beach (1987) 192
Cal.App.3d 515-526.) “Typically, ‘any substantial evidence’ consists of expert opinion
as to the reasonableness of the design, or evidence of relevant design standards.” (Laabs
v. City of Victorville (2008) 163 Cal.App.4th 1242, 1267.)
              As to the first element, causation, Caltrans may rely on the allegations of
the complaint. (See Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550.)
Appellants unquestionably alleged that the design of the project – the design of the dike
and the absence of a guardrail – contributed to the accident. Accordingly, we consider



                                              11
whether Caltrans established the other two elements of design immunity as to the dike
and the guardrail.
                           1.       Design of the dike
                  The construction of Interstate 40 was approved in March 1971 and
completed two years later. The slope of the embankment was part of the original design.
                                                                                                          10
The portion of the roadway including the accident site was rehabilitated in 2003. As
part of the rehabilitation project, existing dikes, which control drainage, were replaced
                                       11
with Type E mountable dikes.
                  Appellants alleged that the dike was too high, so that the car “trip[ped]”
over it and was launched into air after leaving the road on the right side. This allegation
established the element of causation. The trial court therefore had to evaluate whether
Caltrans had shown discretionary approval of the dike and substantial evidence of the
reasonableness of the design.
                  Caltrans presented evidence, which appellants did not dispute, that the
rehabilitation plans were accepted by personnel with discretionary authority to approve
the plans. Caltrans also presented evidence of the reasonableness of the dike design.
Instead of attacking the design itself, appellants’ opposition focused on the lack of
shoulder support, which they maintained Caltrans had failed to install next to the dike in
2003. Whether Caltrans failed to follow the 2003 rehabilitation plans with respect to
shoulder support for the dike does not affect the original decision to replace the old dike
with the newer model. As appellants had no other argument or evidence, Caltrans
established the elements of design immunity for the dike.




         10
                  The slope of the embankment was not altered when the road was rehabilitated.
         11
                  A dike is a concrete channel installed at the side of the road to carry off water. A mountable dike
has a sloping front face, so that vehicles can cross it if they run off the road.


                                                         12
                                             2.        Absence of a guardrail
                     When Interstate 40 was constructed in 1973, there was no guardrail at the
accident site. The placement of the guardrails formed part of the original design. When
the road was rehabilitated in 2003, the plans included replacing guardrails and installing
additional ones. Caltrans installed a guardrail just east of where the Aklikokou car ran
                12
off the road. There was, however, no guardrail at the accident site itself.
                     As with the design of the dike, appellants do not dispute the approval
process. We therefore examine the record to see whether “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 therefor or (b) a reasonable legislative body or other
body or employee could have approved the plan or design or the standards therefor.”
(Gov. Code, § 830.6.)
                     Caltrans’ expert provided substantial evidence that the placement of the
guardrails conformed to the standards in place both in 1973 and in 2003. One of the
criteria for placement of a guardrail next to an embankment – and the most important
criterion – is that the consequences of hitting the guardrail are less severe than the
consequences of what the guardrail is there to prevent – going down the embankment or
                                                  13
hitting a fixed object on the other side. To determine which is likely to be worse where
an embankment is involved, Caltrans uses an equal severity slope, in which the steepness
of the slope and the height of the embankment are plotted together to locate them on one
side or the other of a curve. Roughly speaking, as the slope becomes steeper and/or the



         12
                  The purpose of the guardrail installed in 2003 was to prevent vehicles from dropping vertically
onto an underpass if they ran off the road at that spot.
          13
                  Hitting a guardrail is not a benign event. The impact itself can cause serious injury. Deflecting
the vehicle back onto the road and possibly into traffic may also cause an accident. (See Alvarez, supra, 79
Cal.App.4th at p. 724 [placing median barriers trades preventing cross-median accidents for impact and deflection
injuries].)


                                                         13
embankment becomes higher, the more likely it is that hitting the guardrail will be better
than going over the embankment.
                  Using the equal severity slopes for both 1973 and 2003, Caltrans’ expert
presented evidence that given the slope and height of the embankment at the accident
                                                                                          14
site, hitting a guardrail was worse than going down the embankment. Under these
circumstances, Caltrans’ standards would require a guardrail at the site if there was a
history of over-embankment accidents.
                  Appellants’ expert supplied accident data for two miles on either side of the
accident site for the 10 years preceding the accident of 2007. According to appellants’
information, during that 10-year period, 37 accidents occurred on the eastbound side of
                 15                                                                                  16
Interstate 40. Of those 37 accidents, seven were run-off-the-road accidents. Of those
seven, four took place within a mile of the accident site, and of those four, two took place
before the road was rehabilitated in 2003.
                  To summarize, the evidence showed that a reasonable employee could have
adopted a plan that did not call for a guardrail at the accident site in 2003. Taking into
account both the equal severity slope and the accident history, an employee could
reasonably conclude that a guardrail on the eastbound side of Interstate 40 at that location
was not only unneeded, but unsafe.
                  Appellants argue that design immunity cannot apply to the absence of the
guardrail because there is no evidence that Caltrans considered and rejected installing a


         14
                   The expert plotted these coordinates based on a survey of the accident site taken in September
2009, over two years after the accident occurred. If, however, appellants’ theories of erosion and lack of
maintenance were correct, the slope of the embankment should have been steeper in 2009 than it was in 2007. In
any event, appellants did not object to the use of the 2009 survey in determining where the embankment at the
accident site occurred on the severity curve.
          15
                   Appellants claimed that accident data for the westbound side of Interstate 40 should have been
considered, but the trial court rejected this claim. Appellants presented no evidence that the slope of the
embankment on the westbound side was similar to the slope on the eastbound side or that other differences did not
affect the accident rate.
          16
                   Appellants’ data do not indicate which side of eastbound Interstate 40 these vehicles ran off of.
They could have run off the road on the left side, onto the median.


                                                         14
guardrail at the accident site during the 2003 rehabilitation project. The plans for the
rehabilitation project show that Caltrans reconstructed 68,000 feet of guardrail during the
project. The inference is inescapable that when Caltrans was deciding where to install
guardrails, it was also deciding where not to install them. It installed a guardrail just east
of the accident site, so it must have been evaluating the area when it was refurbishing the
road. Caltrans presented sufficient evidence to support the reasonableness of the
approval of these plans.
              B.     Loss of Design Immunity
              The major difficulty with this case, we believe, stems from the conflation of
design immunity, an affirmative defense with the burden on the defendant, and loss of
design immunity, which the plaintiff must prove once the public entity has established
design immunity. (See Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1268.)
By mixing the two issues together, the parties introduced a great deal of confusion into
the case.
              Proof of loss of design immunity – after the public entity has achieved it –
has three components. The plaintiff must prove, first, that the design has become
dangerous because physical conditions have changed; second, the public entity had notice
– actual or constructive – of the dangerous condition; and, third, the public entity had
reasonable time and the money necessary to remedy the dangerous condition and did not
or, lacking the money or the means to fix it, did not attempt to adequately warn about the
condition. (Cornette, supra, 26 Cal.4th at p. 72.)
              Although the court correctly ruled that Caltrans had established the
elements of design immunity with respect to the guardrail and the dike, that did not end
the matter. Establishing design immunity as to these two aspects of the accident did not
necessarily prevent appellants from maintaining – and presenting evidence to the jury –
that Caltrans had lost design immunity owing to changed physical conditions after the
date when the designs were put into place. This showing was appellants’ to make, and

                                              15
our Supreme Court has emphasized that this is a jury question. (Cornette, supra, 26
Cal.4th at pp. 73-74.) A CACI jury instruction, No. 1123, supplies the necessary
                           17
guidance to the jury.
                  1.       Loss of design immunity as to the dike
                  The record contains no evidence that physical conditions changed between
2003, when the dike was installed, and 2007, when the accident occurred, to create a
dangerous condition as to the dike. In their opposition to the summary adjudication
motion, appellants argued that real danger was absence of shoulder support that should
have been laid down when the new type of dike was installed in 2003, not that anything
had happened to or around the dike during the intervening four years to make it
dangerous.
                  In essence, appellants did not proffer a loss of design immunity issue with
respect to the dike. The issue was, instead, whether Caltrans had followed the 2003
rehabilitation plans with respect to shoulder backing in the area of the dike.
                  The issue of shoulder backing, or lack thereof, went to the jury, which
                                                                      18
decided that it did not present a dangerous condition. To the extent appellants alleged
that failure to maintain the embankment behind the dike constituted a changed and
dangerous condition, that issue too went to the jury, which decided against appellants.
                   Appellants did not dispute the evidence regarding design immunity for the
dike. That is, they did not dispute causation, proper approval, and reasonableness of
design. The only change in physical condition appellants even remotely connected with
the dike – an embankment Caltrans failed to maintain – the jury rejected as a dangerous
condition. Appellants had the opportunity to present their case for liability based on the


         17
                   The directions for use state, “Give this instruction if the public entity defendant is entitled to
design immunity unless the changed-conditions exception can be established.”
         18
                   Appellants argued that shoulder backing was part of the 2003 rehabilitation project plan, but was
not actually installed. Caltrans’ expert testified at trial that it was installed, per the plan.


                                                         16
failure to install shoulder backing, on which they based their claim of liability with
respect to the dike.
              2.       Loss of design immunity as to the guardrail
              Caltrans established design immunity for its decision not to extend the
guardrail when it refurbished Interstate 40 in 2003. Therefore the initial decision not to
install a guardrail was off the table. Theoretically, however, upon supplying evidence
that the physical conditions had changed since 2003 creating a dangerous condition,
appellants could have introduced evidence of the possible remedies. One of these
remedies was extending the existing guardrail, at a nominal cost.
              What was the changed physical condition that could have supported the
guardrail extension remedy? Appellants alleged that the embankment had eroded such
that its slope had become steeper than originally designed and Caltrans had failed to
maintain it, allowing it to become too steep for safety. By extension, then, a guardrail
became necessary after 2003 to keep cars in trouble from running onto the now-
dangerous embankment.
              The maintenance/erosion issue, however, went to the jury. The jury heard
testimony from both sides’ experts about the measurements they had taken of the slope’s
steepness, about whether the embankment had eroded, and about whether it had been
properly maintained. The jury decided that the embankment did not pose a dangerous
condition at the time of the accident.
              Even if appellants could have produced evidence showing changed
conditions between 2003, when the road was refurbished, and 2007, when the accident
occurred, the jury determined that the embankment was not dangerous in 2007. We can
reverse a judgment only if the outcome would have been more favorable to the appellant
if the error had not been made. (See K.C. Multimedia, Inc. v. Bank of America
Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 952; Henry v. Red Hill
Evangelical Lutheran Church of Tustin (2011) 201 Cal.App.4th 1041, 1048.) Assuming

                                             17
that the trial court should have allowed appellants to address extending the guardrail in
connection with loss of design immunity, it would have made no difference. Because the
embankment did not constitute a dangerous condition, the jury did not reach the issue of a
potential remedy for the condition. Therefore evidence regarding the extension of the
guardrail would not have changed the outcome.
                                      DISPOSITION
              The order granting summary adjudication is reversed. The judgment after
jury trial is affirmed. The parties are to bear their own costs on appeal.




                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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