Filed 7/26/13

                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



RANDALL KEITH HAMPTON et al.,                   D061509

        Plaintiffs and Appellants,

        v.                                      (Super. Ct. No.
                                                37-2010-00101299-CU-PA-CTL)
COUNTY OF SAN DIEGO,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Affirmed.


        Thorsnes Bartolotta McGuire, John F. McGuire, Ian C. Fusselman and Benjamin I.

Siminou for Plaintiffs and Appellants.

        Thomas E. Montgomery, County Counsel, and Christopher J. Welsh, Deputy

County Counsel, for Defendant and Respondent.
                                             I.

                                    INTRODUCTION

       In November 2009, a vehicle that Randall Keith Hampton was driving collided

with another vehicle at an intersection in Valley Center. Hampton and his wife sued the

driver of the other vehicle as well as the County of San Diego (County).1 The Hamptons

brought claims against the County for dangerous condition of public property (Gov.

Code, § 835 et seq.)2 (fourth cause of action) and loss of consortium (third cause of

action). The County moved for summary judgment on the ground that the Hamptons'

claims were barred by the affirmative defense of design immunity. The trial court

granted the County's motion. On appeal, the Hamptons claim that the court erred in

granting the County summary judgment. We affirm.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     The Hamptons' complaint

       In their cause of action claiming dangerous condition of public property, the

Hamptons alleged that the County had duties to "properly and safely plan, design, build,

construct, operate, manage, maintain, direct, control, sign and supervise the roadways at

the intersection of Cole Grade Road and Miller Road in the County of San Diego," and

that the County breached these duties by "providing . . . inadequate sight distance for

1      The County is the only respondent in this appeal.

2     Unless otherwise specified, all subsequent statutory references are to the
Government Code.

                                             2
vehicular traffic approaching Miller Road from Cole Grade Road as well as for traffic

pulling out from Miller Road onto Cole Grade Road . . . creating a defective and

dangerous condition for motorists and traffic." The Hamptons further alleged:

            "As a proximate result, Defendant ROBERT PAUL CULLEN [the
            other driver involved in the accident] was unable to see the plaintiff
            as the plaintiff pulled out from Miller Road onto Cole Grade Road
            and the plaintiff RANDALL KEITH HAMPTON was unable to see
            Defendant ROBERT PAUL CULLEN as defendant approached this
            intersection while driving on Cole Grade Road[,] causing their
            vehicles to collide at this intersection. As a proximate result of
            Defendants' conduct, Plaintiff sustained the injuries and damages as
            herein alleged."

       In a loss of consortium cause of action, the Hamptons alleged that Randall Keith

Hampton had been unable to perform "necessary duties as a husband and the work and

services usually performed in the support . . . of the family," due to the County's conduct.

B.     The County's motion for summary judgment

       1.      The County's motion

       The County filed a motion for summary judgment and/or adjudication on the

ground that the affirmative defense of design immunity applied to bar the Hamptons'

claims against the County. In a supporting brief, the County noted that in order to

establish the defense of design immunity, a public entity is required to establish three

elements: 1) a causal relationship between the plan or design and the accident;

2) discretionary approval of the plan or design prior to construction; and 3) substantial

evidence supporting the reasonableness of the plan or design.




                                              3
       The County contended that the causal connection element was met based on the

Hamptons' allegation that the intersection at which the collision occurred constituted a

dangerous condition. With respect to the discretionary approval element, the County

stated that the County had approved plans for improvements to the intersection in 1995,

prior to the construction of those improvements in 1998. Finally, the County argued that

the declaration of Robert Goralka, a licensed engineer, demonstrated the reasonableness

of the plans for the intersection. The County also maintained that the Hamptons would

be unable to demonstrate changed conditions resulting in a loss of design immunity,

arguing that the Goralka declaration "establishes that the physical configuration of the

intersection was the same when this accident occurred as it was in 1998 when the

improvement project was completed."

       The County supported its motion with two "Road Review[s]"3 pertaining to the

intersection, engineering documents entitled "Plans for Construction of Cole

Grade/Miller Road Interim Intersection Improvements [(Plans)]," and Goralka's

declaration, among other items.

       In his declaration, Goralka stated that he is the County's traffic engineer and that

his current duties involved managing various aspects of traffic operations on County

roads. Goralka further stated that a 1989 Road Review noted that the sight distance from

Miller Road looking south on Cole Grade Road was less than desirable due to a "hump"



3      The Road Reviews were generated by the County's Department of Public Works
and identified various traffic conditions near the intersection and offered
recommendations for improving such conditions.

                                              4
in Cole Grade Road. The Road Review recommended lowering the crest on Cole Grade

Road south of the Miller Road intersection to obtain additional sight distance at the

intersection.

       Goralka stated that he had reviewed the Plans and noted the following with respect

to their approval:

          "The[] [P]lans consist of road cross-section diagrams, profiles, and
          striping plans. . . . Prior to actual construction[,] the [Plans] were, on
          March 3, 1995[,] signed by David Solomon, a licensed civil engineer
          and traffic engineer who served as Deputy County Engineer and was
          in charge of the County . . . Design Engineering Section. As the
          person in charge of the County's Design Engineering Section, he had
          been delegated by the County Board of Supervisors, through the
          Director of the Department of Public Works, discretion and authority
          to approve plans such as [the Plans]. After the project was
          completed, 'as built' plans were approved and signed by John
          Bidwell, a licensed civil engineer who served as Senior Civil
          Engineer of the County's Design Engineering Section on April 13,
          1998."

       Goralka described the purpose of the Plans as follows:

          "The [Plans] called for the lowering of the crest on Cole Grade
          Road, just south of the Miller Road intersection. The effect of
          lowering the crest is to improve intersection sight distance for the
          users of westbound Miller Road who look to view northbound traffic
          on Cole Grade Road as they are preparing to enter the intersection.
          The 'as-built' plans confirm that the crest of Cole Grade Road was
          lowered by several feet. The plans called for widening of both Cole
          Grade and Miller Roads, at their intersection to accommodate a left
          turn pocket on both northbound and southbound Cole Grade Road
          for vehicles turning west, and east respectively onto Miller Road.
          The as-built plans confirm that this feature of the project was
          constructed."

       With respect to the issue of sight distance at the intersection in the wake of the

improvements, Goralka stated the following:



                                              5
           "I have reviewed the [1999 Road Review] regarding Cole Grade
           Road. . . . In this Road Review, which is after the intersection
           improvement project, the reviewer notes that sight distance for
           westbound traffic is not adequate from 10 feet behind the limit line
           on Miller Road at the intersection with Cole Grade Road. This is a
           measurement typically used in designing new roads, and it does not
           mean that the County failed to provide reasonable sight distance for
           existing, previously constructed roads such as the intersection of
           Miller Road and Cole Grade Road. My usual manner of gauging
           operational sight distance from a side street at an intersection such as
           this, and the manner I have usually seen used by those working for
           the County, is to measure back from the prolongation of the painted
           edge of [the] lane line, not the limit line. In this instance, the edge of
           the lane line is several feet in front of the limit line. As a practical
           matter, a driver on westbound Miller Road who creeps forward from
           the limit line but has not yet crossed into the oncoming travel lane is
           able to gain more sight distance to the left, looking for traffic on
           northbound Cole Grade Road. This results in 'operational' sight
           distance."

      Goralka also stated that, in his opinion, the Plans are reasonable.

            "The [Plans] are reasonable. The configuration of the intersection
           shown in the plans provides adequate operational sight distance for a
           driver who creeps forward from the limit line. Having viewed the
           site in person, I can say that the operational sight distance provided
           between westbound Miller Road and northbound Cole Grade Road is
           adequate. The plans did not achieve a more desirable amount of
           sight distance sought when a new intersection is being designed
           from scratch in an open area. But the project did achieve operational
           sight distance, which is a reasonable improvement when, as here,
           there are design constraints including roadways already in place that
           are near the crest of a hill and an embankment with existing
           utilities."

      2.      The Hamptons' opposition

      The Hamptons filed an opposition in which they argued that the County was not

entitled to summary judgment based on the affirmative defense of design immunity

because the County failed to establish as a matter of law the "discretionary approval" and



                                               6
"reasonable design" elements of the defense.4 The Hamptons based their opposition

primarily on the contention that the Plans disregarded the County's "own methodology

for measuring sight distance." In support of this contention, the Hamptons stated that the

Plans failed to provide either adequate "design sight distance" or "operational sight

distance."5

       The Hamptons noted that although the parties agreed that the County's design sight

distance standard had not been met,6 the parties disputed whether the Plans achieved

sufficient operational sight distance under County guidelines. The Hamptons maintained

that in stating that operational sight distance at the intersection was adequate, the

County's expert, Goralka, "fail[ed] to follow the County['s] protocol for measuring sight

distance." The Hamptons argued that Goralka failed to base his calculation of

operational sight distance on measurements derived "from the edge of the pavement" as




4       The Hamptons did not dispute that the County had established the first element of
its design immunity defense, namely, the existence of a causal relationship between the
Plans and the accident.

5       The Hamptons argued that "[t]he purpose of providing design sight distance is to
allow a driver intending to enter the intersection with sufficient time to decide whether it
is safe to enter." The Hamptons contended that "[t]he purpose of providing 'operational'
sight distance is to allow a party sufficient time to perceive and then stop before
impacting a vehicle in the intersection."

6       Although the County agreed that the design sight distance standard had not been
met, the County contended that this standard applied only to the design of new
intersections, and that operational sight distance standards applied to improvements made
to existing intersections.


                                              7
required under County protocol, and that he had instead improperly measured from "the

edge of the lane."7

       With respect to the discretionary approval element, the Hamptons argued that "the

Plans are silent as to sight distance," and that the County thus failed to "provide[]

evidence that the deviations from design standards . . . were approved or even

considered." In addition, the Hamptons argued that any approval of the Plans was

necessarily unreasonable in light of the fact that the plans deviated from County sight

distance standards.

       The Hamptons also argued that the County's failure to maintain the intersection

had resulted in changed conditions that precluded the application of the County's design

immunity defense. Specifically, the Hamptons maintained that plant growth along an

embankment on Cole Grade Road south of Miller Road further reduced the already

inadequate sight distance at the intersection provided for in the Plans.

       The Hamptons supported their motion with various documents and the declaration

of Edward Stevens, a licensed civil engineer who has significant traffic engineering

experience. In his declaration, Stevens stated that an embankment runs along the east

side of Cole Grade Road as it approaches Miller Road and that this embankment limits

sight distance for westbound traffic on Miller Road looking south toward northbound

traffic on Cole Grade Road. Stevens further stated that the Plans do not depict the


7      It is undisputed that since there is a difference of several feet between the edge of
the pavement and the edge of the lane of traffic at the intersection at which the accident
occurred, a sight distance measurement taken relative to the pavement edge yields less
sight distance than one taken from the edge of the lane line.

                                              8
embankment and that as a result, it is not possible to determine from the Plans the actual

sight distance at the intersection. Stevens stated that although the County standard for

design sight distance requires at least 550 feet of sight distance at the intersection and the

County standard for operational sight distance requires at least 388 feet, actual design

sight distance at the intersection was only 214 feet and operational sight distance was

only 323 feet.

       Stevens stated the following with respect to Goralka's declaration as to the

adequacy of sight distance at the intersection:

          "The standards set out by the County of San Diego . . . require that
          design and operational sight distance be measured backwards from
          the prolongation of the curb or gutter line or edge of the pavement,
          not from the edge lane line. The Declaration of Robert Goralka
          suggests that satisfactory operational sight distance exists at the
          si[te]. However, Mr. Goralka does not use the standard adopted by
          the County of San Diego for measuring sight distance. Further, Mr.
          Goralka's methodology is not generally accepted in the traffic
          engineering community as an appropriate means of measuring
          design or operational sight distance."

       Stevens contended that because of the lack of information pertaining to sight

distance in the Plans, "the engineer approving the Plans could not have exercised

discretionary approval of the sight distance." In addition, Stevens maintained that given

the inadequacies in the Plans pertaining to sight distance, "there is no basis upon which a

traffic engineer could have reasonably approved the Plans."

       Stevens attached various documents to his declaration, including two County

engineering drawings, numbered DS-20A and DS-20B. The drawings are marked, "San

Diego County Design Standard[s]" and are entitled, "Clear Space Easement Type A" and



                                              9
"Clear Space Easement Type B," respectively. The drawings appear to depict easements

necessary to achieve adequate "corner sight distance"8 at two different shaped

intersections. Both documents also contain an identical table that lists the "minimum

corner intersection sight distance" in feet for various "design speed[s]." The table states

that for a design speed of 50 miles per hour (MPH), 500 feet of corner intersection sight

distance is required, and that when the design speed increases to 60 MPH, 600 feet of

sight distance is required.

       Stevens also included a document that contains several tables. One table, entitled,

" 'Corner' Sight Distance on Level Roadways," repeats the corner sight distance

information discussed in the previous paragraph, and includes a notation that states the

following: "Corner sight distance measured from a point on the minor road at least 10

feet from the edge of the major road pavement and measured from a height of eye of 3.5

feet on the minor road to a height of object of 4.25 feet on the major road. (See Count[y]

. . . Public Road Standards Drawings DS-20A and DS-20B)." Another table is entitled,

" 'Operational' Stopping Sight Distance on Level Roadways," and contains a note that

states, "Operational [Sight] Distance Measured from a point on the minor road 8 feet

from the edge of pavement. (Distance from the front of the vehicle to the driver's eye is

nearly always 8 ft [citation].) Measured from a height of eye of 3.5 feet on the minor

road to a height of object of 3.5 feet on the major road [citation]."




8      It appears from the record that the terms "design sight distance" and "corner sight
distance" are used interchangeably.

                                             10
       3.     The County's reply

       The County filed a reply in which it reiterated its argument that Goralka's

declaration established the existence of discretionary approval of the Plans prior to

construction. With respect to the reasonableness of the Plans, the County argued that the

fact that "experts disagree on the best approach to the sight distance problem" did not

establish a lack of "substantial evidence to support the reasonableness of the approach

actually followed by the County."

       Specifically, the County argued that " 'operational' rather than 'design' criteria

appl[y] to an intersection of existing roadways," such as the intersection at issue. The

County also contended, "The way that operational sight distance at this intersection was

measured is consistent with the County's practices, where the edge of the lane used by

oncoming traffic is several feet in front of the limit line, thereby allowing drivers on

westbound Miller Road plenty of room to safely creep forward and look both ways before

reaching the oncoming lane and crossing into the intersection." The County further

argued that when operational sight distance is measured in this manner, the Plans provide

for adequate sight distance. Finally, the County argued that any growth in plants on the

embankment along Cole Grade Road did not constitute a relevant changed condition

since even with such growth, the embankment does not reduce the operational sight

distance of a reasonable driver who creeps forward beyond the limit line and checks for

oncoming traffic prior to entering the intersection.




                                             11
        In support of its reply, the County lodged a portion of the deposition testimony of

its retained expert, Arnold A. Johnson. In the deposition, Johnson testified that a County

document entitled "Service Request Guidelines Si[ght] Distance at Intersection" states,

"Sight distance is measured 8 feet back from the prolongation of the curb or 8 feet back

from an edge line." (Emphasis added.) The County also lodged a portion of Stevens's

deposition in which Stevens acknowledged that if Hampton had pulled his vehicle to a

point forward of the limit line on Miller Road just before entering the lane of traffic on

Cole Grade Road, "Cullen's vehicle would be within his view if it was within 550 feet of

the intersection. . . ."

C.      The trial court's ruling

        The trial court held a hearing on the motion. At the conclusion of the hearing, the

court took the matter under submission. Four days later, the trial court issued an order

granting the County's motion for summary judgment. The court ruled that the County

had established its design immunity affirmative defense as a matter of law. In reaching

this conclusion, the court reasoned in part:

            "Defendant County has shown that no material issues of fact exist to
            overcome the County's statutory entitlement to design immunity. As
            is made clear by the Goralka Declaration . . . the [Plans] were
            approved by Deputy County Engineer David Solomon, a licensed
            civil engineer and traffic engineer on [March 3, 1995]. He was in
            charge of the County of San Diego Design [E]ngineering Section.
            As the person in charge of that Section, he had been delegated by the
            County Board of Supervisors, through the Director of the
            Department of Public Works, to have discretion and authority to
            approve such plans. This bespeaks sufficient discretion to entitle the
            County to invoke design immunity, as a matter of law. The court
            finds that the Goralka declaration is of solid evidentiary value and
            inspires confidence in the conclusions expressed.


                                               12
          "Further, . . . (as built) Drawings were signed off on by John
          Bidwell, a licensed civil engineer who served as Senior Civil
          Engineer of the County's Design Engineering Section on [April 13,
          1998]. [Citation.] Defendant County has satisfied the three
          elements necessary to show the County's entitlement to design
          immunity by substantial evidence . . . . Typically, the opinion of a
          civil engineer as to the reasonableness of the design constitutes the
          'substantial evidence' that is necessary to support the design
          immunity defense. [Citation.]

          "The fact that Plaintiffs have an expert, Ed Stevens, who disagrees
          with the County's witness, is of no consequence. It does not matter
          whether the evidence of reasonableness is disputed, as the statute
          provides immunity even when the public entity's substantial
          evidence of the reasonableness of its design is contradicted by the
          opposing party's traffic engineer. [Citations.]

          "The court finds that there is substantial evidence upon which a
          reasonable public employee could have adopted the plan or design
          which gave rise to the 1998 modifications to Cole Grade Road near
          the subject intersection. . . . Further the court determines that
          plaintiff has failed to offer material admissible evidence of
          significant changed physical conditions since 1988 rendering the
          subject intersection dangerous (let alone that the County had prior
          notice of same). There is no material triable issue of fact on this
          contention. The County is entitled to Judgment as a matter of law."9

      The trial court subsequently entered judgment in favor of the County.

D.    The Hamptons' appeal

      The Hamptons timely appealed from the judgment.



9       The trial court also sustained numerous objections that the County made to
Stevens's declaration, including portions of his declaration described above. On appeal,
the Hamptons contend that the trial court erred in sustaining those objections, contending
that the "propriety of [the County's] objections turns on this court's view of the law on
design immunity." We need not consider the propriety of the trial court's evidentiary
rulings, because even assuming that all of Stevens's declaration was admissible, for the
reasons that follow, we conclude that the trial court properly granted the County's motion
for summary judgment.

                                            13
                                            III.

                                      DISCUSSION

       The trial court properly granted the County's motion for summary judgment

A.     The trial court properly determined that the County established, as a matter of
       law, the affirmative defense of design immunity

       The Hamptons contend that the trial court erred in concluding that the County

established, as a matter of law, the affirmative defense of design immunity.

       1.     Governing law

              a.     The law governing summary judgment

       A moving party is entitled to summary judgment when the party establishes that it

is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.

(c).) A defendant may make this showing by demonstrating that the plaintiff cannot

establish one or more elements of all of his causes of action, or that the defendant has a

complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th

461, 466.)

       In reviewing a trial court's ruling on a motion for summary judgment, the

reviewing court makes " 'an independent assessment of the correctness of the trial court's

ruling, applying the same legal standard as the trial court in determining whether there

are any genuine issues of material fact or whether the moving party is entitled to

judgment as a matter of law. [Citations.]' [Citation.]" (Trop v. Sony Pictures

Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)




                                             14
              b.     General principles of law governing the affirmative defense of
                     design immunity

        In Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 69 (Cornette), the

Supreme Court explained the purpose of the design immunity defense as follows:

           "The rationale for 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.
           [Citation.] ' " '[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.]' [Citation.]" (Id. at
           p. 69.)

        Section 830.6, which codifies the defense of design immunity, provides in relevant

part:

           "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."

        "In other words, a public entity claiming design immunity must establish three

elements: (1) a causal relationship between the plan or design and the accident; (2)

discretionary approval of the plan or design prior to construction; and (3) substantial



                                             15
evidence supporting the reasonableness of the plan or design. [Citations.]" (Cornette,

supra, 26 Cal.4th at p. 69.)

       The discretionary approval element may be resolved as an issue of law if the

material facts pertaining to the element are undisputed. (Grenier v. City of

Irwindale (1997) 57 Cal.App.4th 931, 940 (Grenier).) The element "simply means

approval in advance of construction by the legislative body or officer exercising

discretionary authority." (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515,

526 (Ramirez).) "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." (Grenier, supra, at pp. 940-941.)

       The third element, substantial evidence supporting the reasonableness of plan or

design always presents a question of law. (See Cornette, supra, 26 Cal.4th at

p. 72 ["Section 830.6 clearly makes the resolution of the third element of design

immunity, the existence of substantial evidence supporting the reasonableness of the

adoption of the plan or design, a matter for the court, not the jury."].) Further, the statute

provides immunity when there is any substantial evidence of reasonableness, even if

contradicted. (Grenier, supra, 57 Cal.App.4th at p. 940.)

       2.     Application

       The Hamptons contend that the trial court erred in concluding that the County

established the elements of discretionary approval of the Plans and substantial evidence

supporting the reasonableness of the Plans. We consider each element in turn.




                                              16
              a.     Discretionary approval

       The County presented undisputed evidence that a licensed civil and traffic

engineer working for the County, David Solomon, approved the Plans prior to the

construction of the improvements. The Plans consist of construction documents that

include various drawings, including details of the intersection at which the accident

occurred. The Plans themselves indicate that they have been "approved by" Solomon.

The County also presented undisputed evidence both that Solomon had the discretionary

authority to approve the Plans, and that a licensed engineer working for the County

approved and signed "as built" plans after construction of the improvements. This

evidence demonstrates the discretionary approval element, as a matter of law. (See, e.g.,

Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263 (Laabs) [evidence that an

engineer employed by a public entity "reviewed and approved" construction plans

established discretionary approval element as a matter of law]; Grenier, supra, 57

Cal.App.4th at p. 941 [concluding that City established discretionary approval element as

a matter of law where "plans were prepared by Saguchi, a civil engineer, and approved by

Alvarado, the city engineer, after review"]; Ramirez, supra, 192 Cal.App.3d at p. 525

[concluding discretionary approval element demonstrated as a matter of law where "the

City's engineer, along with the engineers and other officials of the county who were

recognized as being competent in the design of highways, approved the design before it

was adopted by the City"].)




                                            17
       In arguing that the trial court erred in concluding that the County established the

discretionary approval element, the Hamptons cite two cases, Levin v. State of

California (1983) 146 Cal.App.3d 410 (Levin), and Hernandez v. Department of

Transp. (2003) 114 Cal.App.4th 376 (Hernandez). The Hamptons argue, "Levin and

Hernandez teach that where, as here, there is evidence the design at issue violated the

public entity's own standards, the public entity cannot establish the second element of

design immunity—discretionary approval—unless it shows that the engineer who

approved the plans (1) knew it was substandard, (2) elected to disregard the standard, and

(3) had the authority to do so." We agree that Levin and Hernandez support this

proposition. (Levin, supra, at p. 418 [concluding that state failed to establish

discretionary approval of plans because state failed to show that the public employee who

approved plans decided to "to ignore the standards [pertaining to placement of a

guardrail] or considered the consequences of the elimination of the eight feet shoulder"];

Hernandez, supra, at p. 388 [concluding triable issue of fact existed as to discretionary

approval element because there was "[c]onflicting evidence . . . presented in the trial

court as to whether the off-ramp design at issue in this case deviated from the applicable

guardrail standards and, if so, whether that deviation was knowingly approved by the

responsible Caltrans authorities"].) However, for reasons we explain below, we do not

find either decision persuasive in this regard, and we therefore decline to follow Levin or

Hernandez with respect to the nature of the evidence that the governmental entity must

present to establish the discretionary approval element.




                                             18
       In Levin, Dr. Marcia Levin was killed in an automobile accident that occurred

when she tried to avoid a head-on collision with a drunk driver who had illegally crossed

the double yellow line, into Levin's lane. (Levin, supra, 146 Cal.App.3d at p. 414.)

Levin was "driving at a lawful speed, and in a reasonable manner, and tried to avoid the

collision swerving to her right, but went over a steep embankment into the channel from

which the embankment had been excavated." (Ibid.) Levin's car overturned and she

drowned. (Id. at p. 415.) Levin's family members sued the state and brought a cause of

action for wrongful death. (Id. at p. 413.) The state filed a motion for summary

judgment based on the defense of design immunity, which the trial court granted. (Ibid.)

       On appeal, the Levins contended that the trial court erred in granting the state's

motion for summary judgment. (Levin, supra, 146 Cal.App.3d at pp. 413-414.) After

outlining the elements of the design immunity defense, and concluding that the causal

relationship element of design immunity had been established (id. at pp. 415- 417), the

Levin court noted that the discretionary approval element was "the major focus of the

contentions on this appeal." (Id. at p. 417.) With respect to this element, the Levin court

observed that the changes to Route 37 had been approved by a person named J. A.

Legarra, a state deputy highway engineer who had the authority to approve such changes.

The Levin court also noted that the record contained evidence that another state engineer

had "considered the placement of a median barrier and exterior guardrails, but concluded

that neither was advisable on this particular stretch of Highway 37." (Id. at p. 418.)

Despite the existence of this evidence, the Levin court concluded that the state had not

established the discretionary approval element of its design immunity defense, reasoning:


                                             19
          "The state has not challenged the existence and application of
          the . . . guardrail standards. [The state's evidence does] not mention
          them or the degree of the steep slope created by the embankment,
          which was created by the 1974 construction. There was no evidence
          that Legarra had discretionary authority to disregard the standards.

          "As our Supreme Court pointed out in Cameron v. State of
          California (1972) 7 Cal.3d 318, 326 [(Cameron)], the rationale of
          the design immunity defense is to prevent a jury from simply
          reweighing the same factors considered by the governmental entity
          which approved the design. An actual informed exercise of
          discretion is required. The defense does not exist to immunize
          decisions that have not been made. Here, as in Cameron, supra, the
          design plan contained no mention of the steep slope of the
          embankment. The state made no showing that Legarra, who alone
          had the discretionary authority, decided to ignore the standards or
          considered the consequences of the elimination of the eight feet
          shoulder. It follows that the state also failed to establish the second
          element of the defense." (Id. at p. 418, italics added; accord
          Hernandez, supra, 114 Cal.App.4th at p. 388 [applying Levin and
          concluding that triable issues of fact existed as to discretionary
          approval element of design immunity defense in light of conflicting
          evidence as to whether off-ramp design at issue in case deviated
          from applicable standards and, if so, whether deviation was
          knowingly approved,] italics added.)

       We respectfully disagree with Levin and Hernandez to the extent they suggest that

a public entity attempting to establish the discretionary approval element of a design

immunity defense must establish an exercise of informed discretion, and that evidence

that the public entity failed to adhere to standards pertaining to an element of a design

plan constitutes evidence of a lack of discretionary approval of the design. The text of

section 830.6, from which the discretionary approval element is derived, does not contain

any requirement of informed discretion. (See Alvis v. County of Ventura (2009) 178

Cal.App.4th 536, 552 (Alvis) ["[S]ection 830.6 does not state the approval must be

knowing or informed. A court may not rewrite a statute to make it conform to a


                                             20
presumed intent that is not expressed."].) Nor does the relevant statutory text require the

presentation of evidence demonstrating that the design conformed to relevant standards.

On the contrary, the statute provides that the discretionary element may be established

either by evidence of appropriate discretionary approval or evidence that the plan

conformed with previously approved standards. (§ 830.6 ["Neither a public entity nor a

public employee is liable under this chapter for an injury caused by the plan or design . . .

where such plan or design has been approved . . . by some . . . employee exercising

discretionary authority to give such approval or where such plan or design is prepared in

conformity with standards previously so approved," italics added].)

       The Supreme Court's decision in Cameron, supra, 7 Cal.3d 318, the sole case that

the Levin court cites in its analysis of the discretionary approval element,10 does not

support a requirement that the design conform to previously approved standards. In

Cameron, plaintiffs suffered injuries in an automobile accident that occurred after the

driver of the vehicle in which they were traveling lost control of the vehicle while

negotiating a curve on a highway. (Cameron, supra, at p. 321.) The plaintiffs brought a

cause of action against the state alleging that it "failed in its duty to keep the highway in a

safe condition in that the curve was so improperly graded or banked that an automobile

could not negotiate the curve even though going at a lawful speed." (Id. at p. 322.) The

trial court concluded that the state established as a matter of law all of the elements of its



10     Levin, supra, 146 Cal.App.3d 410 is the only relevant authority that the Hernandez
court cited with respect to this issue. (See Hernandez, supra, 114 Cal.App.4th at pp. 385-
388.)

                                              21
design immunity defense. (Id. at p. 322, fn. 3.) On appeal, the Supreme Court agreed

with the plaintiffs "that the design immunity conferred by Government Code section

830.6 is inapplicable since the design plan approved . . . did not specify the degree of

superelevation [on the curve] and since it was the improper superelevation which

constituted the dangerous condition causing the accident." (Id. at p. 322.)

       Cameron does not support the Levin court's interpretation of the discretionary

approval element because the holding in Cameron was premised not on an analysis of the

element of discretionary approval, but on the court's analysis of an entirely different

element of the design immunity defense, namely, the requirement that there be a causal

relationship between the plan and the accident. In Cameron, the court determined that a

causal relationship was lacking because the plan did not contain the design feature (a

superelevated curve) that plaintiffs alleged was the cause of the accident. (Cameron,

supra, 7 Cal.3d at p. 326 [concluding that because the "superelevation as . . . constructed

did not result from the design or plan introduced into evidence[,] . . . there was no basis

for concluding that any liability for injuries caused by this uneven superelevation was

immunized by section 830.6," fn. omitted, italics added].)

       In addition, while the Levin court was correct in noting that the Cameron court

observed that the rationale of the design immunity defense is to prevent a jury from

simply reweighing the same factors considered by the governmental entity that approved

the design (Levin, supra, 146 Cal.App.at p. 418, citing Cameron, supra, 7 Cal.3d at

p. 326), the Cameron court merely stated that this rationale would not be served by

providing immunity for a lawsuit based on the existence of a project design that is


                                             22
unrelated to the accident. In contrast, permitting a jury to reweigh the reasonableness of

a project design that is related to the accident, as in Levin and as in this case,11 would

permit a jury to simply reweigh the same factors already considered by the governmental

entity, in contravention of the rationale for design immunity.

       On a related point, the Levin court's statement in arguing that a public entity must

demonstrate that its employee's approval was informed (Levin, supra, 146 Cal.App.3d at

p. 418), conflates the third element of design immunity—the reasonableness of the

design, with the second—discretionary approval of the plans. This conflation is

significant, because while conflicting evidence as to the discretionary approval element

would require that a public entity's motion for summary judgment premised on design

immunity be denied (Grenier, supra, 57 Cal.App.4th at p. 940), conflicting evidence as to

the reasonableness of the design would not (ibid.).

       Finally, the determination of the nature of the evidence necessary to satisfy this

element in Levin and Hernandez is in conflict with numerous decisions in which courts

have held that the discretionary approval element is satisfied by proof that the plans were



11      In Levin, as noted above, the court concluded that the causal relationship element
of design immunity had been established. (Levin, supra, 146 Cal.App.3d at pp. 415-417.)
In this case, the Hamptons did not dispute in the trial court or in this court that the County
established the existence of a causal relationship between the design and the accident.
Thus, we need not consider whether any alleged inadequacy of sight distance at the
intersection as built was unrelated to the design plans, as was the case with the
superelevated curve at issue in Cameron. (See Cameron, supra, 7 Cal.3d at p. 326.)
Further, nothing we say in this opinion is contrary to the Cameron court's holding that
evidence that a plan omitted the condition that is the alleged cause of the accident may
defeat a showing of a causal relationship, since that element is not in dispute in this case.
(Ibid.)

                                             23
approved by a public employee having discretionary authority to effectuate such

approval. (See e.g., Becker v. Johnston (1967) 67 Cal.2d 163, 172-173 (Becker); Laabs,

supra, 163 Cal.App.4th at p. 1263; Grenier, supra, 57 Cal.App.4th at p. 941; Ramirez,

supra, 192 Cal.App.3d at p. 525.) For example, in Becker, supra, at pages 172-173, the

Supreme Court cited the following evidence pertaining to the discretionary approval

element of the design immunity defense at issue in that case:

          "The record in this case contains a copy of the plans of the
          intersection here involved, as recorded by the Recorder of
          Sacramento County in State Highway Map Book 3. Such plans on
          their face indicate that on July 11, 1927, they were approved by
          F.W. Hazelwood, Division Engineer, Division III; Fred Quinn,
          Engineer, Surveys and Plans; and R.W. Morton, State Highway
          Engineer; and, further, that the work was completed in 1929 in
          accordance with the plans."

The Becker court held that this evidence, when considered in connection with evidence

pertaining to the reasonableness of the design plan, established, as a matter of law, the

public entity's design immunity defense. (Id. at p. 173.)

       As discussed above, in this case, the evidence that the County presented pertaining

to the discretionary approval of the Plans is similar to that presented in Becker and in

numerous other cases in which courts have concluded that a public entity demonstrated

the discretionary approval element as a matter of law. Accordingly, we conclude that the

trial court properly determined that in presenting undisputed evidence that a licensed civil

and traffic engineer employed by the County approved the Plans prior to construction,

that this engineer had the discretionary authority to approve the Plans, and that another

licensed engineer employed by the County approved and signed the "as built" plans after



                                             24
construction of the improvements, the County demonstrated the discretionary approval

element of its design immunity defense as a matter of law.

       b.      Substantial evidence of the reasonableness of the Plans

       The Hamptons also contend that the trial court erred in concluding that the County

presented substantial evidence supporting the reasonableness of the plans.

               i.     Additional relevant law

       As discussed above, a public entity claiming a design immunity defense must

present substantial evidence supporting the reasonableness of the plan or design.

(Cornette, supra, 26 Cal.4th at p. 69.) "In order to be considered substantial, the

evidence must be of solid value, which reasonably inspires confidence. [Citations.]"

(Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 757.) "The task for the trial

court is to apply the deferential substantial evidence standard to determine whether any

reasonable [public] official could have approved the challenged design. [Citation.] If the

record contains the requisite substantial evidence, the immunity applies, even if the

plaintiff has presented evidence that the design was defective. [Citation.]" (Ibid.) In

Ramirez, supra, 192 Cal.App.3d 515, the court explained the rationale for this standard,

as follows:

            "The statute does not require that property be perfectly designed,
            only that it be given a design which is reasonable under the
            circumstances. By deciding on a 'reasonableness' standard, the
            Legislature intended that government officials be given extensive
            leeway in their decisions concerning public property.




                                             25
          "A governmental entity. . . is entitled to rely on what is apparently
          competent advice in making legislative decisions. The fact that on
          hindsight that advice may prove to have been flawed is not a basis
          for imposing liability on the governmental entity." (Id. at p. 525.)

       Therefore, " ' "[A]s long as reasonable minds can differ concerning whether a

design should have been approved, then the governmental entity must be granted

immunity." [Citation.]' [Citation.]" (Sutton v. Golden Gate Bridge, Highway &

Transportation Dist. (1998) 68 Cal.App.4th 1149, 1158.)

       "The fact of approval by competent professionals can, in and of itself, establish the

reasonableness element. (See, e.g., Ramirez[, supra,] 192 Cal.App.3d at p. 526.)"

(Higgins v. State of California (1997) 54 Cal.App.4th 177, 187 (Higgins).) However,

"[t]ypically, 'any substantial evidence' consists of an expert opinion as to the

reasonableness of the design, or evidence of relevant design standards. [Citations.]"

(Laabs, supra, 163 Cal.App.4th at pp. 1263-1264, italics added.)

                     ii.     Application

       It is undisputed that the Plans were approved by a licensed civil and traffic

engineer. As this court recognized in Compton v. City of Santee (1993) 12 Cal.App.4th

591, this fact supports a finding of reasonableness. (Id. at p. 597 ["First, the design of the

Magnolia Avenue Bridge was supervised by R. J. Massman, county engineer. This

factor, alone, probably suffices to establish immunity."].) In addition, Goralka's

declaration in which he stated that "[t]he [Plans] are reasonable," constitutes additional

evidence of the reasonableness of the plans. (Laabs, supra, 163 Cal.App.4th at pp. 1263-

1264 [substantial evidence of the reasonableness of a design may be demonstrated by an



                                             26
expert's opinion]; see also Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007,

1015 (Hefner) ["Ordinarily, the opinion of a civil engineer as to the reasonableness of a

design constitutes 'any' substantial evidence sufficient to support a design immunity

defense under section 830.6"].)

       Contrary to the Hamptons' contention that Goralka's declaration is "perhaps the

charter example of conclusory expert testimony," Goralka provided a reasoned

explanation for his conclusion that the operational sight distance at the intersection is

adequate. Goralka explained that it was reasonable for the engineer to anticipate that a

reasonable driver on westbound Miller Road would move slowly past the limit line on

Miller Road in order to gain adequate sight distance to the left, prior to entering the

intersection with Cole Grade Road. That Goralka's explanation is reasonable finds

support in case law:

          "The practice of stopping at a limit line and then 'creeping' forward
          to a point of visibility has long been recognized as 'practical' under
          California law. [Citation.] There are many reasons why a limit line
          would be placed where visibility of oncoming traffic might be
          impaired. Troll[e]y or railroad tracks could require the limit line to
          be set back from the intersection. Or (as anyone who has driven in
          San Francisco would understand), many times the limit line is placed
          below the crest of a steep hill to avoid a pedestrian crosswalk,
          requiring the driver to cross the limit line before he or she can tell
          whether it is safe to proceed further." (Hefner, supra, 197
          Cal.App.3d at p. 1016.)

       The Hamptons' presentation of conflicting expert testimony as to the

reasonableness of the Plans does not demonstrate that the County failed to present

substantial evidence of their reasonableness. (See, e.g., Grenier, supra, 57 Cal.App.4th

at p. 941 ["That a plaintiff's expert may disagree does not create a triable issue of fact," as


                                              27
to the existence of substantial evidence of the reasonableness of a design]; Higgins,

supra, 54 Cal.App.4th at p. 186 [same]; Compton, supra, 12 Cal.App.4th at pp. 596-597

[same].)

       The Hamptons' citation to Levin, supra, 146 Cal.App.3d at page 418, also does not

support reversal. While the Levin court concluded that the testimony of the state's expert

witness in that case did not constitute substantial evidence of the reasonableness of the

design plan, the Levin court reached this conclusion in part because there was undisputed

evidence that the design at issue did not meet applicable standards. (Ibid. ["The state has

not challenged the existence and application of the above quoted guardrail standards"].)

In contrast, in this case, the County maintains that the intersection complied with all

applicable County guidelines for sight distance. The County supported this argument in

the trial court with expert testimony that the intersection provides adequate sight distance,

when such distance is probably measured under County standards. (See pt. II.B.3., ante.)

Under these circumstances, the fact that the Hamptons' expert concluded otherwise does

not preclude summary judgment. For example, in Compton, supra, 12 Cal.App.4th 591,

the plaintiff presented an "expert's testimony that the 'sight distances' were below

recommended standards," and argued that "this testimony raises an issue of fact as to

whether the design was reasonable." (Id. at p. 596.) This court rejected plaintiff's

argument, reasoning:




                                             28
            "The problem with this argument is that it does not focus on the key
            determination to be made in a design immunity case. The issue is not
            whether the trial court or jury could find the design unreasonable
            based on conflicting evidence, but whether there is any reasonable
            basis on which a reasonable public official could initially have
            approved the design." (Id. at pp. 596-597; accord Grenier, supra, 57
            Cal.App.4th at pp. 938, 940-942 [concluding City presented
            substantial evidence of the reasonableness of a design
            notwithstanding plaintiff's expert testimony that design failed to
            meet various applicable standards].)

       Further, the Levin court's conclusion that the state had failed to present substantial

evidence of the reasonableness of the design at issue in that case was premised in part on

the fact that "the record reveals a conflict between Levin's experts and the state's as to the

reasonableness of the design." (Levin, supra, 146 Cal.App.3d at p. 418.) However, as

noted above, the law is well established that "section 830.6 provides immunity even if the

evidence of reasonableness is contradicted." (Alvis, supra, 178 Cal.App.4th at p. 554.)

We therefore decline to follow the reasoning of Levin in this respect.

       In sum, the trial court properly concluded that there is substantial evidence in the

record that the Plans are reasonable.

       3.      Conclusion

       Contrary to the Hamptons' counsel's suggestion at oral argument, we do not hold

that a public entity is entitled to design immunity any time an employee with authority

signs off on a plan and another employee/engineer attests that the plan is reasonable. To

begin with, as noted previously, the Hamptons did not dispute in the trial court or in this

court that the County established a causal relationship between the Plans and the

accident. Thus, while "section 830.6 does not immunize for liability caused independent



                                              29
of design," we have no occasion to consider the potential application of this principle in

this case. (Alvis, supra, 178 Cal.App.4th at p. 550, citing Cameron, supra, 7 Cal.3d at

pp. 328-329.) With respect to the discretionary approval element, we conclude that the

trial court properly determined that the County presented evidence establishing that an

employee with discretionary authority approved the Plans for the redesign of the

intersection at issue, and that nothing more is required to establish the second element of

design immunity. Finally, we conclude that the County presented substantial evidence of

the reasonableness of the Plans by offering expert testimony that the intersection provides

adequate sight distance when such distance is properly measured under the applicable

County guideline. Accordingly, we conclude that the trial court properly determined that

the County established, as a matter of law, the affirmative defense of design immunity.

B.     The trial court properly determined that there is no triable issue of fact
       with respect to the Hamptons' contention that changed circumstances
       resulted in a loss of design immunity

       The Hamptons maintain that the trial court erred in concluding that they failed to

demonstrate a triable issue of fact with respect to their contention that changed

circumstances at the intersection resulted in a loss of design immunity.

       1.     Governing law

       In order to defeat the County's motion for summary judgment on the ground of

loss of design immunity, the Hamptons bore the burden of producing evidence sufficient

to demonstrate a triable issue of fact with respect to the following three elements: (1) the

plan or design has become dangerous because of a change in physical conditions; (2) the

public entity had actual or constructive notice of the dangerous condition thus created;


                                             30
and (3) the public entity had a reasonable time to obtain the funds and carry out the

necessary remedial work to bring the property back into conformity with a reasonable

design or plan, or the public entity, unable to remedy the condition due to practical

impossibility or lack of funds, had not reasonably attempted to provide adequate

warnings. (Laabs, supra, 163 Cal.App.4th at p. 1268.)

       2.     Application

       The Hamptons contend that they established the existence of a triable issue of fact

with respect to whether the County lost any applicable design immunity based on the

existence of an "accumulation of additional foliage on the embankment which further

limited sight distance looking south from Miller Road." We are not persuaded.

       To begin with, we disagree that any changes in the physical topography of the

embankment constituted evidence that the design for the intersection had become

dangerous. It is undisputed that the embankment does not impede operational sight

distance for a westbound driver on Miller Road looking south on Cole Grade Road who

is within eight feet of the edge of lane of traffic on Cole Grade Road regardless of any

overgrowth.12 Further, as discussed above, the County presented evidence that it was

reasonable for an engineer to design the intersection using operational sight distance


12      The County's retained expert testified that the embankment had no effect on sight
distance when a driver is "within 8 feet of the edge line," and stated "the embankment is
not a factor, in my opinion." The Hamptons' expert, Edward Stevens, was asked during
his deposition, "[I]f Mr. Hampton had pulled forward and just before entering—the front
of his vehicle would enter and cross into that through lane, if he had looked left, Mr.
Cullen's vehicle would be within his view if it was within 550 feet of the intersection,
correct?" Stevens responded, "That's true."


                                            31
calculations measured from this location. (See pt. II.B.3., ante.) Thus, any changes in

the physical condition of the embankment do not constitute evidence of a dangerous

condition.

       With respect to the notice element, the Hamptons cite a 2008 "County of

San Diego - Department of Public Works Traffic Engineer Request." This one-page

handwritten document appears to pertain to a citizen's request that an "Adopt-A-Road"

sign be placed on Miller Road. The document recommends removing Miller Road from

the Adopt-A-Road availability list on the grounds that the "majority of the road is

curvilinear," and there are "limited roadsides[13] due to vegetation being overgrown and

[the] embankment." The document does not refer to the intersection in question, and

clearly does not demonstrate the existence of a triable issue of fact with respect to

whether the County had actual or constructive notice of a dangerous condition created by

the purported changed condition. Finally, the Hamptons do not discuss the third element

of loss of design immunity, pertaining to funding, in their brief.

       Accordingly, we conclude that the Hamptons failed to demonstrate that the trial

court erred in determining that there is no triable issue of fact with respect to the

Hamptons' contention that changed circumstances resulted in a loss of design immunity.




13      The handwriting on the document makes this word difficult to read, but it appears
to state "roadsides."

                                              32
                                        IV.

                                   DISPOSITION

      The judgment is affirmed. The Hamptons are to bear costs on appeal.


                                                                            AARON, J.

WE CONCUR:


NARES, Acting P. J.


O'ROURKE, J.




                                         33
