Wilson v. Cal. Hwy. Patrol CA4/2 ( 2014 )

Filed 11/21/14 Wilson v. Cal. Hwy. Patrol CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEPHEN WILSON et al.,
Plaintiffs and Appellants, E056698
v. (Super.Ct.No. CIVBS1000511)
CALIFORNIA HIGHWAY PATROL, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. John. B. Gibson,
Judge. Affirmed.
Verlato and Roberts, and April A. Verlato for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant
Attorney General, Kristin G. Hogue, Assistant Attorney General, and Joel A. Davis,
Deputy Attorney General, for Defendant and Respondent.
On November 9, 2008, Stephen Wilson was injured and Faith Wilson was killed
on Interstate 40 (I-40) as a result of multiple traffic collisions due to obscured visibility
caused by a sandstorm. In an action seeking damages for personal injuries and wrongful
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death against defendant and respondent California Highway Patrol (CHP) and others1
alleging a dangerous condition of public property, plaintiffs and appellants Stephen
Wilson, Alex Wilson, Hope Elizabeth Cronkite and Randall Wilson appeal from a
summary judgment entered against them. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
At approximately 1:27 a.m. on November 9, 2008, the National Weather Service
(NWS) issued a wind advisory to public agencies for the desert area east of Barstow:
“WEST WINDS WILL INCREASE THROUGH THE REMAINDER OF TONIGHT
WITH SUSTAINED WINDS BETWEEN 25 AND 35 MPH AND GUSTS AROUND 45
MPH EXPECTED BY EARLY MORNING. . . . THE STRONG WIND GUSTS WILL
CAUSE AREAS OF BLOWING DUST WITH REDUCED VISIBILITY AT
TIMES. . . WINDS THIS STRONG CAN MAKE DRIVING DIFFICULT . . .
ESPECIALLY FOR HIGH PROFILE VEHICLES. USE EXTRA CAUTION.”
According to plaintiffs’ expert, this advisory was transmitted to all CHP stations in
the affected areas. In the three years prior to November 9, 2008, traffic collisions had
occurred along I-40, between mile markers 19 and 29, due to sand obstructing visibility
on August 12, 2005, November 14, 2006, December 8, 2006, and April 12, 2007. The
sandstorm on April 12, 2007, resulted in six separate traffic collisions and two fatalities.
At approximately 5:00 a.m. on November 9, 2008, Stephen and Faith Wilson
woke up and prepared to start their road trip to Santa Fe, New Mexico. At approximately
1Because CHP is the only defendant who is a party in this appeal, other
defendants and claims against them will be referred to as needed.
2
6:00 a.m., CHP Officer Ronald Fredricks began his shift in Barstow. He was assigned to
I-40 between Interstate 15 (I-15) and mile marker 50. At approximately 7:30 a.m. the
officer noticed a “slight wind” when issuing a traffic citation on southbound I-15. He did
not head to his “assigned beat” until he received a call about the collision that occurred at
approximately 8:30 a.m. Two vehicles had collided due to obscured visibility caused by
a sandstorm on I-40 between mile markers 19 and 29 approximately 25 miles east of
Barstow. Subsequent collisions occurred between 8:30 a.m. and 8:44 a.m., which
involved many vehicles and resulted in the death of Faith Wilson, who was a passenger in
the vehicle driven by Stephen Wilson (Wilson accident).
Motorists found that visibility was reduced due to sand picked up by strong winds.
Eddie Elmore, a truck driver who rear-ended Stephen Wilson’s Porsche sports utility
vehicle, testified that when he entered the sandstorm on I-40, it was as if the desert
“flipped on top of [him] and fell from the sky.” Other motorists described the visibility
as unpredictable and varying in intensity, where in one second you could see and the next
you could not see at all. According to the declaration of expert witness Elizabeth Austin,
winds had reached up to 41 miles per hour, picking up sand into the air, making even
walking difficult in the wind, by 7:51 a.m. on November 9, 2008, along I-40.
Witness Salvador Heredia observed dust visible ahead at least three to four miles
back from the scene of the accidents. In the last two miles approaching the accident,
visibility would decrease from blowing dust, and then clear. Closer to the accident scene,
visibility decreased, and Heredia could only see the back of another vehicle a few car
lengths ahead. Heredia slowed to two to five miles per hour and eventually came to a
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stop behind a vehicle ahead of him that had also stopped. Suddenly, a Porsche came
from behind at a higher speed, hit the right rear corner of Heredia’s trailer, and veered off
the highway.
Eddie Elmore, a driver for John Christner Trucking, began encountering blowing
dust and sand for many miles prior to the accident. Nonetheless, he admittedly was
driving 45 to 48 miles per hour at impact despite the severe weather conditions.
The first indication to CHP of any problem near the accident site occurred at
approximately 8:30 a.m. when CHP was notified of a “property damage collision” east of
the scene. Officer Fredricks responded; however, by the time he arrived, the Wilson
accident had occurred.
Stephen Wilson and his children initiated this action against CHP on
September 25, 2009, seeking damages for the wrongful death of Faith Wilson. In the
same action, Stephen Wilson sought damages for his own personal injuries. The primary
theory of liability asserted against CHP is that it had maintained public property, i.e., I-
40, in a dangerous condition. (Gov. Code, § 835.) Plaintiffs claimed that CHP failed to
divert traffic from the known problem area and/or advise CalTrans to activate the
changeable message sign on I-40 to warn motorists of the dangerous condition after
receiving notice of the condition via the NWS advisory. During discovery, CHP served
special interrogatories seeking the factual basis for plaintiffs’ claims, including what
evidence existed that CHP had actual or constructive notice of the brownout conditions a
sufficient time prior to the accidents to take protective measures.
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CHP moved for summary judgment on February 10, 2012. The motion was
supported by a separate statement of material facts and an index of exhibits. The motion
relied upon plaintiffs’ responses to special interrogatories, arguing that plaintiffs lacked
evidence to establish CHP knew or should have known of the brownout condition in time
to take preventative measures. Alternatively, CHP maintained that it was immune from
liability because the accident was caused by the effect of the weather on the use of the
highway, which was readily apparent to any motorist using reasonable care. (Gov. Code,
§ 831.)
Plaintiffs filed their opposition to motion for summary judgment on April 16,
2012. They also filed a separate statement of material facts, an index of exhibits, and a
request for judicial notice of records of the National Climatic Data Center. Plaintiffs
admitted they had no evidence of actual notice; however, they argued that CHP had
constructive notice of the situation because of the “prior instances of sand blowing in the
air, onto and over the I-40 in the area of mile marker 25”; the fact that Officer Fredricks
was aware of the wind, and if he had patrolled I-40 at the beginning of his shift he would
have become aware of the dangerous condition; and NWS’s advisory at 1:27 a.m. on
November 9, 2008, regarding the dangerous condition. Plaintiffs offered reports of prior
dust-related accidents occurring between 2005 and 2007 within five miles of the Wilson
accident. They also offered the expert declarations of Jay Rosenthal, a meteorologist, and
Thomas Ganz, a former CHP officer. CHP objected to most of these declarations as
irrelevant, speculative, and beyond the expertise of either witness.
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The trial court sustained most of CHP’s objections to the expert witness
declarations and granted the motion for summary judgment on May 3, 2012. The court
found that CHP did not have “actual or constructive notice of the dangerous condition
within the meaning of Government Code section 835.” The court also found that CHP
was immune from liability under Government Code section 831 on the ground that the
accident was caused by the effect of weather on the use of a highway. CHP moved for
and was awarded costs in the amount of $13,902.75. Judgment was entered on
August 29, 2012.
II. STANDARD OF REVIEW
“Summary judgment is appropriate when all of the papers submitted show there
are no triable issues of any material fact and the moving party is entitled to a judgment as
a matter of law. [Citations.] ‘“The purpose of a summary judgment proceeding is to
permit a party to show that material factual claims arising from the pleadings need not be
tried because they are not in dispute.” [Citations.]’ [Citations.]
“A defendant moving for summary judgment has the burden of showing the
plaintiff’s causes of action have no merit. [Citation.] A defendant meets this burden if it
makes a prima facie showing that one or more elements of each cause of action cannot be
established or is subject to a complete defense. [Citation.] If the defendant makes this
showing, the burden shifts to the plaintiff to produce evidence demonstrating the
existence of a triable issue of material fact. [Citations.]
“We review the entire record de novo, considering ‘“all the evidence set forth in
the moving and opposition papers . . . .”’ [Citation.] We disregard evidence to which a
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sound objection was made but consider any evidence to which no objection or an
unsound objection was made. [Citations.]
“‘“[W]e strictly construe the moving party’s evidence and liberally construe the
opposing party’s and accept as undisputed only those portions of the moving party’s
evidence that are uncontradicted.” [Citation.] “. . . ‘Any doubts about the propriety of
summary judgment . . . are generally resolved against granting the motion, because that
allows the future development of the case and avoids errors.’” [Citation.]’ [Citation.]”
(Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal. App. 4th 133, 136-137 [Fourth Dist.,
Div. Two].)
III. ANALYSIS
A. Dangerous Condition of Public Property
Under the Government Claims Act, “there is no common law tort liability for
public entities in California; such liability is wholly statutory. [Citations.]” (In re
Groundwater Cases (2007) 154 Cal. App. 4th 659, 688.) Plaintiffs’ complaint relied on
Government Code section 835, which makes a public entity liable for a dangerous
condition of public property.
Specifically, “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
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dangerous condition; or [¶] (b) The public entity had actual or constructive notice of
the dangerous condition . . . a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.” (Gov. Code, § 835, italics added.)
“‘Dangerous condition’ means a condition of property that creates a substantial (as
distinguished from a minor, trivial or insignificant) risk of injury when such property or
adjacent property is used with due care in a manner in which it is reasonably foreseeable
that it will be used.” (Gov. Code, § 830, subd. (a); see also Gov. Code, § 830.2.) “The
existence of a dangerous condition is ordinarily a question of fact . . . but it can be
decided as a matter of law if reasonable minds can come to only one conclusion.
[Citation.]” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal. 4th 139,
148; see also City of San Diego v. Superior Court (2006) 137 Cal. App. 4th 21, 28.)
With respect to public streets, courts have observed that “any property can be
dangerous if used in a sufficiently improper manner. For this reason, a public entity is
only required to provide roads that are safe for reasonably foreseeable careful use.
[Citation.] ‘If [] it can be shown that the property is safe when used with due care and
that a risk of harm is created only when foreseeable users fail to exercise due care, then
such property is not “dangerous” within the meaning of [Government Code] section 830,
subdivision (a).’ [Citation.]” (Chowdhury v. City of Los Angeles (1995) 38 Cal. App. 4th
1187, 1196.)
B. Notice
A public entity had actual notice of a dangerous condition “if it had actual
knowledge of the existence of the condition and knew or should have known of its
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dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity had constructive
notice of a dangerous condition “only if the plaintiff establishes that the condition had
existed for such a period of time and was of such an obvious nature that the public entity,
in the exercise of due care, should have discovered the condition and its dangerous
character. . . .” (Gov. Code, § 835.2, subd. (b).)
In granting CHP’s motion for summary judgment, the trial court found that CHP
did not have “actual or constructive notice of the dangerous condition within the meaning
of Government Code section 835.” CHP primarily relied upon plaintiffs’ answers to
special interrogatories seeking all facts which support the claim that CHP had notice of
the dangerous condition on I-40. According to plaintiffs’ responses, they could not
establish that CHP had actual notice of hazardous visibility conditions at the accident
scene prior to the chain of collisions. However, they claimed CHP had constructive
notice based on the NWS’s advisory issued at 1:27 a.m., traffic collisions that occurred
around the same area in previous years as a result of dust storms, and Officer Fredricks’s
failure to arrive at the area, his assigned beat, prior to the first reported collision. We
consider each fact relied upon by plaintiffs.
Plaintiffs argued that “CHP should be monitoring the [NWS] advisories for high
winds in the Dagget-Barstow area.” According to their expert, Jay Rosenthal, this
information would be “immediately disseminated to the public through various means,
including . . . phone dissemination to . . . state agencies including . . . the CHP.
Furthermore, Mr. Rosenthal declared this data is “accessible by public agencies” and “it
must be concluded that . . . CHP had direct access to information that would have warned
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of a potentially hazardous wind and visibility condition on I-40.” He added that if CHP
fails to use the NWS advisories of hazardous weather, “then the logical conclusion is that
there will unfortunately likely be more needless accidents and loss of life in areas where
state agencies know brownouts are likely to occur during certain weather events.”
Regarding NWS’s 1:27 a.m. advisory, we note that it warned of strong winds
“FOR PORTIONS OF SOUTHEAST CALIFORNIA AND PORTIONS OF
SOUTHERN NEVADA,” “INCLUDING THE CITIES OF . . . BISHOP . . .
INDEPENDENCE . . . LONE PINE . . . BARSTOW . . . DAGGETT . . . FORT IRWIN.”
More specifically, the advisory noted that winds would be “BETWEEN 25 AND 35
MPH AND GUSTS AROUND 45 MPH . . . .” By 3:46 a.m., NWS updated its warning
of “GUSTY WINDS” for “THE SOUTHERN PART OF THE OWENS VALLEY AND
INTO NORTHWEST SAN BERNARDINO COUNTY.”
In response to plaintiffs’ claim that the advisory provided CHP with notice, CHP
pointed out at the trial level and on appeal that these advisories failed to identify any
current condition, specific time, or even a specific location (such as I-40) of this
potentially hazardous condition. The area encompassing southeast California, northwest
San Bernardino County, and the cities of Bishop, Independence, Lone Pine, Barstow,
Daggett, and Fort Irwin is very large and there are a limited number of CHP officers on
patrol in that area. While there is no evidence that CHP actually received the NWS
advisories, even if it did, these warnings did not constitute actual notice to CHP of a
dangerous condition of public property at the exact location of the Wilson accident.
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Regardless of actual notice, plaintiffs asserted that CHP had constructive notice of
the dangerous condition because of the history of sandstorms on I-40, along with the
traffic collisions that occurred in the last few years within a few miles of the Wilson
accident due to sandstorms. We disagree. There is no legal support for plaintiffs’ view
that constructive notice requires only that a public entity must have had prior knowledge
of the type of hazard, as opposed to the specific hazard, that caused the plaintiffs’ injury.
In State of California v. Superior Court (Rodenhuis) (1968) 263 Cal. App. 2d 396, the
plaintiff was injured when he stepped on hot coals (the remains of a fire pit) covered by
sand at a state beach. (Id. at p. 398.) The state moved for summary judgment on the
ground it had been unaware of the coals. (Ibid.) The trial court denied the motion, but
the appellate court issued a writ prohibiting the lower court from proceeding with the
trial. (Id. at pp. 397, 401.) Although the state knew that other people had been burned
under similar circumstances in the past, the court held as a matter of law this was not
enough to show the state had constructive notice of the particular hazard that had injured
the plaintiff. (Id. at p. 400.) The same is true here. There is no evidence that, on a
specific day or days each year, at a specific time, and in a specific area, dangerous
conditions exist on I-40. None of the prior accidents referenced by plaintiffs occurred on
the same calendar date, time and exact location as the Wilson accident. The fact that
sandstorms have caused accidents on I-40 in the past is not enough to show that CHP had
constructive notice of the particular hazard that injured Stephen Wilson and claimed the
life of Faith Wilson.
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Nonetheless, plaintiffs cite the case of Erfurt v. State of California (1983) 141
Cal. App. 3d 837 [Fourth Dist., Div. Two] (Erfurt) and contend that “[h]ere, as in Erfurt
. . . the court must find that ‘[u]nder such circumstances the jury could reasonably find
constructive notice of the dangerous condition.’” In Erfurt, the plaintiff was driving on a
freeway when she reached the crest of an uphill climb and was suddenly looking directly
into the sun. (Id. at p. 840.) Ahead, (1) the three-lane freeway split into a “Y,” (2) a
concrete pillar that supported an overpass was in the center of the “Y,” and (3) a “V”
shaped guardrail surrounded that pillar. (Id. at p. 841.) As a result of her difficulty in
seeing, the plaintiff was unable to stay in her lane and struck the guardrail in front of the
pillar. An officer investigating two related accidents concluded they had been caused by
the glare of the sun. (Ibid.) The plaintiff sued the state, and a jury determined the state
was 60 percent responsible for the accident and the plaintiff was 40 percent responsible.
(Id. at p. 840.)
On appeal, we identified the dangerous condition as “the effect of blinding
sunlight combined with improper channelization and the lack of devices to properly guide
and warn a driver around an object in the middle of a freeway.” (Erfurt, supra, 141
Cal.App.3d at p. 846.) As a result of the hill just before the “Y,” a driver could be in the
shade one moment and looking up the incline directly into the sun the next. For about 20
days a year and about 15 to 25 minutes during those days, the sun was in a position to
affect driver vision. (Id. at p. 842.) With respect to the issue of constructive notice of the
dangerous condition, we stated: “While the particular dangerous condition in this case
existed only 20 some days of the year, it had been in existence for over 10 years, since
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the construction of the highway in 1966. Under such circumstances the jury could
reasonably find constructive notice of the dangerous condition. ‘It is well settled that
constructive notice can be shown by the long continued existence of the dangerous or
defective condition, and it is a question of fact for the jury to determine whether the
condition complained of has existed for a sufficient time to give the public agency
constructive notice. [Citations.]’ [Citations.]” (Id. at pp. 844-845, fn. omitted.) In
contrast to the facts in Erfurt, here there is no permanent defect in the design of the
highway. The only dangerous condition of I-40, the wind blowing dust over the
highway, is transitory and has nothing to do with the design of the highway itself.
Likewise, we find plaintiffs’ reliance on Straughter v. State of California (1976)
89 Cal. App. 3d 102, 109-111 (Straughter) misplaced. In Straughter, the evidence showed
constructive notice of ice on roadway where the state policy required continuous
patrolling during freezing temperatures. Like Erfurt, Straughter involved a specific
location on a road where ice was known to form under certain conditions, creating a
hazard not readily visible to drivers approaching the summit. The Straughter court found
that highway maintenance personnel had failed to follow normal procedures to spread
urea on the pavement in that area before dawn in anticipation of freezing temperatures.
(Straughter, supra, at p. 110.) Witnesses testified there were patches of ice in the area at
least 30 minutes before the accident, the maintenance supervisor admittedly drove
through the area an hour earlier and did not check the eastbound lanes for ice (id. at p.
110), and it was undisputed that 45 minutes before the accident the supervisor and “the
sanding crew were less than a mile from the scene of the accident but had ceased the
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continuous inspection, temperature monitoring, patrolling and application of abrasives to
the shaded eastbound lanes, as required by the manual.” (Id. at p. 111.) Here, there was
no known hazard at a specific location, nor was CHP tasked with patrolling the I-40 for
such hazard.
Finally, plaintiffs’ claim that, had Officer Fredricks been diligent in arriving at his
assigned beat he would have timely discovered the dangerous condition of I-40, is
speculative at best. Plaintiffs assume that dust storms were occurring at the specific
location of the Wilson accident prior to the Wilson accident. However, there is no
evidence in the record to that effect. There is simply no evidence that if Officer Fredricks
had been driving on I-40 in the specific area of the Wilson accident prior to its
occurrence, he would have seen the dust storms. Plaintiffs’ claim to the contrary is based
on mere speculation. The sand storms were transient in nature.
Given the lack of any evidence (direct or circumstantial) that the specific danger
was obvious, or that the situation had existed for any particular length of time, precisely
at the location of the Wilson accident prior to its occurrence, there is no basis to conclude
that the timing of Officer Fredricks’s arrival could have altered the tragic course of
events. We hold, as a matter of law, that the requirements of constructive notice, as
defined in Government Code section 835.2, subdivision (b), were not met.
C. Immunity
Government Code section 831 provides: “Neither a public entity nor a public
employee is liable for an injury caused by the effect on the use of streets and highways of
weather conditions as such. Nothing in this section exonerates a public entity or public
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employee from liability for injury proximately caused by such effect if it would not be
reasonably apparent to, and would not be anticipated by, a person exercising due care.
For the purpose of this section, the effect on the use of streets and highways of weather
conditions includes the effect of fog, wind, rain, flood, ice or snow but does not include
physical damage to or deterioration of streets and highways resulting from weather
conditions.” (Italics added.)
Here, the trial court found that CHP was immune from liability under Government
Code section 831 on the ground that the accident was caused by the effect of weather on
the use of a highway. On appeal, plaintiffs contend the trial court “improperly concluded
that [they] could not prove that the weather condition would not be reasonably apparent
to, and would not be anticipated by, a person exercising due care.” They argue, “[i]t is
not the weather that caused [their] harm. It was sand found in the desert, picked up by
the winds, causing zero visibility on the road that made I-40 dangerous on November 9,
2008.” The dispositive issue of plaintiffs’ contention is whether the circumstances
surrounding the reduced visibility caused by the blowing sand (dangerous) condition of I-
40 at the point in question failed to fulfill the mandate recited in the statute such as is
necessary to prevent the weather immunity from attaching.
Turning to the record, plaintiffs offered the deposition testimonies of various
drivers involved in the collisions. They agreed that visibility on I-40 was intermittent due
to the sandstorm. One witness stated that “when the dust is blowing, it will clear from
five seconds to the next five seconds. In other words, a gust will blow in, and the dust
will come, and you won’t— you won’t be able to see beyond the front end of your car,
15
your vehicle. And that’s how thick it was intermittently. And then that would diminish,
and then you could see ahead of you. That’s why it makes it kind of difficult to
describe.” It is uncontested there were strong winds throughout the I-40 corridor and that
drivers encountered blowing dust and reduced visibility prior to the Wilson accident
scene. In fact, some of the drivers anticipated the danger of blowing dust and reduced
their speeds appropriately. In a nutshell, the situation involved strong winds causing a
sand storm, the sand storm reducing visibility, some drivers reducing their speed in
response, and the failure of some drivers to do the same resulting in collisions and
individuals getting injured.
Contrary to the cases cited by plaintiffs, the facts in this case do not present a
“concealed trap” situation where the danger would not be reasonably apparent to a person
exercising due care. (Allyson v. Department of Transportation (1997) 53 Cal. App. 4th
1304, 1318 [Fourth Dist., Div. Two] (Allyson); Flournoy v. State of California (1969)
275 Cal. App. 2d 806, 809-810, 811 (Flournoy).) While the immunity defense applied in
Allyson, it did not apply in Flournoy.
In Allyson, we applied the weather immunity defense where the plaintiff was
injured by a car that lost control on an icy road. (Allyson, supra, 53 Cal.App.4th at pp.
1306-1307.) We specifically found that the state had no mandatory duty to post signs
that warned of transitory (icy) conditions or to perform the service of inspecting the roads
that were perfectly adequate other than the influence of the weather. (Id. at pp. 1319-
1321.) We concluded that ice on the road was subject to the weather immunity and did
not constitute a concealed trap covered by the narrow exception in Government Code
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section 831. (Allyson, supra, at pp. 1319-1321.) The same is true in this case. There was
no condition of I-40 other than the wind causing a sand storm which obscured visibility
that made conditions hazardous.
In Flournoy, the state constructed a bridge over water that would cause moisture to
condense on the bridge and then freeze in cold weather. (Flournoy, supra, 275
Cal.App.2d at p. 808.) Many accidents occurred as a result of the icy condition on the
bridge, one causing the death of Flournoy, whose heirs sued, claiming the state
maintained the bridge in a dangerous condition. (Id. at pp. 807-808.) The state asserted
design immunity and the trial court granted summary judgment in its favor. Plaintiffs
appealed, and the state argued that design immunity prevails over any liability for a
dangerous condition of public property. (Id. at p. 811.) The appellate court disagreed,
concluding that design immunity is limited to a design-caused accident. (Ibid.) Where
the state is actively negligent in creating the dangerous condition (the design of the
bridge), and passively negligent in failing to warn of the dangerous condition, such
passive negligence was independent of the negligent design. (Ibid.)
“The [legislative] intent . . . ‘is to impose liability only when there is a substantial
danger which is not apparent to those using the property in a reasonably foreseeable
manner with due care. [Citations.]’ [Citation.]” (Biscotti v. Yuba City Unified School
Dist. (2007) 158 Cal. App. 4th 554, 558.) Thus, “premises liability may not be imposed on
a public entity when the danger of its property is readily apparent.” (Id. at p. 560.) As
noted above, drivers on I-40 were aware that strong winds were blowing and reducing
visibility. Most slowed down or stopped their vehicles. Unfortunately, some did not. In
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short, the material fact upon which the motion for summary judgment (and the appeal)
can be disposed, i.e., the availability of Government Code section 831, was simple and
undisputed.
D. The Trial Court’s Evidentiary Rulings
According to plaintiffs, “[t]o recite and raise objections to all of the objections
raised by [CHP] to [plaintiffs’] expert witness declarations would be oppressive and an
imposition on the resources of the court.” Thus, plaintiffs’ sole challenge to the court’s
evidentiary rulings centers on the recent decision in Cole v. Town of Los Gatos (2012)
205 Cal. App. 4th 749 (Cole). Essentially, plaintiffs claim that CHP waived its objections
to plaintiffs’ expert witness declarations because the objections cited Evidence Code
section 800 (lay opinion) and not Evidence Code section 801 (expert opinion).
In Cole, a park attendant who was struck by a vehicle brought an action against the
town alleging a dangerous condition. (Cole, supra, 205 Cal.App.4th at p. 754.) At the
time of the accident, the plaintiff had parked her vehicle along a gravel strip between the
park and the edge of a road. While loading a bicycle into her trunk, a driver who had
been drinking alcohol veered off the road and collided with her. (Ibid.) The town was
granted summary judgment on the ground that the plaintiff was unable to establish any of
the stated characteristics of the property was the cause of her injuries. (Ibid.) The
appellate court reversed, holding that “the evidence before the trial court raised numerous
issues of fact concerning the existence of a dangerous condition and a causal relationship
between the characteristics of the property and plaintiff’s injuries.” (Ibid.)
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In Cole, the defendant objected to plaintiff’s expert declaration on grounds of
relevance, speculation and conclusoriness. (Cole, supra, 205 Cal.App.4th at pp. 763-
764.) On appeal, the appellate court observed that the latter two characterizations support
exclusion “on the ground of improper opinion.” (Id. at p. 764, original italics.) The
admissibility of expert opinion is governed by Evidence Code section 801; however, the
defendant failed to cite to that statue. The appellate court held that “[i]nsofar as [the
defendant] asserted the opinion rule, its failure to make a coherent argument in support of
the objection should be viewed as an abandonment of that objection.” (Cole, supra, at p.
764.)
Here, unlike in Cole, CHP’s objections to plaintiffs’ expert declarations were more
specific and cited relevant case law under Evidence Code section 801. For example,
plaintiff’s expert, Thomas Ganz, stated: “It is further my professional opinion, to a
reasonable degree of certainty, that had the CHP officers timely reported to their beats on
I-40 that they would have identified the dangerous conditions and been able to warn the
motoring public, including the Plaintiffs about the dangerous conditions.” CHP objected
as follows: “Lack of foundation; Lack of personal knowledge (Evid. Code, § 702.);
Misstates facts; No preliminary facts (Evid. Code, § 400-402.); Hearsay (Evid. Code,
§ 1200.); Assumes facts not in evidence; Inadmissible opinion (Evid. Code, § 800(a).);
Speculation. [¶] An expert declaration may not be based on assumptions of fact that are
without evidentiary support or based on factors that are speculative or conjectural, for
then the opinion has no evidentiary value and does not assist the trier of fact. (Garibay v.
Hemmat (2008) 161 Cal. App. 4th 735, 743, citations omitted.) [¶] Self-Serving, Lacking
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Explanation. Plaintiff may not ‘manufacture a triable issue of fact through use of an
expert opinion with self-serving conclusions, devoid of any bias, explanation or
reasoning.’ (McGonnell v. Kaiser Gypsum Company, Inc., et al. (2002) 98 Cal. App. 4th
1098, 1106.) An expert witness ‘may not himself create the facts upon which the
conclusion is based.’ (Leslie G. v. Perry & Associates (1996) 43 Cal. App. 4th 472, 487,
citations omitted.) [¶] Improper legal conclusion. (Guthrey v. State of California (1998)
63 Cal. App. 4th 1108, 1120.) [affidavits and declarations must cite evidentiary facts, not
legal conclusions or ‘ultimate’ facts].” This objection was repeated in numerous
objections to plaintiffs’ experts’ declarations.
Focusing on the level of detail provided in the objections to expert declarations,
the contrast between what CHP provided versus what was provided in the Cole case leads
us to only one conclusion; plaintiffs’ reliance on Cole is misplaced. Despite CHP’s
reference to Evidence Code section 800 and not Evidence Code section 801, the detail of
reasoning offered by CHP was sufficient “to make a coherent argument in support of the
objection.” (Cole, supra, 205 Cal.App.4th at p. 764.)2
E. Costs
On May 24, 2012, CHP filed its Memorandum of Costs in the amount of
$15,823.75. Plaintiffs moved to tax/strike costs. CHP stipulated to reduce its costs by
$1,921.00, representing $150 for jury fees and $1,771 for the deposition of expert
2 To the extent plaintiffs’ reply brief raises any new arguments challenging the
trial court’s evidentiary rulings on CHP’s objections of plaintiffs’ experts’ declarations,
they are forfeited. (Estate of Bonzi (2013) 216 Cal. App. 4th 1085, 1106, fn. 6, [“we do
not consider arguments raised for the first time in a reply brief”].)
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Timothy Cheek. Following the hearing on plaintiffs’ motion, the trial court awarded
CHP costs in the amount of $13,902.75.
On appeal, plaintiffs contend the trial court abused its discretion in failing to
consider reducing CHP’s costs. Additionally, plaintiffs claim they met their burden of
proving that the deposition costs attributed to coroner, Teri Lay ($351), and traffic
engineer, Weston Pringle ($1,008), along with the cost of CHP’s answer to a cross-
complaint ($395) were not related or necessary to the defense of plaintiffs’ action.
Code of Civil Procedure section 1032, subdivision (b) provides: “Except as
otherwise expressly provided by statute, a prevailing party is entitled as a matter of right
to recover costs in any action or proceeding.” (See also Michell v. Olick (1996) 49
Cal. App. 4th 1194, 1198.) A “prevailing party” includes “the party with a net monetary
recovery, a defendant in whose favor a dismissal is entered, a defendant where neither
plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who
do not recover any relief against that defendant. . . .” (§ 1032, subd. (a)(4).)
According to plaintiffs, CHP did not need to depose Teri Lay, the coroner who
examined the decedents of the Ramirez family, because Lay did not examine Faith
Wilson. CHP replies that (1) the “co-plaintiffs dismissed their claims in exchange for a
waiver of costs before the Court ruled on the motion for summary judgment on May 3,”
and (2) plaintiffs noticed Lay’s deposition. We agree with CHP and conclude that the
award of this cost is appropriate. Regarding the deposition of Weston Pringle, a traffic
engineer retained by defendant Midway Transportation, Inc. (Midway) for claims it
brought against CHP, plaintiffs contend “[t]he deposition did not include any of the
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issues raised by [them] as [they] had a retained traffic engineer expert witness of their
own.” While CHP agrees that Pringle was retained by defendant Midway, it asserts that
“the plaintiffs and Midway largely relied on the same evidence in opposing the motions
for summary judgment by CHP and CalTrans.” Again, we agree with CHP and do not
disturb the award of this cost.
Finally, plaintiffs claim the cost of CHP’s answer to Midway’s cross-complaint
was not reasonably necessary to the defense of plaintiffs’ claims. In response, CHP cites
Nelson v. Anderson (1999) 72 Cal. App. 4th 111 (Nelson) and argues that “the trial court
did not have authority to disallow or reduce costs that defendant CHP is entitled to
recover as a matter of right.”
In Nelson, plaintiff Nelson and two other plaintiffs sued actress Loni Anderson
and her attorneys, Musick, Peeler & Garrett (MPG), for interference with contract and
legal malpractice, among other claims. (Nelson, supra, 72 Cal.App.4th at p. 117.) MPG
settled with the two other plaintiffs, but not Nelson, who ultimately prevailed against
Anderson but not against MPG. (Id. at pp. 117, 122.) MPG sought costs against Nelson,
and Nelson filed a motion to strike the costs. (Id. at p. 122.) The trial court granted costs
in favor of MPG but reduced the amount awarded by two-thirds: “As the court explained
in its minute order granting the motion [to strike costs], it reduced MPG’s pretrial costs
‘because . . . [MPG] settled with the other two Plaintiffs, and . . . one of the terms of
those settlements was that MPG would waive its right to collect costs; it would be unfair
to Plaintiff Nelson, and would constitute an inappropriate windfall to MPG to allow it to
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collect all of its pre-trial costs from Nelson.’” (Id. at p. 128.) MPG appealed the order
reducing costs by two-thirds.
The appellate court concluded that MPG was a prevailing party: “Since MPG was
a defendant against whom Nelson obtained no relief, MPG was the prevailing party.
(Code Civ. Proc., § 1032, subd. (a)(4).) ‘Except as otherwise expressly provided by
statute, a prevailing party is entitled as a matter of right to recover costs in any action or
proceeding.’ (Code Civ. Proc., § 1032, subd. (b).) This means that the prevailing party is
entitled to all of his costs unless another statute provides otherwise. [Citation.] Absent
such statutory authority, the court has no discretion to deny costs to the prevailing party.
[Citation.] [¶] Code of Civil Procedure section 1033 enumerates allowable costs and
costs which are not allowable, and restricts allowable costs to those reasonably necessary
to the conduct of the litigation. We have found no statutory authority for reducing
allowable costs for any of the reasons advanced by the trial court. ‘A court should be
cautious in engrafting exceptions onto the clear language of Code of Civil Procedure
section 1032.’ [Citation.]” (Nelson, supra, 72 Cal.App.4th at pp. 128-129.) Our
colleagues in Division Seven of the Second District reversed the two-thirds reduction
ordered by the trial court.
Here, plaintiffs agree there is “no statutory authority or case law for an across the
board reduction in costs based on the number of plaintiffs involved in litigation . . . .”
However, they argue the “necessity or reasonableness of costs” should govern whether
certain costs are recoverable. According to plaintiffs, filing an answer to Midway’s
cross-complaint was not reasonably necessary to the defense of plaintiffs’ claims. We
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disagree. But for plaintiffs’ complaint, there would not have been a cross-complaint by
Midway against CHP. As CHP noted, “the plaintiffs and Midway largely relied on the
same evidence in opposing the motions for summary judgment by CHP and CalTrans.”
Regardless of plaintiffs’ dismissal of their action against Midway, the cross-action
remained viable with claims against CHP that were identical to plaintiffs’ claims against
CHP. Given this similarity, the trial court acted within its discretion by allowing CHP to
recover its cost of filing an answer to Midway’s cross-complaint.
IV. DISPOSITION
The judgment is affirmed. Defendant and Respondent shall recover its costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.
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