Menges v. Dep't of Transp., G057643 consol. w/ G058148

• Court: California Court of Appeals
• Writing for the Court: O'LEARY, P. J.
• Citation: 273 Cal.Rptr.3d 231,59 Cal.App.5th 13
• Parties: Kevyn MENGES, an Incompetent Person, etc., Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent.
• Decision Date: 24 December 2020
• Docket Number: G057643 consol. w/ G058148

59 Cal.App.5th 13
273 Cal.Rptr.3d 231

Kevyn MENGES, an Incompetent Person, etc., Plaintiff and Appellant,
v.
DEPARTMENT OF TRANSPORTATION, Defendant and Respondent.

G057643 consol. w/ G058148

Court of Appeal, Fourth District, Division 3, California.

Filed December 24, 2020

OPINION

O'LEARY, P. J.

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Kevyn Menges suffered catastrophic injuries in a motor vehicle accident. Menges, through her guardian ad litem Susan Menges, sued the Department of Transportation (Caltrans) for its negligent construction of an interstate off-ramp. Caltrans moved for summary judgment, asserting design immunity. The trial court granted Caltrans's motion for summary judgment. On appeal, Menges asserts the court erred because design immunity should not apply since the approved design plans were unreasonable, and the construction of the interstate off-ramp did not match the previously approved design plans. She also urges reversal because the court denied her oral request for a continuance at the summary judgment hearing. Finally, she challenges the court's award of costs, arguing Caltrans's

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Code of Civil Procedure section 998 offer was unreasonable and invalid, and a portion of the cost award for expert witness fees should have been disallowed. None of Menges's arguments have merit, and we affirm the judgment.

FACTS

I. Accident

On February 6, 2012, at approximately 10:40 in the morning, Menges was a passenger in a friend's car, headed home to San Clemente. It was daylight, the weather was clear, the pavement was dry, and conditions were normal. The women were waiting for the green light to start a left-hand turn from

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westbound Avenida Pico onto the on-ramp to southbound Interstate 5 (I-5 freeway). After the light turned green and they began their left turn, truck driver Gerald Pesicka struck them broadside with in his tractor-trailer truck.

The truck was traveling in the number four lane on the I-5 freeway when it took the Avenida Pico exit at 55-60 miles per hour.¹ A witness driving behind the truck did not see any brake lights as it continued down the quarter-mile long off-ramp. Pesicka passed another vehicle halfway down the off-ramp. That witness saw the truck swerve to the left, straddle a curb, and then sideswipe a vehicle stopped at the bottom of the off-ramp waiting to turn. The truck then crashed through a light standard, traveled into the intersection, and broadsided the car carrying Menges and several other vehicles. A witness watched the accident and reported, "he didn't hear any horns, down shifting, nor did he hear any skidding or screeching as [the truck] continued down the ramp."

At the scene, Pesicka denied any recollection of the accident or the moments leading up to it. He told the California Highway Patrol officer interviewing him he was headed to Oceanside to pick up a load of cargo and had no reason to exit the freeway at Avenida Pico. Pesicka's drug and alcohol tests were negative. Pesicka suffered a major stroke a day later, was hospitalized for emergency surgery, and ultimately died after he was discharged.

II. Lawsuit and Procedural History

On May 4, 2012, Menges's guardian ad litem filed suit against Pesicka and others, eventually naming Caltrans. As to Caltrans, Menges asserted her injuries resulted from a dangerous condition of public property. She contended "confusing" and "deceiving" pavement striping, signage on the I-5 freeway at the top of the Avenida Pico off-ramp, and striping of the city street intersection at the bottom, caused the accident. She further alleged the striping and signage issues caused Pesicka to "mistakenly and unintentionally" exit the I-5 freeway and careen down the off-ramp, leading to Menges's significant injuries.

III. Caltrans's Motion for Summary Judgment

In July 2018, Caltrans moved for summary judgment based on the statutory design immunity defense. It provided evidence the last improvement project

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at I-5 and Avenida Pico was completed on September 10, 2008. That project was confirmed to have been built in compliance

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with a set of Caltrans design plans approved for use in September 2005. The project included new pavement delineation, signage elements including the Avenida Pico off-ramp overhead sign and a "Must Exit" sign, and gore point markings and lane striping on the road at the top and base of the off-ramp.

In support of its motion, Caltrans submitted the declaration of Ronald Nelson, a traffic engineer expert witness, who opined as to the reasonableness of the design and construction of I-5 at Avenida Pico. Menges opposed the motion and submitted declarations from two of her own civil engineers critical of the design, Brad Avrit and Edward Ruzak, and which Caltrans objected to.

Nelson submitted a reply declaration to rebut a new claim raised by Menges that the 2008 project had not been constructed in accordance with the 2005 design plans. Avrit, then submitted a supplemental declaration, which Caltrans also objected to.

The trial court granted Caltrans's motion for summary judgment. It determined design immunity applied because substantial evidence supported the reasonableness of the design and Menges failed to establish the project was not built according to plans.

Subsequently, Caltrans submitted a memorandum of costs, seeking to recover $66,218.74. A portion of these costs was for expert witness fees accruing after Menges rejected an April 23, 2014, $25,000 settlement offer from Caltrans, made pursuant to Code of Civil Procedure section 998 (998 offer).² The court determined the 998 offer was valid, and ultimately awarded Caltrans $42,926.05 in expert witness fees. This amount included $14,907.30 for Elevate Services to analyze Menges's medical records in anticipation of testimony regarding reasonableness of treatment, insurance adjustments, and damages, as well as $9,608.75 for expert witness Mary Jesko, retained to testify about Menges's life care plan.

The court entered an amended judgment reflecting its cost award. We consolidated Menges's appeals from the grant of summary judgment and the cost award.

DISCUSSION

Menges contends the trial court erred by determining Caltrans was entitled to summary judgment based upon design immunity. Specifically, she asserts

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the doctrine should not apply because the design of the freeway off-ramp was unreasonable, and Caltrans failed to follow the as-built plans. The court did not err.

I. Standard of Review and Pertinent Law

A grant of summary judgment is reviewed de novo, "considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116.) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) The moving party also "bears an initial burden of production to make a prima facie showing of the nonexistence of

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any triable issue of material fact; if he [or she] carries his [or her] burden of production, he [or she] causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." ( Ibid. )

" ‘[T]he normal rules governing a motion for summary judgment, and requiring its denial if any triable issue of fact appears, are not fully applicable [to cases involving design immunity under Government Code section 830.6.] For example, the defendant is not required to prove to the court that the design or plan was in fact a reasonable one. Instead, the defendant is merely required to adduce any "substantial evidence" that a reasonable public employee or legislative body could have approved the plan or design used under [ Government Code section] 830.6. Thus, when the defendant files a motion for summary judgment, the existence of a possible conflict of evidence, as shown by the proof submitted on the motion, will not create a triable issue on this aspect of the defense that can defeat a summary judgment ....’ [Citation.]" ( Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 50-51, 108 Cal.Rptr.2d 198 ( Wyckoff ).) "We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted. [Citations.]" ( Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940, 67 Cal.Rptr.2d 454 ( Grenier ).) "That a plaintiff's expert may disagree does not create a triable issue of fact." ( Id. at p. 941, 67 Cal.Rptr.2d 454.)³

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