Laabs v. City of Victorville (163 Cal. App. 4th 1242, 2008)

Opinion

KING, J.—

I. INTRODUCTION

Plaintiff Amanda Laabs was injured in an automobile collision. She sued various parties, including the County of San Bernardino (the County) and the City of Victorville (the City). As against these governmental entities, she alleged that her injuries were caused by a dangerous condition of public property for purposes of Government Code sections 830 and 835. The City moved for summary judgment, which the court granted. The court subsequently denied the City’s motion for defense costs (pursuant to Code Civ. Proc., § 1038) and expenses incurred in proving matters that plaintiff had denied (pursuant to Code Civ. Proc., § 2033.420). Following the denial of plaintiff’s motion for new trial and the entry of judgment, plaintiff appealed. The City appealed from the court’s denial of its motion for defense costs and expenses.

We affirm both the trial court’s grant of summary judgment as well as its denial of the City’s motion for defense costs and expenses.

II. STATEMENT OF FACTS

The following facts are, in essence, uncontroverted and taken from the evidence submitted by the parties in support of, and in opposition to, the motion for summary judgment.

Ridgecrest Road (Ridgecrest) is a four-lane north/south roadway with a posted speed limit of 55 miles per hour. It intersects with Pebble Beach Drive (Pebble Beach), a two-lane east/west roadway. Westbound Pebble Beach has a stop sign, a painted limit line, and “STOP” painted on the roadway.

Pebble Beach, which has no centerline delineation, passes through a portion of the Spring Valley Lake residential area. Ridgecrest runs along the west side of the Spring Valley Lake development. There is a block wall along the east side of Ridgecrest, just to the south of Pebble Beach. The block wall is about 10 feet east of the curb and runs parallel with Ridgecrest; at its north end, it turns easterly to run along a small portion of the south side of Pebble Beach.

The subject automobile accident occurred when a northbound vehicle on Ridgecrest collided with a westbound vehicle turning left from Pebble Beach onto southbound Ridgecrest. The northbound vehicle, a Porsche Carrera, was driven by James Dimeo. The left-turning vehicle, a Mitsubishi, was driven by Dorothy Specter. The impact occurred within the northbound lanes of Ridgecrest.

In 1996, Ridgecrest was widened to the west. Added were the southbound lanes of Ridgecrest consisting of two 12-foot lanes and a 12-foot-wide two-way left turn lane. The County retained ownership, control, and responsibility for the northbound lanes of Ridgecrest; the City annexed the west side and acquired control and maintenance responsibility for the southbound lanes. The as-built plans show the northbound lanes as being County property and the southbound lanes as being owned and controlled by the City.

At its intersection with Ridgecrest, Pebble Beach has a 6 to 8 percent uphill grade in a westerly direction and a 5 percent downgrade to the north. South of its intersection with Pebble Beach, Ridgecrest is an undulating roadway with a 280-foot vertical curve just to the south of the intersection.

At the time of the accident, the driver of the northbound Porsche, James Dimeo, was accompanied by Jason Moffett and plaintiff. Just before the accident, they planned to go to In-N-Out Burger. Initially, Dimeo proceeded southbound on Ridgecrest towards Bear Valley Highway. His vehicle at times reached a speed of 100 miles per hour. At some point near a church parking lot, Dimeo made a U-turn and began proceeding northbound on Ridgecrest.

Witness Kevin Vidana-Barda testified that as he was proceeding northbound on Ridgecrest, south of the accident site, the Porsche passed him, traveling anywhere from 100 to 120 miles per hour.

Dimeo testified in his deposition that the Mitsubishi “pulled out right in front of’ him. The Mitsubishi was crossing Ridgecrest from westbound Pebble Beach. He did not know how much time passed between the time he first saw the Mitsubishi and the time of impact. He was in the right-hand lane just before the impact. He was able to move his foot to the brake and steer the car into the left-hand lane before impact. He did not know the positions of the vehicles at the time of impact.

Dorothy Specter, the driver of the Mitsubishi, indicated that she stopped at the stop sign, looked both ways and saw nothing coming. She eased forward and again looked both ways and saw nothing coming. She pulled into the intersection to make a left-hand turn to go south on Ridgecrest. Suddenly, a vehicle struck the front of her vehicle. She never saw the other car coming. In a statement to the investigating officer, Specter gave no indication that her line of sight was obstructed.

Dimeo said that he had driven this part of Ridgecrest “every day,” and “hundreds of times.” He normally drives an elevated truck and never had difficulty seeing cars at the Pebble Beach intersection. In the lower Porsche, however, he said he could not see the westbound car at the intersection.

Keith Friedman, an expert, opined that based on his preliminary analysis, the Porsche was going 74 miles per hour at impact. After this initial impact, the Porsche spun around 270 degrees moving in a northwesterly direction. The Porsche partially jumped the western curb of Ridgecrest and slid northerly along the curb, striking and knocking over a light pole; the pole was located on the sidewalk adjacent to the southbound lanes. It had been installed within the City right-of-way, approximately one foot west of the western curb face of Ridgecrest.

Other evidence submitted by way of lay witnesses and expert declarations will be discussed within the context of our analysis.

III. PROCEDURAL BACKGROUND

In her first amended complaint, plaintiff asserts a cause of action for “premises liability” based on the theory, among others, that her injuries were caused by a dangerous condition of public property for purposes of sections 830 and 835. Specifically, plaintiff alleged: “There was inadequate sight distance so that Specter did not perceive the approaching Dimeo vehicle which struck the Specter vehicle. Based upon information and belief, the [City] is responsible for the design, construction, maintenance and conrol [sic] of the southbound lanes of Ridgecrest Road. Based upon information and belief, [County] is responsible for the northbound lanes of Ridgecrest Road. Defendants [City] and [County] were negligent in designing, constructing, maintaining, controlling and otherwise creating and failing to correct dangerous road conditions due to inadequate sight distance and lack of warning signs, devices and signals.”

The City moved for summary judgment on the following grounds: The City did not own or control northbound Ridgecrest, the Ridgecrest-Pebble Beach intersection was not in a dangerous condition as a matter of law, the City is entitled to design immunity under section 830.6, and the City is entitled to immunity for failure to provide traffic or warning signals, signs, markings, or devices under section 830.8.

In addition to opposing the City’s asserted grounds for summary judgment, plaintiff argued that the placement of the light pole, or luminaire, on the west side of Ridgecrest constituted a dangerous condition that contributed to the severity of plaintiff’s injuries.

Following a hearing, the court granted the motion for summary judgment. Subsequently, the court denied the City’s motion for defense costs and expenses.

IV. ANALYSIS

A. Standard of Review

A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s cause of action, or shows that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [107 Cal.Rptr.2d 841, 24 P.3d 493].) The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) “In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted .... [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.]” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261 [112 Cal.Rptr.2d 732].) “ ‘Whether property is in a dangerous condition often presents a question of fact, but summary judgment is appropriate if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used. [Citation ....]’ [Citation.]” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234 [114 Cal.Rptr.2d 151].)

On appeal, “our review is de novo, and we independently review the record before the trial court.” (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652 [92 Cal.Rptr.2d 29].) “The trial court’s stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878 [116 Cal.Rptr.2d 158].)

B. General Overview

A governmental entity is liable for an injury caused by its property if at the time of the injury: (1) the property was in a dangerous condition; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual and/or constructive knowledge of the dangerous condition a sufficient time ahead of the injury so as to take measures to protect against the dangerous condition. (§ 835.)

For the property to be considered in a “dangerous condition,” it must create “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).) A public entity’s “property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.” (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1995 ed.) foil. § 830, p. 299.)

A “design immunity” defense is provided under section 830.6. Under this statute, a public entity is not liable for a dangerous condition of its property if the public entity demonstrates that the injury was caused by property constructed in accordance with an approved plan or design. For the design immunity to apply, there must exist: (1) a causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; and (3) substantial evidence supporting the reasonableness of the plan. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332] (Cornette).)

Initially, we consider whether the alleged dangerousness of the luminaire’s location, raised for the first time in opposition to defendant’s motion for summary judgment, can be considered as a basis for denying the summary judgment motion. As discussed below, we conclude that it cannot.

C. The Plaintiff Cannot Raise the Alleged Dangerousness of the Luminaire for the First Time in Opposition to the Motion for Summary Judgment

The City argues that because plaintiff made no allegations in her complaint that the physical location of the luminaire was a basis for dangerous condition liability, we cannot consider the issue in determining the propriety of the trial court’s grant of summary judgment. In her reply brief, plaintiff argues that the placement of the luminaire, while not specifically referenced, is “closely tied to the City’s dangerous condition liability which was clearly alleged in plaintiff’s complaint.” She further submits that the complaint is only one of the “pleadings” that define the issues to be addressed at the motion for summary judgment.

Plaintiff’s first amended complaint alleges; “Plaintiff was a passenger in a vehicle northbound on Ridgecrest Road driven by James Dimeo, Jr., in the vicinity of its intersection with Pebble Beach Road in Victorville, unincorporated County of San Bernardino. Another vehicle driven by Dorothy Jean Specter was westbound on Pebble Beach Road stopped at a stop sign before attempting a left turn to go south on Ridgecrest Road. There was inadequate sight distance so that Specter did not perceive the approaching Dimeo vehicle which struck the Specter vehicle. Based upon information and belief, the [City] is responsible for the design, construction, maintenance and conrol [sic] of the southbound lanes of Ridgecrest Road. Based upon information and belief, [County] is responsible for the northbound lanes of Ridgecrest Road. Defendants [City] and [County] were negligent in designing, constructing, maintaining, controlling and otherwise creating and failing to correct dangerous road conditions due to inadequate sight distance and lack of warning signs, devices and signals. The dangerous conditions created an unreasonable risk of injury to persons using the roads and such dangerous conditions were a foreseeable cause of Plaintiff’s injuries.” There is no specific mention of the luminaire or any similar object. The “dangerousness” of the luminaire was first specifically referenced in plaintiff’s opposition to the City’s motion for summary judgment. There, in response to defendant’s separate statement of undisputed facts, plaintiff set forth additional undisputed facts, which included, “[t]he City created another dangerous condition by the installation of light fixtures too close to the roadway.” The evidentiary support is the declaration of Howard Anderson. While defendant did not specifically object to this additional undisputed fact, it did assert, both in reply points and authorities and at oral argument on the motion, that the issue was not raised in plaintiff’s pleadings.

“The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]” (Turner v. State of California (1991) 232 Cal.App.3d 883, 891 [284 Cal.Rptr. 349] (Turner).) Thus, a “defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4 [93 Cal.Rptr.2d 820].) “To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [102 Cal.Rptr.2d 813].) “[T]he pleadings ‘delimit the scope of the issues’ to be determined and ‘[t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.’ [Citation.] [Plaintiff’s] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201-1202, fn. 5 [37 Cal.Rptr.3d 863] (Lackner).)

Here, plaintiff did not seek leave to amend her complaint prior to the hearing on the motion for summary judgment. The issue therefore presented is whether her amended complaint can be construed to encompass the issue of the dangerous placement or location of the luminaire.

In Lackner, the plaintiff received personal injuries when skiing at Mammoth Mountain. At the time of the injury, she was standing in a deserted area at the base of an advanced ski run. Cassidy North, a high school snowboarder, was training for the California Nevada Ski and Snowboard Federation State High School Championships. He sped down the run at a high rate of speed and struck the plaintiff. The plaintiff sued Mammoth, among others. She alleged that Mammoth had increased the risk of injury inherent in skiing by failing to enforce and supervise the race participants’ use of ordinary ski runs and by failing to warn its patrons that race participants were permitted to train on ordinary ski runs. Specifically, she alleged “that Mammoth negligently operated, maintained, and controlled the slopes so as to create a dangerous condition. It did so by permitting race participants to practice on runs not designated for training or racing, failing to warn its other patrons that participants were authorized to train on ordinary runs, and failing to take other precautions for the safety of persons using the slope.” (Lackner, supra, 135 Cal.App.4th at p. 1202.) In opposition to Mammoth’s motion for summary judgment, the plaintiff filed a supplemental statement of undisputed facts contending that Mammoth failed to post warning signs in the area of the collision where it generally posted such signs. On appeal the plaintiff argued for the first time that Mammoth should have posted signs warning individuals to slow down as they approached the flat area. With little discussion, the appellate court refused to consider the issue. A statement of undisputed facts, the court stated, “is not a substitute for an amendment of the complaint. [Citation.] Because [the plaintiff’s] complaint fails to allege facts that give rise to a duty to post such signs, she may not assert Mammoth’s breach of that duty.” (Id. at pp. 1201-1202, fn. 5.)

In Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621 [32 Cal.Rptr.3d 266] (Oakland Raiders), the plaintiff sued the National Football League on various theories, including breach of fiduciary duty. In response to the defendant’s motion for summary adjudication, the plaintiff submitted three new or additional arguments as to how the defendant breached its fiduciary duty. Although the merits of the three additional arguments were considered by both the trial and appellate courts, the appellate court stated, “the pleadings set the boundaries of the issues to be resolved at summary judgment. [Citations.] A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ [Citations.] A summary judgment or summary adjudication motion that is otherwise sufficient ‘cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdecla-rations are no substitute for amended pleadings.’ [Citation.] Thus, a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. [Citations.]” (131 Cal.App.4th at p. 648.)

In the context of governmental entity liability, numerous courts have addressed situations where the complaint adds factual allegations that arguably are not encompassed by the plaintiff’s government tort claim. Although the procedural setting is different, such cases are analogous and instructive here.

In Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 [253 Cal.Rptr. 587] (Fall River), the plaintiff was a student at Fall River Junior-Senior High School. He received injuries when a steel door of a building struck his head. In his governmental claim he asserted that the door was “in a dangerous and defective condition” for several reasons, one of which was that it closed with excessive force. After the filing of the original complaint, the plaintiff filed an amended complaint alleging that school district personnel negligently failed to supervise students who were engaged in horseplay, and that he was injured as a result. The defendant moved for judgment on the pleadings based on the proposition that the cause of action for negligent supervision was not contained within the claim. The trial court denied the motion. The appellate court reversed. In doing so, the court stated that the “cause of action patently attempts to premise liability on an entirely different factual basis than what was set forth in the tort claim.” (Id. at p. 435.)

In Donohue v. State of California (1986) 178 Cal.App.3d 795 [224 Cal.Rptr. 57] (Donohue), the plaintiff alleged in his claim that the State of California was negligent in allowing an uninsured motorist to take the driving test. In his complaint, he contended that the state was negligent by failing to instruct, direct, and control the driver in operating the vehicle. In affirming the trial court’s grant of the motion for judgment on the pleadings, the court stated, “[tjhe act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.” (Id. at p. 804.)

In Blair v. Superior Court (1990) 218 Cal.App.3d 221 [267 Cal.Rptr. 13] (Blair), the plaintiff was a passenger in a vehicle that struck a tree after leaving the roadway. In his claim, the plaintiff contended that the car went out of control because of ice on the roadway and that the state negligently maintained and constructed the highway. The plaintiff’s claim further indicated that the state failed to sand and care for the highway. In his complaint, the plaintiff added to the allegations by pleading, “ ‘5. . . . in addition, at that point, the roadway crosses a stream over a culvert or bridge requiring guard rails where there was no guard rail; in addition, the slope of the road is such that a vehicle striking ice is carried off the road causing it to strike adjacent roadside barriers including large trees that have been left close to the road also without a guard rail. [¶] 6. No warning signs were in place nor any other device designed to either advise the traveling public of danger or ameliorate that danger.’ ” (Id. at p. 224, italics omitted.) The trial court granted the defendant’s motion to strike the added allegations. The appellate court reversed, indicating that it did not read the claim as narrowly as the defendant and that the law does not require the degree of specificity argued by the defendant. In distinguishing Donohue, Fall River, and three other cases, the court stated, “[i]t is apparent that in each of the decisions the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim. In contrast, the claim and the complaint in this action are premised on essentially the same foundation, that because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property.” (Blair, supra, at p. 226.) The court when on to add, “[a] charge of negligent construction may reasonably be read to encompass defects in the placement of highway guard rails, slope of the road, presence of hazards adjacent to the roadway or inadequate warning signs.” (Ibid.)

In Turner, the alleged discrepancy was not between the claim and the complaint, but rather between the claim and the facts submitted in opposition to the motion for summary judgment. There, the plaintiff was shot in the parking lot of Cal Expo in Sacramento. He alleged in his claim that the defendants knew or should have known that gang-related violence and shootings had occurred on the premises, and that the defendants “failed to provide adequate warnings and/or security to members of the general public .. . .” (Turner, supra, 232 Cal.App.3d at p. 889, fn. 2.) In their motion for summary judgment, the defendants argued that they were not liable on a theory of negligence or dangerous condition of public property based on their failure to provide adequate security. In response, the plaintiff submitted evidence of inadequate lighting in the area where the shooting occurred. The trial court granted summary judgment, concluding that the claim of inadequate lighting was barred because no such allegation was included in the claim. In affirming, the appellate court indicated, “Nowhere [in the claim] is there any mention of inadequate lighting as a basis for the dangerous condition of property ...” (Id. at p. 889.) The Turner court distinguished Blair, stating, “In . . . Blair the allegations in the claim were broad enough to encompass those in the complaint. The allegations of the complaint merely clarified the allegations of the claim. Here, the allegations plaintiff seeks to introduce are completely different from those contained in the claim. Read in its entirety, the dangerous condition alleged in the claim is known criminal activity, not inadequate lighting. The new allegations constitute a complete shift in theory from what the defendants are alleged to have done to cause plaintiff’s injuries.” (Turner, supra, at pp. 890-891.)

While providing no bright line, these cases provide some guidance. Initially, if a plaintiff wishes to introduce issues not encompassed in the original pleadings, the plaintiff must seek leave to amend the complaint at or prior to the hearing on the motion for summary judgment. Second, new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.

For example, in Lackner, the plaintiff’s initial theory was the defendant’s alleged failure to control or supervise race participants and warn other patrons of the presence of race participants. In her complaint, the plaintiff attempted to add a subtly different theory — that the defendant failed to post warning signs telling downhill skiers to slow down because they were coming up on a flat portion of slope where other skiers often stopped. In Oakland Raiders, the plaintiff attempted to add entirely new factual bases to support a theory already alleged in the complaint. In Fall River, the plaintiff initially asserted a dangerous condition of public property based on alleged defects in the steel door. He later attempted to add not only new facts of children horseplaying, but also a new theory of negligent supervision. In Turner, the plaintiff initially pled theories of liability based upon the failure to provide adequate security, and later attempted to add an issue of a dangerous condition based on inadequate lighting.

In the present matter, plaintiff’s supplemental statement of undisputed facts states: “The City created another dangerous condition by the installation of light fixtures too close to the roadway.” (Italics added.) Unlike Lackner and Fall River, no new legal theory is alleged. Both the amended complaint and the supplemental undisputed fact are premised on the theory of dangerous condition of public property. Unlike Blair, the new fact adds a physical defect not the least bit encompassed within the amended complaint. In Blair, the original claim spoke of the plaintiff being in a car on a downgrade. The vehicle went out of control and collided with a tree. The claim additionally alleged that the defendants were negligent in failing to sand the roadway and, more broadly, in failing to maintain, construct, and care for the highway. Thus, in Blair, there were not only broad allegations relative to the construction and maintenance of the highway, but also factual references to the vehicle striking a tree. Implicit in this is that the car went off the roadway, the tree was in the vicinity of the traveling lanes, and a barrier or guardrail would have prevented the vehicle from leaving the traveling lanes and striking the tree. Thus the court could properly conclude that the claim and the complaint were “predicated on the same fundamental facts.” (Blair, supra, 218 Cal.App.3d at p. 226.) Such cannot be said for the present case. Factually, the amended complaint speaks only of the intersection, the fact that Dimeo and Specter could not see each other, and that the Dimeo vehicle struck the Specter vehicle. And, as to the basis for liability it alleges, “[defendants [City] and [County] were negligent in designing, constructing, maintaining, controlling and otherwise creating and failing to correct dangerous road conditions due to inadequate sight distance and lack of warning signs, devices and signals.” (Italics added.) The pleading does not mention any facts involving the southbound lanes or, more importantly, the fact that the Dimeo vehicle struck a luminaire, pole, or some similar object. In the amended complaint, there is no explicit or implicit involvement of the luminaire. The additional fact shifts the alleged dangerous condition to a portion of public property not remotely referenced in the amended complaint. It attempts to predicate liability on a totally different condition, not the least bit involved with the intersection or inadequate sight distance.

The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258 [23 Cal.Rptr.2d 490].) Upon a motion for summary judgment, amendments to the pleadings are readily allowed. (Kirby v. Albert D. Seeno Construction Co., supra, 11 Cal.App.4th at p. 1069, fn. 7.) If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. (Ibid.) To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.

D. The City May Be Found Liable for the Alleged Dangerous Intersection

In the trial court and on appeal, plaintiff asserted that triable issues of fact exist as to whether the intersection constituted a dangerous condition based upon the inadequacy of the stopping sight distance for northbound motorists. On appeal, the City does not dispute this contention. Instead, the City argues that it cannot be liable for the dangerousness of the intersection because the northbound lanes were owned, controlled, and maintained by the County, not the City. In support of its motion for summary judgment on this issue, the City submitted “undisputed” facts negating such ownership, control, and maintenance. In support thereof, the City submitted the declarations of engineers John McGlade and Edward Ruzak. McGlade declared that the County owned, maintained, controlled, and had responsibility for the northbound lanes; the City had control and responsibility for the southbound lanes; and the City did not construct, maintain, own, or control the northbound lanes. Ruzak indicated that the as-built plans delineate the northbound lanes as being County property and the southbound lanes as being owned and controlled by the City.

Plaintiff, in her response, did not dispute these facts, other than as they relate to the intersection as a whole. However, plaintiff argues that the City, as the owner of the southbound lanes, can be liable for an accident on the adjacent property because the addition of the southbound lanes increased the dangerousness of crossing through the intersection. Thus, the issue is whether the City’s liability may be premised on Specter’s attempt to use City property (i.e., the southbound lanes) in combination with the existence of a dangerous condition on the adjacent County property (i.e., the northbound lanes). As we explain, there are sufficient facts in the record to create a triable issue relative to the imposition of liability on the City even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.

In Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [132 Cal.Rptr.2d 341, 65 P.3d 807] (Bonanno), the plaintiff was struck by a vehicle while crossing a county-owned roadway to get to a bus stop established by the defendant (CCCTA). Following a plaintiff’s verdict, CCCTA appealed. In affirming the judgment, the Court of Appeal held that the location of the bus stop “ ‘beckoned pedestrian bus patrons to cross, and compelled cars to stop, at the feeder crosswalk without attendant traffic lights or pedestrian-activated signals.’ ” (Id. at p. 146.) The Supreme Court, in granting CCCTA’s petition, limited review to the question of “ ‘whether the location of a bus stop may constitute a dangerous condition of public property under Government Code section 830 because bus patrons will be enticed to cross a dangerous crosswalk to reach the bus stop.’ ” (Ibid.) “Our order . . . assumes the existence of a dangerous crosswalk, posing only the question whether a bus stop may be deemed dangerous because bus users, to reach the stop, must cross at that dangerous crosswalk.” (Id. at p. 147.) In finding that the bus stop could be deemed dangerous and that CCCTA was liable for an injury occurring on adjacent property, the court relied heavily on the concept expressed in the California Law Revision Commission comments regarding section 830: “ ‘[A public entity’s] own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.’ ” (Bonanno, supra, at p. 148, quoting Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code, supra, foll. § 830, p. 299.) Applying the comments to the facts before it, the court stated, “ ‘[A] condition on the adjacent property [the crosswalk at an uncontrolled intersection] exposes those using the public property [the bus stop] to a substantial risk of injury.’ ” (Bonanno, supra, at p. 148, quoting Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code, supra, foil. § 830, p. 299.)

Bonanno was followed in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 [1 Cal.Rptr.3d 712] (Joyce). In Joyce, the plaintiff was walking to school, crossing a four-lane city roadway in a marked crosswalk. There was no signal at the crosswalk. The crosswalk led to an open school yard gate, which the plaintiff was attempting to access. While in the crosswalk she was struck by a vehicle. (Id. at p. 295.) At trial, the jury returned a plaintiff’s verdict against the school district. The school district appealed. The appellate court, in affirming the judgment, relied on Bonanno and the California Law Revision Commission comment to section 830. Quoting Bonanno, the court stated, “ ‘[n]or is it determinative that Bonanno’s injury occurred on adjacent County property as she approached the bus stop, rather than while she was awaiting the bus at the stop itself. . . . [T]hat Bonanno was injured trying to access CCCTA’s property makes her no less a user of it. If a CCCTA bus stop could be reached only by jumping across an adjacent ditch, CCCTA would logically bear the same liability to a patron who fell into the ditch attempting to reach the [bus] stop as to one who fell while waiting at the [bus] stop.’ [Citation.]” (Joyce, supra, at p. 300.)

In both Bonanno and Joyce, the plaintiffs were injured while on property adjacent to the defendants’ property. Both the plaintiffs were exposed to a risk of injury because they were attempting to use the defendants’ property (the bus stop or school grounds). As here, plaintiff was injured while on adjacent property (the northbound lanes). She was exposed to a risk of injury because at the time of the accident Specter was attempting to use and access defendant’s southbound lanes.

In both Bonanno and Joyce, the defendant entity had some ability to protect against the injury. In Bonanno, the transit district could have moved the bus stop; in Joyce, the school district could have removed the opening in the fence. Here, the evidence of the City’s ability to control, or protect against the risk of injury, is far less obvious; yet triable issues nonetheless remain. While there is no evidence in the record of any contract or agreement between the City and the County relative to the intersection, there is evidence that in 1996 Ridgecrest was widened. At that time, the plans and designs were reviewed and approved by Jon Roberts, the City’s traffic engineer. The County also approved the street improvement plans. Robert Crommelin, one of plaintiffs experts, declared that at the time of the addition of the southbound lanes, there should have been a reduction in the vertical curve just south of the intersection of Ridgecrest and Pebble Beach. At the time of this widening, both the City and the County had the ability to effect change in the design of the roadway, so as to protect against the inadequate stopping sight distance at the intersection. More to the point, there is evidence that the City in 1998 and 2002 conducted an all-way stop and traffic signal warrant analysis for the “intersection of Ridgecrest Road and Pebble Beach Drive (High Crest).” From this evidence it would appear that triable issues exist as to the City’s ability and opportunity to protect against the risk of injury immediately prior to the accident. (See Warden v. City of Los Angeles (1975) 13 Cal.3d 297, 300 [118 Cal.Rptr. 487, 530 P.2d 175]; Shea v. City of San Bernardino (1936) 7 Cal.2d 688, 692-693 [62 P.2d 365].)

Thus, liability may be imposed on the City for an alleged dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.

E. The Evidence Established the Applicability of the Design Immunity As a Matter of Law

Under section 830.6, a public entity may avoid liability for a dangerous condition of property if it can establish that the injury was caused by an approved plan or design. To establish the immunity, the entity must establish; “ ‘ “(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.” ’ [Citations.]” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939 [67 Cal.Rptr.2d 454].)

“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.]” (Cornette, supra, 26 Cal.4th at p. 69.)

In 1996, the City prepared plans relative to the widening of Ridgecrest and the continuation of Pebble Beach west of Ridgecrest. (The continuation street is named Highcrest.) The plans were approved by Jon Roberts. Thirteen days later, they were approved by an engineer for the County. The plans do not depict the block wall to the east of Ridgecrest. They do, however, show the vertical curvature of Ridgecrest south of its intersection with Pebble Beach for not only the portion of roadway to be added but also for the already existing lanes.

As to the causal relationship between the plans and the accident, there is a clear nexus between the vertical curvature of Ridgecrest south of its intersection with Pebble Beach as shown in the plans and the adequacy or inadequacy of stopping sight distance. Thus the first prong is met.

As to the second prong, the discretionary approval of the plans prior to construction, the 1996 plans depict the vertical curve on Ridgecrest just south of the intersection with Pebble Beach and the widening of the road. In his declaration, John McGlade, a City engineer, declared that these plans were reviewed and approved by Jon Roberts, an engineer employed by the City. Ruzak also declared that the plans were approved by Roberts and the San Bernardino County Road Department in April 1996. The plans themselves show that they were signed and approved by Roberts in his capacity as the City Engineer. As such, his signature is presumed genuine. (See Evid. Code, § 1453.) Such evidence satisfies the City’s evidentiary burden for the second prong. (See Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734 [95 Cal.Rptr.2d 719], disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74.) Whether the engineers in approving the 1996 plans took into consideration the added distance and involved time for a westbound motorist to clear the northbound lanes, as opposed to clearing only one northbound lane as represented by the 1969 plans, is not for us to speculate in a record void of any evidence relative thereto. (See Alvarez v. State of California, supra, at p. 734.)

Relative to the third element of design immunity, the City must “present substantial evidence of the reasonableness of the approved design. [Citation.]” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 186 [62 Cal.Rptr.2d 459] (Higgins), disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74.) “[T]he third element of design immunity, the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design, [is] a matter for the court, not the jury. ‘[T]he trial or appellate court’ is to determine whether ‘there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan ... or (b) a reasonable . . . employee could have approved the plan or design or the standards therefor.’ (§ 830.6.)” (Cornette, supra, at p. 72.) “In determining whether evidence ... is substantial, the question is whether the evidence ‘reasonably inspires confidence’ and is of ‘solid value.’ [Citation.]” (Muffett v. Royster (1983) 147 Cal.App.3d 289, 307 [195 Cal.Rptr. 73], disapproved on another point in Cornette, supra, at pp. 73-74.) Typically, “any substantial evidence” consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards. (See Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1118 [107 Cal.Rptr.2d 823]; Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 59 [42 Cal.Rptr.3d 417].)

Relative to this issue, the City submitted one “undisputed” fact: “The westside (southbound lanes) street improvements and widening of Ridgecrest Road included modification of the intersection of Highcrest and Ridgecrest Road. The road and intersection modification and improvements were reviewed and approved in accordance with good engineering practices by Jon Roberts, professional engineer, employed by the [City], on April 16, 1996. The County approved the plans on April 29, 1996.” In support of this fact, the City provided the declarations of Ed Ruzak, a registered civil and traffic engineer, and John McGlade, a civil engineer employed by the City. Ruzak declared that he reviewed the as-built plans. His declaration thereafter addresses only the southbound lanes and their interface with Highcrest. There is nothing in his declaration to support the fact that the plans and design for the intersection of Ridgecrest and Pebble Beach and the northbound lanes south of the intersection were reasonably approved.

McGlade’s declaration was also focused on the southbound lanes. His declaration is two and one-half pages in length. Approximately one page is dedicated to the issue that the County owned, controlled, and maintained the northbound lanes and the City owned, controlled and maintained the southbound lanes. Within this context, he declares that “[t]he [City] did not design the northbound lanes of Ridgecrest . . . .” He further states that “[t]he sight line looking south onto Ridgecrest Road from Pebble Beach Drive for oncoming northbound traffic is on County owned, maintained and controlled property.” Lastly, he declares that in 1996 Ridgecrest was widened to the west. And that “[t]he west side (southbound lanes) street improvements and widening of Ridgecrest Road included modification of the intersection of High Crest and Ridgecrest Road .... The road and intersection modification and improvements were reviewed and approved in accordance with good engineering practices by Jon Roberts, a professional engineer employed by the [City] on April 16, 1996. [¶] . . . The [County] reviewed the street improvement plan for Ridgecrest Road . . . and approved the plan on 04/29/1996.”

In deciding whether there is substantial evidence to support the notion that the plan or design was reasonably approved, we must determine whether there is evidence that “reasonably inspires confidence” and is of “solid value.” No portion of Ruzak’s declaration supports the conclusion that the plans and designs of the northbound lanes and their intersection with Pebble Beach were reasonably approved. Equally, we do not believe that McGlade’s declaration is supportive of the reasonableness of the design and approval. While one portion of the declaration could arguably be viewed in isolation as supporting the reasonableness of the plan and design for the entire roadway, when viewed in the context of the entire declaration, the essence of McGlade’s declaration is that the plans and design for the southbound lanes fell within the range of reasonable engineering guidelines; not that the design of the overall intersection and approaching northbound lanes was designed to comply with reasonable engineering principles. And, as to the portion of the declaration which could arguably be relied upon by the City to support the reasonableness of the design, McGlade limits his opinion to the “road and intersection modification and improvements” of Ridgecrest and Highcrest. Based on the papers it submitted we do not believe that defendant met its initial burden of production as it relates to the third prong of the design immunity.

To cure the evidentiary omission in the City’s papers, the City has requested that we take judicial notice of specified “court records” filed by the County in the superior court in this case in connection with the County’s motion for summary judgment. The City also requests judicial notice of our prior unpublished opinion affirming the grant of summary judgment in favor of the County. Plaintiff does not oppose the request. We grant the request pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a). However, this does not help the City. First, while we take judicial notice of the existence of the documents in court files, we do not take judicial notice of the truth of the facts asserted in such documents. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 [8 Cal.Rptr.2d 552].) Thus, even if there are facts asserted within the records specified by the City that might cure the evidentiary gap in its motion, the City cannot rely upon them to satisfy its burden of production in this case.

The context within which the trial court and this court are dealing with the issue of the design immunity is that of a summary judgment motion. Our sole function “is to determine from the submitted evidence whether there is a ‘triable issue as to any material fact’ . . . .” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 [68 Cal.Rptr.2d 571], citation omitted, italics added.) Our decision in the companion County case stands solely for the proposition that, “from the evidence submitted,” there was no triable issue of fact as to the applicability of the design immunity. Such a finding in the County motion has no bearing on the City’s separate motion, where the supporting evidence relied on is distinct from that proffered in connection with the County’s motion.

Additionally, to the extent the City seeks to rely upon facts in these records, the evidence of such facts is not referenced in the City’s separate statement of undisputed facts, as required by Code of Civil Procedure section 437c, subdivision (b)(1) (each material fact in the separate statement “shall be followed by a reference to the supporting evidence”). “ ‘The due process aspect of the separate statement requirement is self evident — to inform the opposing party of the evidence to be disputed to defeat the motion.’ [Citation.] [¶] . . . [T]he evidence . . . was omitted from the separate statement .... In considering this evidence, the court violated [plaintiff’s] due process rights. . . . Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. [Citation.]” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [125 Cal.Rptr.2d 499].) Here, the evidence submitted by the County was not included as part of the supporting evidence on the City’s motion. And as provided by Code of Civil Procedure section 437c, subdivision (b)(7), “[a]ny incorporation by reference of matter in the court’s file shall set forth with specificity the exact matter to which reference is being made . . . .” This was not done here. Neither the trial court nor the appellate court can properly consider the County’s evidence in considering the City’s motion.

With this said, we believe the trial court’s grant of summary judgment was nonetheless appropriate. As earlier discussed, the missing link in defendant’s evidence was the third element of the design immunity — “substantial evidence of the reasonableness of the approved design. [Citation.]” (Higgins, supra, 54 Cal.App.4th at p. 186.) Typically, “any substantial evidence” consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards. (See Fuller v. Department of Transportation, supra, 89 Cal.App.4th at p. 1118; Weinstein v. Department of Transportation, supra, 139 Cal.App.4th at p. 59.) In opposition to the City’s motion, plaintiff submitted and attached as an exhibit the declaration of David Royer. The original of this declaration was submitted by the County, in support of its motion. In his declaration, Royer opined: “In my expert opinion as a professional Civil and Traffic Engineer, registered as such by the State of California, the design of the roadway at the subject location is not only reasonable but is an excellent design. There was no defect in the design or operation of the roadway at the time of the accident herein. . . .” Implicit in this statement is that the design was reasonably approved.

As set forth in Code of Civil Procedure section 437c, subdivision (c), “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact.... In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers . . . .” (Italics added.) “All of the evidence” includes evidence supplied by the plaintiff that supports the defendant’s motion. In Villa v. McFerren (1995) 35 Cal.App.4th 733 [41 Cal.Rptr.2d 719], for example, the court considered deposition testimony supplied by a plaintiff in determining whether the defendant’s burden of production had been met. The court stated, “We reject the argument that the trial court could not consider the deposition transcript excerpts produced by plaintiff in determining whether the burden of proof had shifted. No doubt, had plaintiff not produced the transcript of defendant’s deposition, the burden would never have shifted and the summary judgment motion should have been denied. However, in determining whether the burden of proof has shifted, the trial court. . . must consider all of the papers before it.” (Id. at pp. 750-751.) Because of this, we find that the present record demonstrates no triable issue of fact as it relates to the applicability of the design immunity.

F. There Is No Triable Issue of Fact That the County Lost the Design Immunity As a Result of “Changed Circumstances”

“[A]fter a defendant has shown the applicability of the design immunity to the plaintiff’s claims, the plaintiff bears the burden of establishing each of the three elements of the loss of the immunity. [Citation.] . . . Consistent with their burden at trial of establishing the elements of [defendant’s] loss of the design immunity, plaintiffs bore the burden of production in opposition to the motion for summary judgment ‘to make a prima facie showing of the existence of a triable issue of material fact’ [citation] with respect to the loss of the design immunity. Since it is necessary to establish all three elements of the loss of the design immunity [citation], plaintiffs needed to make a prima facie showing of the existence of a triable issue of fact with respect to each of those elements to overcome [defendant’s] motion for summary judgment.” (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 [4 Cal.Rptr.3d 205].) The elements that must be addressed by plaintiff are: “(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; 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.” (Cornette, supra, 26 Cal.4th at p. 66.)

In addressing the first element that the plan or design has become dangerous because of a change in physical conditions, the court in Weinstein v. Department of Transportation, supra, 139 Cal.App.4th 52, indicated, in addressing a cross-median accident and the absence of a median barrier in a Caltrans (Department of Transportation) plan, that “[p]laintiffs did not meet this burden. Their showing relied on the increase in traffic at the accident location and a corresponding increase in accidents. However, plaintiffs failed to produce evidence that either statistic made the condition of the roadway at the accident location inconsistent with state standards or would have rendered it unreasonable for a public entity to approve the design of the roadway. . . . Plaintiffs produced no evidence that increased traffic volume alone mandated a median barrier under the applicable state standards, and they otherwise failed to support their claim of loss of design immunity with evidence that changed conditions had caused the accident location to become dangerous.” (Id. at pp. 60-61, italics added.) Here, as in Weinstein, plaintiff has failed to meet the element of “changed conditions.”

The record contains no traffic counts and little traffic accident history. There is absolutely nothing upon which a court could find a triable issue. The original design of Ridgecrest and Pebble Beach occurred in 1969. The design was subsequently modified in 1996 to widen the intersection. Plaintiff provides no statistical data on the increase of traffic flow at the intersection between 1969 and 1996, and 1996 to the date of the accident. No speed surveys over the relevant time period are provided and there is no attempted correlation between increased traffic flow, increased speeds, and increased accidents. There is nothing in the record to support even an inference that the functioning of the intersection was any different in 1969, 1996, or 2002. Plaintiff has simply failed to address, from an evidentiary point of view, the issue of changed conditions.

Lastly, plaintiff failed to proffer sufficient evidence that the City had time to obtain funds to carry out remedial work to bring the property into conformity with a reasonable design or that they did not reasonably attempt to provide adequate warnings, or otherwise restrict turning movements onto the southbound lanes. Neither of plaintiff’s experts addressed the issue of providing warning signs or speed signs, as designated in the traffic manual. The only evidence of suggested remedial work provided by plaintiff was Crommelin’s declaration that a signal light could have been installed or the elevation of Ridgecrest could have been reduced by “about one (1) foot.” There is no evidence that defendant had a reasonable time to obtain the funds and carry out the suggested remedial work.

G. The City’s Cross-appeal

The City appealed the denial of its motion for defense costs and expenses. We affirm.

1. Procedural Background

Following the grant of summary judgment and prior to the entry of judgment, the City filed a motion for attorney fees, expert fees, and costs pursuant to Code of Civil Procedure section 1038. Alternatively, the City moved for the recovery of its expenses, including attorney fees, pursuant to Code of Civil Procedure section 2033.420.

The City’s motion was heard on October 17, 2005. Following argument, additional briefing was permitted and the matter submitted.

On December 14, 2005, the court issued a minute order denying the motion “without prejudice subject to the outcome of the appeal.”

The City then filed a motion for renewal of defendant’s motion for attorney fees and costs, requesting reconsideration of the December 14, 2005, ruling. On January 30, 2006, the court granted this motion and took the matter of the motion for fees under submission. On February 10, 2006, the court issued a minute order denying the City’s motion for attorney fees with prejudice.

2. Motion for Defense Costs Under Code of Civil Procedure Section 1038

Code of Civil Procedure section 1038, subdivision (a), provides, in relevant part: “In any civil proceeding under the California Tort Claims Act ... , the court, upon motion of the defendant . . . , shall . . . determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint .... If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party.” The statute “provides public entities . . . with a way to recover the costs of defending