Filed 2/28/14 Randy’s Trucking v. State of California Dept. of Transportation CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

RANDY’S TRUCKING, INC. et al.,

Plaintiffs, Cross-complainants and 

Appellants,

v.

STATE OF CALIFORNIA DEPARTMENT OF 

TRANSPORTATION,

Defendant, Cross-defendant and 

Respondent.

F065447

(Super. Ct. No. S-1500-CV-263835)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. 

Chapin, Judge.

Manning & Kass, Ellrod, Ramirez, Trester, Darin L. Wessel; Ericksen Arbuthnot, 

Michael D. Ott for Plaintiffs, Cross-complainants and Appellants.

Ronald W. Beals, Chief Counsel, Jeanne Scherer, Deputy Chief Counsel, Douglas 

L. Johnson, Assistant Chief Counsel, and Bruce D. McGagin, Counsel for Defendant, 

Cross-defendant and Respondent.

-ooOoo-
2.

Fernando Sandoval drove a tractor-trailer rig across a set of railroad tracks in 

Shafter and stopped at the stop line marked for an intersection a short distance beyond the 

tracks. The distance between the stop line and the tracks was too short for the rig. Before 

Sandoval could proceed through the intersection, an Amtrak train traveled down one of 

the tracks and struck the trailer, destroying it. The truck’s owner, Randy’s Trucking, Inc.,

sued the state, through the Department of Transportation (Caltrans), alleging a dangerous 

condition of public property. The trial court granted summary judgment for Caltrans, 

relying on a statutory defense known as design immunity. (Gov. Code, § 830.6.) We

affirm.

FACTS AND PROCEDURAL HISTORY

The accident took place on July 19, 2007. According to witness statements cited 

in the traffic collision report prepared by a police officer, Sandoval drove westbound on 

Los Angeles Avenue, crossing the railroad tracks as a crossing gate began to lower and a 

crossing signal was activated.1 Sandoval stopped his truck at the intersection of Los 

Angeles Avenue and Central Valley Highway. The trailer was on the tracks. An Amtrak 

train arrived at the crossing and struck the trailer. The Amtrak engineer said he sounded 

his horn when he saw the trailer on the tracks and began emergency braking when he saw 

that it was not moving, but the train could not stop in time. Sandoval said he did not see

the crossing gates lowering or the train coming; did not hear the crossing signal or the 

train horn; and was not aware of the danger until he heard the crash. The trailer was torn 

from Sandoval’s truck and severely damaged. The train’s engine was damaged and its 

passenger cars were derailed. The rear windshield of a car stopped at the intersection 

 

1Caltrans’s expert, testifying at a deposition, appeared to concede that Sandoval 

had already crossed the tracks and stopped at the stop sign by the time the crossing gates 

and signal were activated. Neither side claims the question of whether Sandoval crossed 

the tracks before or after the gates and signal were activated has any bearing on whether 

the summary judgment motion was properly granted. 
3.

sustained minor damage from flying debris. The collision report stated that it appeared no

one was injured. 

Randy’s Trucking, Inc., and Star Insurance Company, which were the owner and 

insurer of the truck driven by Sandoval, filed a complaint in Kern County Superior Court 

against Caltrans, the City of Shafter, Kern County, the National Railroad Passenger 

Corporation (i.e., Amtrak), and the Burlington Northern Santa Fe Railroad. Defendants 

removed the case to federal district court, which remanded it to the superior court as to 

Caltrans only. Several related actions naming Randy’s Trucking, Inc., Sandoval, and 

others as defendants were filed; in these actions, Randy’s Trucking, Inc., and Sandoval 

cross-complained against Caltrans. The related actions were then consolidated with this 

case. The claims against Randy’s Trucking, Inc., and Sandoval were settled by a $3 

million payment by Star Insurance Company. 

In the complaint and cross-complaint operative at the time of the motion for 

summary judgment, Randy’s Trucking, Inc., Star Insurance Company, and Sandoval 

(hereafter collectively Randy’s Trucking) alleged one cause of action for premises 

liability, and more specifically for a dangerous condition of public property, against 

Caltrans. These pleadings stated: “The stop sign and stop limit line at which RANDY’S 

rig was stopped at the time of the accident was located in such a way that when 

RANDY’S rig was stopped legally at said stop sign and stop limit line, a portion of that 

rig was actually and necessarily located on the railroad tracks. This left RANDY’S rig in 

jeopardy of being struck by a train traveling on those tracks, which is exactly what 

happened.” 

Caltrans filed a motion for summary judgment. The motion first argued that 

Caltrans was protected by design immunity. This is the defense established by 

Government Code section 830.6:2 

 

2Subsequent statutory references are to the Government Code unless otherwise 

noted.
4.

“Neither a public entity nor a public employee is liable under this 

chapter [i.e., ch. 2, Dangerous Conditions of Public Property, of pt. 2 of the 

Government Claims Act, Gov. Code, § 810 et seq.] for an injury caused by 

the plan or design of a construction of, or an improvement to, public 

property where such plan or design has been approved ... by the legislative 

body of the public entity or by some other body or employee exercising 

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

prepared in conformity with standards previously so approved, if the trial or 

appellate court determines that there is any substantial evidence upon the 

basis of which (a) a reasonable public employee could have adopted the 

plan or design or the standards therefor or (b) a reasonable legislative body 

or other body or employee could have approved the plan or design or the 

standards therefor.” (§ 830.6.)

To support this defense, Caltrans relied on its engineering plans for the 

intersection. The plans bore notations showing that the design of the intersection was 

approved by engineers with authority to approve them and that the intersection was, after 

approval, built in accordance with the approved design. 

Caltrans conceded, however, that the stop sign and stop line shown on the plans 

were “not plotted on a scaled drawing which identifies the specific location of each item.” 

It was necessary for the field engineer to exercise engineering judgment to determine the 

appropriate placement in light of actual conditions. Caltrans maintained that, in spite of 

this, “the designs for the stop sign and stop bar were approved prior to the actual 

construction of” them. Caltrans’s point appears to have been that, when officials 

approved the plans, they understood that the field engineer would have to exercise 

judgment in determining the placement of the stop sign and line, and their approval of the 

plans constituted approval of this exercise of judgment. 

Caltrans argued that, even if the approved plans did not suffice to establish the 

design-immunity defense, the fact that the stop sign and line were placed in accordance 

with preexisting standards did establish it. Caltrans’s Traffic Manual and Highway 

Design Manual call for placement of a stop line between four and 30 feet back from the 
5.

edge of the traveled portion of the intersecting road. The line’s placement was within 

these limits. 

Caltrans supported the reasonableness requirement of section 830.6 with an expert 

opinion. Caltrans’s expert stated in a declaration that the field engineer’s decision about 

where to place the stop line was reasonable because placing the line closer to the 

intersecting road would have reduced the available space for tractor-trailers turning left 

from southbound Central Valley Highway onto eastbound Los Angeles Avenue. 

Next, Caltrans argued that if it has not established the design-immunity defense, 

summary judgment should still be granted because Randy’s Trucking was unable to show 

a dangerous condition of public property in the first place. Caltrans asserted that, 

although a history of similar accidents involving trains at the same intersection could 

potentially show a dangerous condition, insufficient admissible evidence existed to show 

such a history. 

In its opposition to the motion for summary judgment, Randy’s Trucking relied on 

expert opinion that if Caltrans’s plans for the intersection were intended to show the 

position of the stop line, then the actual line was placed 10 feet closer to the railroad 

tracks than the planners intended. The line could have been placed 10 to 11 feet farther 

from the tracks (and closer to the intersection) and still been within regulatory guidelines. 

If it had been, the accident probably would not have happened. This meant Caltrans 

could not avail itself of the design-immunity defense: The intersection was not 

constructed in accordance with the approved plans, and the variance caused the accident. 

On the other hand, if, as Caltrans admitted, the plans were not intended to show a specific 

location for the stop line and the placement decision was made by the field engineer, then 

the design-immunity defense was inapplicable because the design element at issue was 

not approved prior to the start of construction. 

In response to Caltrans’s argument that the line-placement decision was protected

by design immunity because it was within preapproved standards, Randy’s Trucking 
6.

argued that there were no applicable preapproved standards. The standards Caltrans 

relied on governed the distance between a stop line and the edge of the intersecting 

roadway ahead of it. Here, however, the important distance was the distance between the 

stop line and the railroad tracks behind it. 

Randy’s Trucking attacked Caltrans’s contention that it had established the 

reasonableness element of design immunity. It described as a “ridiculous ... theory” 

Caltrans’s argument that the placement of the stop line was justified by a need to provide 

sufficient room for trucks turning left from eastbound Central Valley Highway onto 

southbound Los Angeles Avenue. 

On the question of whether there was a dangerous condition in the first place, 

Randy’s Trucking argued that it was obvious that the placement of the stop line created a 

“substantial risk of injury” when the intersection was “used with due care in a manner in 

which it was reasonably foreseeable that it would be used.” (§ 830.2.) The line was 40 

feet from the tracks. California law allows trucks up to 65 feet in length. The truck 

involved in this case was 56 feet long. Declarations by Randy’s Trucking’s two experts 

cited five reports of prior accidents at the same crossing since 1974. Randy’s Trucking 

suggested that the small number of accident reports could have been the result of 

Caltrans’s limited record keeping. 

Finally, Randy’s Trucking invoked what it referred to as the “‘[t]rap’ [e]xception 

to [d]esign [i]mmunity.” The cases it cited, however, refer not to an exception to the 

immunity of section 830.6, but to an exception to a defense set forth in section 830.8. 

This is a defense to a claim of failure to warn. Section 830.8 provides that a public entity 

is not liable for an injury caused by “the failure to provide traffic or warning signals, 

signs, markings or devices described in the Vehicle Code.” (§ 830.8.) Then it provides 

that this immunity does not apply if a sign or other device “was necessary to warn of a 

dangerous condition which endangered the safe movement of traffic and which would not 

be reasonably apparent to, and would not have been anticipated by, a person exercising 
7.

due care.” (Ibid.) In other words, Randy’s Trucking argued that a reasonable truck driver 

would not realize that the end of a large rig would be on the tracks when the rig was 

stopped at the intersection, and Caltrans negligently failed to place a sign near the 

crossing warning of this danger. 

The trial court issued a written order granting the motion for summary judgment, 

relying on Caltrans’s design-immunity defense. The court found that Caltrans’s plans, 

bearing indications that the intersection was built in accordance with a preapproved 

design, were sufficient to establish the prior-approval element of the defense. The court 

made this finding despite Caltrans’s admission that the plans did not specify the 

placement of the stop line at issue in the litigation. 

Next, the court found that the reasonableness element of the design-immunity 

defense was established by the declaration of Caltrans’s expert, who stated that the stopline placement was reasonable. The court sustained Caltrans’s objection to the admission 

of Randy’s Trucking’s contrary expert declaration on this subject. The court stated that 

the opinion expressed in the declaration lacked foundation because the expert claimed “no

knowledge or opinions with regards to [Caltrans’s] approval of construction plans.” The 

court concluded that Caltrans’s expert opinion therefore was uncontested and was 

sufficient to support a reasonableness finding. 

The trial court then considered the possibility that Caltrans’s design immunity was 

lost through a change in conditions that caused the property to become dangerous after it 

was built. It found that no evidence of any change in the physical conditions at the 

intersection had been produced. It rejected the contention that a change in conditions had 

been shown by an increase in accidents at the site. After describing reports of five prior 

accidents, the court concluded that none of the reports contained sufficient detail to show 

that the accidents happened in the same place as, and under circumstances similar to, the 

accident at issue in this case. Further, two of the accidents were irrelevant because they 

took place in 1974 and 1975, before Caltrans designed and built the improvements to the 
8.

intersection as it existed at the time of the accident. The court sustained Caltrans’s 

evidentiary objections to the prior-accident evidence. 

Finally, the court discussed Randy’s Trucking’s contention that design immunity 

did not apply because the intersection was a “trap” for truck drivers. It concluded that 

“the subject location’s physical layout configuration is sufficiently obvious so that drivers 

of tractor-trailer trucks would be aware that trailers of a certain length may be located on 

the tracks when the trucks were stopped at the stop limit line.” Consequently, a driver 

exercising due care would be aware of the danger and no sign was necessary to warn of it, 

so section 830.8 barred liability. 

The court’s minute order included a summary of its rulings on the parties’ 

evidentiary objections. Regarding the declarations of Randy’s Trucking’s two experts, 

Robert Crommelin and Matthew D. King, the court stated:

“[T]he declaration of the plaintiff/cross-complainants’ expert King lacked 

qualifications and foundation, leaving his opinions inadmissible. The 

declaration of Crommelin lacked foundation with regard to [Caltrans’s] 

approval processes, and left the argumentative opinions objectionable, and 

were without sufficient foundation to support a showing of a dangerous 

condition.” (Capitalization omitted.) 

The trial court entered judgment for Caltrans on April 28, 2012. 

DISCUSSION

I. Standard of review and applicable law

We review an order granting summary judgment de novo. (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply 

the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 

915, 925.) The trial court must grant the motion if “all the papers submitted show that 

there is no triable issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable 

issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to 

find the underlying fact in favor of the party opposing the motion in accordance with the 
9.

applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) We 

view the facts in the light most favorable to the nonmoving party and assume that, for 

purposes of our analysis, his version of all disputed facts is correct. (Sheffield v. Los 

Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.) A moving 

defendant can establish its entitlement to summary judgment by either (1) demonstrating 

that an essential element of the plaintiff’s case cannot be established or (2) establishing a 

complete defense. (Code Civ. Proc., § 437c, subd. (o).) 

In a case alleging a dangerous condition of public property, section 830.6 bars a 

public entity’s liability where the following three elements are shown: (1) The injury was 

caused by a defective plan or design for the construction or improvement of the property. 

(2) The plan or design was approved in advance by the public entity’s legislative body or 

a body or employee exercising discretionary authority, or the plan or design was prepared 

in conformity with standards that received such advance approval. (3) The approval or 

adoption of the design or the standards was reasonable. (5 Witkin, Summary of Cal. Law 

(10th ed. 2005) Torts, § 280, pp. 456-457.) 

At the time of the adoption of the Government Claims Act, the California Law 

Revision Commission stated the purposes of the design-immunity defense:

“‘There should be immunity from liability for the plan or design of public 

construction and improvements where the plan or design has been approved 

by a governmental agency exercising discretionary authority, unless there is 

no reasonable basis for such approval. While it is proper to hold public 

entities liable for injuries caused by arbitrary abuses of discretionary 

authority in planning improvements, to 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 decisionmaking by 

those public officials in whom the function of making such decisions has 

been vested.’ (4 Cal. Law Revision Com. Rep. (1963) p. 823.)” (Mikkelsen 

v. State of California (1976) 59 Cal.App.3d 621, 630.) 

To establish the third element of design immunity, the state only needs to present 

substantial evidence that the approval of the design or adoption of the standards at issue 
10.

was reasonable. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940 (Grenier).) 

This means the opinion of the state’s expert generally suffices, and the existence of a 

contrary opinion by a plaintiff’s expert does not create a triable issue, since a mere 

conflict in evidence does not show that evidence is insubstantial. (Id. at p. 941.)

The question of whether there is substantial evidence of reasonableness is to be 

answered in the first instance by the trial court, not the jury. Section 830.6 establishes 

this point expressly. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 72 

(Cornette) [§ 830.6 provides that “the trial or appellate court” is to determine whether 

there is substantial evidence of reasonableness].) 

Some courts, including this one, have held that the other two elements of design 

immunity are also to be decided in the first instance by the trial court and are not for the 

jury. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 728; see also Cornette, 

supra, 26 Cal.4th at p. 74, fn. 3 [listing additional cases].) We, however, agree with 

Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 383, 386-388

(Hernandez), that in Cornette, the Supreme Court at least implicitly rejected this view. 

The Supreme Court stated that section 830.6 expressly reserves only the question of 

whether there is substantial evidence of reasonableness for court determination. It also 

stated that none of its decisions had ever stated or implied that the other two elements 

were not for the finder of fact, and that Courts of Appeal so holding had done so 

“‘without critical comment or explanation and without reference to the text of’” the 

statute. (Cornette, supra, at p. 74.) 

The consequences of these rules for our purposes are as follows: We must uphold 

the trial court’s determination on the third element if Caltrans presented substantial 

evidence that the decision to adopt the design or standards at issue was reasonable, even 

if Randy’s Trucking presented substantial evidence to the contrary. On the other two 

elements, by contrast, the existence of conflicting evidence would give rise to triable 
11.

questions of fact and summary judgment could not be upheld. (Hernandez, supra, 114 

Cal.App.4th at pp. 387-388.)

II. Design immunity: first element

The first element of design immunity is undisputed in this case. The parties agree 

that the design of the intersection, and in particular the placement of the stop line relative 

to the railroad tracks, caused the accident. 

III. Design immunity: second element

On the second element—prior approval of the design or standards—we agree with 

Caltrans’s argument that there is no triable issue of material fact because the stop line was 

placed within the limits provided by preexisting state standards. As the plain language of 

section 830.6 indicates, an improvement to public property designed in conformity with 

standards previously approved by an authorized employee or body enjoys design 

immunity. (See Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 

59 [stating “[d]esign immunity extends to plans that are ‘in conformity with’ the state’s 

approved standards even when those plans have not been specifically approved” and 

upholding summary judgment based on design immunity where defendant relied on 

signage installed in conformity with approved standards].)

In her declaration, Caltrans’s expert, Kim Nystrom, authenticated copies of the 

pertinent sections of Caltrans’s Traffic Manual, in effect at the time the work was 

performed at the intersection, and the California Manual on Uniform Traffic Control 

Devices, in effect at the time of the litigation. The Traffic Manual states: “In the absence 

of a marked crosswalk, the [stop] limit line should be placed at the desired stopping point; 

this point is typically no more than 30 feet nor less than 4 feet from the nearest edge of 

the intersecting roadway.” Similarly, the Manual on Uniform Traffic Control Devices 

states: “In the absence of a marked crosswalk, the stop line ... should be placed at the 

desired stopping ... point, but should be placed no more than 9 m (30 ft) nor less than 1.2 
12.

m (4 ft) from the nearest edge of the intersecting traveled way.” Nystrom declared that 

she measured this distance in the intersection at issue and found it to be 14 feet. 

From the fact that these manuals have been issued, it can reasonably be inferred 

that they were approved by officials with authority to approve them. Randy’s Trucking 

does not contend otherwise. It presented no evidence bringing into dispute either the 

approval of the standards or the placement of the stop line in conformity with them. 

In this appeal, Randy’s Trucking does not renew the contention it made in the trial 

court that the standards Caltrans relies on are irrelevant because they deal with the 

distance from the stop line ahead to the intersecting road, whereas the important distance 

in this case is the distance from the stop line back to the railroad tracks. We would not 

have been persuaded by this argument if Randy’s Trucking had made it. The stop line 

was placed in conformity with state standards even if the state could have, but did not, 

make another standard (regarding the distance between stop lines and railroad tracks) that 

might have conflicted with the line’s placement. The question of whether the choice of 

14 feet from the intersection instead of a smaller number within the standard (which 

would have provided more clearance from the railroad tracks) was unwise pertains to 

reasonableness—the third element of design immunity—and will be discussed below.

The trial court found that the second element of design immunity was satisfied 

based on Caltrans’s plans showing that the design was approved and the work was done 

as approved. Caltrans admits, however, that the design element at issue—the placement 

of the stop line—was not specified in the approved plans and that a field engineer had to 

make the decision while construction was underway. Randy’s Trucking’s arguments in 

this appeal focus primarily on the question of whether design immunity can be established 

on the basis of approved plans that did not include a specification of the design element 

that caused the plaintiff’s injury. (See, e.g., Grenier, supra, 57 Cal.App.4th at p. 941, 

fn. 7 [“If the injury-producing element was not a part of the discretionarily approved 

design, immunity is defeated.”].) Because we uphold the judgment based on approved 
13.

standards, not approved plans, it is unnecessary for us to address this question. Randy’s 

Trucking also argues that Caltrans’s plans do show a position for the stop line and that the 

actual placement of the line differs from that position; it further argues that the trial court 

abused its discretion in excluding its expert’s opinion that this is what Caltrans’s plans 

show. Again, we need not address these contentions because we uphold the judgment 

based on construction in conformity with approved standards, not approved plans.

IV. Design immunity: third element

We turn to the third element of design immunity, substantial evidence of the 

reasonableness of that which was approved. We deal here with the question of whether a 

reasonable public employee or body could have adopted the state’s standards for the 

placement of stop lines. 

It has been held that approval of a plan “by competent professionals can, in and of 

itself, constitute substantial evidence of reasonableness.” (Grenier, supra, 57 

Cal.App.4th at p. 941.) We see no reason why the same proposition would not apply to 

the approval of standards by competent authority. As we have said, the fact that the state 

issued the Caltrans Traffic Manual and the California Manual on Uniform Traffic Control 

Devices supports a reasonable inference that those manuals and the standards they contain 

were approved by officials with authority to approve them. Their official issuance is 

comparable to an expert opinion favoring the conclusion that they are reasonable. Where, 

as here, no reasons have been presented to doubt that the standards in an official 

publication were reasonably adopted, we conclude that their promulgation itself is 

substantial evidence of their reasonableness. Randy’s Trucking makes no argument to the 

contrary. 

Although the parties cite no authority on the point, we will assume for the sake of 

argument that the choice of a specific placement of the stop line within the limits set by 

the state standards must also be shown to be reasonable by substantial evidence. 

Nystrom’s declaration provides the necessary evidence. Nystrom declared that 65-foot 
14.

trucks require a 50-foot turning radius. Given this required radius, trucks turning left 

from southbound Central Valley Highway onto eastbound Los Angeles Avenue would be 

unable to clear a vehicle stopped at the stop line at issue in this case if it had been placed 

further forward. “[I]t is clear,” Nystrom declared, that “the stop bar was appropriately 

located ... to avoid conflicts between turning trucks from the southbound leg of the 

intersection onto eastbound E. Los Angeles.” She further opined that, “if the stop bar 

were moved closer toward the intersection and trucks turning from the southbound leg 

were unable to complete their left turn in one sweep, it would prohibit and/or delay the 

free movement of westbound vehicles stopped at the subject intersection.” As for the risk 

of truck-train collisions arising from the chosen placement, Nystrom stated: “Once a 

westbound driver stops at the limit line he/she may then pull forward to improve their 

position prior to crossing. If the truck driver moved forward prior to the train’s crossing, 

without entering the intersection, the truck’s trailer would have cleared the tracks and not 

have been hit.” It has been held that “[t]he practice of stopping at a limit line and then 

‘creeping’ forward to a point of visibility has long been recognized as ‘practical’ under 

California Law. (See Smith v. Pellissier (1955) 134 Cal.App.2d 562, 570 ....)” (Hefner 

v. County of Sacramento (1988) 197 Cal.App.3d 1007, 1016, overruled on other grounds 

by Cornette, supra, 26 Cal.4th at p. 74, fn. 3.) A similar notion applies here. 

In the trial court, Randy’s Trucking argued that the unreasonableness of the stop 

line placement was obvious and that Nystrom’s opinion was so clearly flawed that the 

court should reject it. Randy’s Trucking’s experts Crommelin and King both opined that 

the placement of the stop line was unreasonable. In effect, Randy’s Trucking’s position 

was that the danger presented by the line placement was so clear, and its claimed benefit 

so insignificant, that reasonable minds could not differ on the subject, despite Nystrom’s 

opinion. Randy’s Trucking does not renew this contention in its appellate briefs. In our 

view, we are merely presented with conflicting evidence over the reasonableness of the 

line-placement decision. Since our task is only to determine whether the evidence 
15.

supporting the defense is substantial, it does not matter which side we consider to have 

the stronger position. We conclude that the evidence supporting the defense is 

substantial. 

V. Prior accidents

In its appellate briefs, Randy’s Trucking discusses the reports of prior accidents at 

the intersection. It says these accidents placed Caltrans on notice that the design of the 

intersection was dangerous and the trial court abused its discretion in excluding evidence

of them. 

This discussion of prior accidents could be relevant to two legal issues. First, it 

could be relevant to the issue of whether there was a dangerous condition of public 

property in the first place. It is unnecessary to address that issue, however; the 

determination that the design-immunity defense has been established presupposes that,

even if there was a colorable claim of a dangerous condition of public property, the public 

entity defendant is shielded from liability. 

Second, the prior accidents could be relevant to a claim that Caltrans lost its design 

immunity because of a physical change in conditions on the property. Section 830.6 

provides that a public entity can lose its design immunity if property changes and ceases 

to be in conformity with an approved plan or standard. A plaintiff claiming that design 

immunity has been lost must show that: (1) a change in physical conditions has made the 

property dangerous; (2) the public entity had actual or constructive notice of the change; 

and (3) the public entity had reasonable time to obtain funds to bring the property back 

into conformity or, failing that, had not made a reasonable attempt to provide a warning. 

(Cornette, supra, 26 Cal.4th at p. 72.) Again, it is unnecessary to discuss the accident 

reports or their exclusion from evidence in the context of this issue. In its papers 

responding to the motion for summary judgment, Randy’s Trucking conceded that it is 

undisputed that there has been no change in physical conditions at the intersection since 

Caltrans performed its work there in 1990. Accidents or an increase in accidents cannot 
16.

provide notice of a change in physical conditions if no change in physical conditions has 

taken place. 

VI. Trap and failure to warn

Finally, Randy’s Trucking argues that the trial court erred when it rejected the 

claim that the intersection is a “trap” for tractor-trailer drivers because there is no sign 

warning them about the distance between the railroad tracks and the stop line. Randy’s 

Trucking says that, “[w]ithout citation to any evidence ... the trial court substituted its 

own perceptions to conclude that the physical layout was sufficiently obvious that truck 

drivers would be aware that certain trailer lengths might not clear the tracks ....” 

We need not decide whether the trial court’s reasoning was correct. Caltrans relies 

on a different approach. It contends that, because Randy’s Trucking failed to plead a 

cause of action for failure to warn in its complaint, it cannot rely on the trap doctrine as a 

reason to deny summary judgment. Randy’s Trucking does not attempt to rebut this 

argument in its reply brief. We conclude that the argument is correct. 

Design immunity is a defense to a claim of a dangerous condition of public 

property. Presumably, if the trap doctrine were an exception to this defense, a plaintiff 

would not be required to plead it specifically in a complaint alleging a dangerous 

condition of public property, since plaintiffs generally are not required to anticipate 

defenses in their pleadings. (Jaffe v. Stone (1941) 18 Cal.2d 146, 158-159.) Contrary to 

the description in Randy’s Trucking’s papers opposing the motion for summary judgment, 

however, the trap doctrine is not an exception to the design-immunity defense set forth in 

section 830.6. Instead, it is an exception to the immunity for failure to post warning signs 

set forth in section 830.8, which is a defense to a claim of a failure to warn. Randy’s 

Trucking did not plead a failure to warn. In other words, Randy’s Trucking is relying on 

an exception to a defense to a cause of action it did not assert in its complaint. 

A motion for summary judgment can be resisted only on the basis of claims 

pleaded in the complaint. “‘The pleadings delimit the issues to be considered on a motion 
17.

for summary judgment. [Citation.]’ (Turner v. State of California (1991) 232 

Cal.App.3d 883, 891 ....) 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 ....)” (Laabs v. City of Victorville

(2008) 163 Cal.App.4th 1242, 1253.) Consequently, Randy’s Trucking would have had 

to plead a failure to warn before it could invoke the trap exception in opposing the motion 

for summary judgment. Caltrans’s motion for summary judgment could not properly 

have been denied on the ground that it failed to overcome a cause of action that Randy’s 

Trucking did not plead. 

This conclusion does not mean Randy’s Trucking can revive the lawsuit by now 

seeking leave to amend its complaint to allege a cause of action for failure to warn. “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.” (Destefano v. Forester (2001) 85 

Cal.App.4th 1249, 1264-1265, italics added.) There is no right to seek leave to amend for 

the first time on or after appeal. (Id. at p. 1265.)

VII. Evidentiary rulings

Randy’s Trucking maintains that the trial court abused its discretion when it 

sustained Caltrans’s objections to its expert opinions and the evidence of prior accidents. 

We have held, however, that the opinion of Caltrans’s expert is substantial evidence of

the reasonableness of the stop line’s placement with or without the admission of the 

contrary expert opinions. We have also held that summary judgment is appropriate 

regardless of prior accidents because Caltrans has established design immunity, and 

Randy’s Trucking has not shown a triable issue regarding the loss of design immunity. 

Therefore, the issue of the evidentiary rulings is moot and we need not consider it further.
18.

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal. 

_____________________

Hoff, J.*

WE CONCUR:

_____________________

 Cornell, Acting P.J.

_____________________

 Detjen, J.

 

*

Judge of the Superior Court of Fresno County, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.