Filed 12/17/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

UN SUK GUERNSEY, by and through 

her Conservator, CARA GUERNSEY et 

al.,

Plaintiffs and Appellants,

v.

CITY OF SALINAS et al.,

Defendants and Respondents.

 H043283

 (Monterey County

 Super. Ct. No. M126693)

A driveway into the Westridge Shopping Center meets North Davis Road at a Tintersection in the City of Salinas (City). A 12-foot-wide crosswalk runs across the 

driveway on City property. The crosswalk was originally painted in 1997 and never 

repainted. A City ordinance provided that the City “shall . . . maintain crosswalks at 

intersections . . . by appropriate . . . marks . . . .”

1

 (Salinas Municipal Code, § 20-43.) By 

2013, the crosswalk had “faded” considerably. In 2013, plaintiff Un Suk Guernsey was 

crossing the driveway in the faded crosswalk when a truck that was turning left from 

1

Salinas Municipal Code section 20-43 provides: “The city traffic engineer shall 

establish, designate, and maintain crosswalks at intersections and other places by 

appropriate devices, marks, or lanes upon the surface of the road-way, as follows: 

Crosswalks shall be established and maintained at all intersections within the central 

traffic district; and at such other intersections outside of such district and at other 

locations within or outside of such district as are designated by any ordinance or 

resolution.” 

 
North Davis Road into the driveway struck and severely injured her. Guernsey and her 

husband

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sued the City, Celia Capulin (the driver of the truck), and others. Guernsey’s 

action against the City alleged that the City’s property was in a dangerous condition. 

(Gov. Code, § 835.)

At the jury trial, over Guernsey’s objections, the court gave a special “[d]esign of

the [d]riveway” jury instruction requested by the City, refused to give jury instructions 

requested by Guernsey on negligence per se (CACI No. 418) and mandatory duty (CACI

No. 423) based on the City ordinance, and provided the jury with a special verdict form 

containing two fact-specific questions on dangerous condition to which Guernsey 

objected. The jury returned a multi-million dollar verdict against Capulin, but it found 

for the City on the two fact-specific dangerous condition questions. The jury wrote on 

the verdict form: “Paint the xwalk Salinas!” The trial court awarded the City its expert 

witness fees under Code of Civil Procedure section 998 after finding that the City’s 

$250,000 pretrial offer was reasonable.

On appeal, Guernsey contends that the trial court prejudicially erred by (1) giving 

the City’s requested “[d]esign of the [d]riveway” instruction, (2) using the two factspecific dangerous condition questions on the special verdict form, (3) refusing to give 

the mandatory duty and negligence per se instructions, and (4) awarding the City its 

expert witness fees. We conclude that the trial court prejudicially erred in giving the 

City’s requested “[d]esign of the [d]riveway” instruction over Guernsey’s objections. We 

therefore reverse the judgment in favor of the City.

I. Evidence Presented At Trial

The crosswalk across the driveway was originally painted in 1997 with 12-inchwide lines consisting of thermoplastic paint. Thermoplastic material lasts for five to 10

2

We will refer to plaintiffs as Guernsey since their interests do not diverge.

2

 
years. By 2013, the crosswalk’s lines had faded so much that they “weren’t visible” but 

for some “remnants” near the curbs. It costs about $1,000 and takes about an hour to 

repaint a crosswalk. 

The City’s Municipal Code requires it to maintain its crosswalks, but the City has

no program for inspecting them. Instead, maintenance is “[l]argely complaint driven.” 

The City adopted the Caltrans Traffic Manual, which became the “MUTCD” (Manual on

Uniform Traffic Control Devices), and it requires crosswalks to have solid white lines, no 

less than 12 inches wide. The City knew that the failure to maintain crosswalk lines 

could be dangerous to pedestrians because the purpose of crosswalk markings is to warn 

motorists to expect pedestrians at that location. 

Next to the crosswalk was a 16-foot-wide strip of pink stamped concrete that also 

went across the driveway. The pink concrete was not on the City’s property, nor was it 

controlled by the City. The stop sign for traffic exiting the driveway onto North Davis 

Road was not next to the crosswalk but in the pink concrete area, about 11 feet from the 

crosswalk. On the north side of the intersection, next to the driveway’s entrance lane, tall

bushes hanging over the sidewalk limited the ability of a driver of an exiting vehicle to 

see southbound traffic. Most of the bushes were not on the City’s property, but the City 

had the authority to require that the owner of the bushes trim them or to have them 

trimmed and charge the owner. The City did not trim the bushes or require them to be 

trimmed. No prior pedestrian accidents had occurred at the intersection between the 

driveway and North Davis Road. 

On February 8, 2013, Darel Sorenson was in his vehicle heading toward the 

driveway’s exit when he saw Guernsey approaching from his right. She was “on the 

sidewalk” 15 to 20 feet away from Sorenson’s vehicle “down at the other end” by North 

Davis Road. He stopped his vehicle “prior to the stop sign.” Guernsey crossed the 

driveway in the crosswalk in front of Sorenson’s vehicle, looked at him, “jogged in place 

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a second or two” in front of his vehicle and then continued northbound. Sorenson 

proceeded to the stop sign and then looked to his left and saw Guernsey on the ground. 

Capulin was driving a GMC pickup truck northbound on North Davis Road. She

got into the left turn pocket to turn left into the driveway into Westridge Shopping 

Center. The left turn pocket had no signal or stop sign. Capulin was familiar with the 

intersection because she had been going to the Costco in the shopping center at least 

monthly for more than a decade. She had exited the driveway “hundreds of times.” 

Capulin brought her truck to a stop because there was southbound traffic. After the 

southbound traffic passed, several vehicles exited the driveway by making right turns

onto North Davis Road. Her view of the sidewalk was blocked because there were 

vehicles exiting the driveway that had pulled up to see whether southbound traffic was 

coming. Before Capulin turned, she saw the pink concrete, which she considered to be

one of the “walkways or crosswalks” because she had “always seen people walk on that.” 

She did not see any painted crosswalk lines, but she “knew there possibly had been a 

crosswalk there prior” where the “faded lines” were. After waiting for a southbound 

“straggler” vehicle to pass, Capulin looked to her left, looked to her right, and then 

proceeded to make her left turn. As she turned, she was looking ahead to the “pink 

crosswalk.” The next thing she saw was “something flying from my left,” which was 

Guernsey. Guernsey was already in the crosswalk when Capulin began her left turn. 

Capulin felt a “thud” against her truck, and her truck “rolled forward” for “a few 

seconds” before she saw Guernsey lying there and stopped her truck. 

Guernsey suffered a “severe traumatic brain injury,” numerous orthopedic injuries, 

a collapsed lung, a lacerated liver, and other injuries. She was in a coma for a month, and 

she will require 24-hour care for the rest of her life. Guernsey is primarily wheelchairbound and has only a limited ability to communicate. 

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II. Procedural Background

The only cause of action against the City that was submitted to the jury was 

Guernsey’s third cause of action for a dangerous condition of public property. In her 

opening statement, Guernsey asserted that the City “created this dangerous condition by 

failing to maintain the crosswalk.” The City admitted in its opening statement that “[t]he 

crosswalk lines are faded.” Capulin’s trial counsel asserted in opening statement that the 

intersection was “confusing” because of “the pink,” and that “the pink,” the bushes, and 

the stop sign location could have “played a role” in the accident. 

The causes of the accident were hotly contested at trial. Guernsey’s experts

identified several factors that could have contributed to the accident. The six-inch-wide 

“A-pillar” in Capulin’s truck created a blind spot that obstructed Capulin’s vision of 

objects to the left of her truck. Due to the bushes, a vehicle exiting from the driveway 

would have to move forward from the stop sign into the crosswalk to see whether there 

was southbound traffic coming. The faded crosswalk created different expectations for a 

pedestrian than for a driver. While a pedestrian would reasonably expect the crosswalk 

to be a “safe zone” once she had entered it, the absence of plainly visible crosswalk 

markings would cause a driver’s attention to be drawn to the visually distinct pink cement 

area, particularly since that is where the stop sign required vehicles to stop. Thus, the

“completely faded” crosswalk “created a very confusing visual environment” for “leftturning vehicles.” In contrast, had there been a clearly visible “marked crosswalk,” it 

would have created a “visual cue” for a driver to watch for pedestrians in the crosswalk. 

After Guernsey’s case-in-chief, the court denied the City’s motion for nonsuit on 

the dangerous condition cause of action, but it noted what it perceived to be weaknesses 

in Guernsey’s case on that cause of action. The City’s experts testified that the crosswalk 

markings were not responsible for the accident. In their view, the presence or absence of 

crosswalk markings would not influence the accident rate at an intersection. However, 

“[i]f drivers don’t see a crosswalk and have no idea there’s a possible crossing there, 

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then, yes, drivers may be less responsive to pedestrians.” A City expert asserted that this 

intersection did not need a “marked crosswalk” and crosswalk lines would be “very 

useless” to a driver because a driver would be able to see only a small part of the painted 

lines.

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He conceded that a car would have to pull up into the crosswalk in order to see 

around the bushes while exiting the driveway. Yet he insisted that neither the crosswalk, 

which had received in his view “poor maintenance,” nor the untrimmed bushes created a 

dangerous condition. 

Capulin’s expert testified that the most reasonable explanation for the accident 

was that an exiting vehicle had blocked Capulin’s view of Guernsey, who he concluded

had gone behind the vehicle because the vehicle was blocking the crosswalk due to the 

driver’s need to look past the overgrown bushes. Alternatively, this expert believed that 

Capulin’s view of Guernsey was blocked by the “straggling car” that was proceeding 

southbound. 

At the City’s request, and over Guernsey’s objections, the court instructed the 

jury: “Plaintiffs have not alleged that the design of the Driveway created a dangerous 

condition. Instead, Plaintiffs have alleged that it was the City’s failure to maintain the 

crosswalk lines and the bushes that created a dangerous condition. [¶] To find that the 

Driveway presented a dangerous condition, you cannot rely on characteristics of the 

Driveway itself (e.g., the placement of the stop sign, the left turn pocket, and the presence 

of the pink cement). Although you can consider those elements of the Driveway when 

weighing whether or not the faded crosswalk lines and bushes created a dangerous 

condition, you cannot rely on those design elements of the intersection to find that a 

dangerous condition existed.” The court also instructed the jury with the following 

3

Nevertheless, he testified that the City should repaint the lines if it was going to 

keep the crosswalk or remove them if it did not want to keep the crosswalk and that the 

City should have the bushes trimmed. 

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instruction, to which both parties agreed: “The City of Salinas’ property may be 

considered dangerous if a condition on adjacent property, such as the pink stamped 

concrete or the location of the stop sign, exposes those using the public property to a 

substantial risk of injury in conjunction with the adjacent property.” 

The verdict form, which was provided to the jury over Guernsey’s objections, 

contained questions 2a and 2b about the City’s liability for a dangerous condition, with 

the word “or” between the two questions. Question 2a asked: “Was the property in a 

dangerous condition at the time of the incident because of the lack of crosswalk lines 

and/or bushes on the City’s property? [¶] ___ Yes ___ No.” Question 2b asked: “Was 

the property in a dangerous condition at the time of the incident because of lack of 

crosswalk lines and/or bushes in conjunction with one or more conditions on adjacent 

property? [¶] ___ Yes ___ No [¶] If yes, check one or both: [¶] ___ Pink concrete [¶] 

___ Location of stop sign.” 

Guernsey’s trial counsel argued to the jury: “The City of Salinas did not maintain 

the crosswalks. [¶] The faded lines make the pink walkway more prominent, and the 

overgrown bushes created a dangerous condition, which led to the dangerous condition, 

and an inattentive driver that went in to the crosswalk, striking Mrs. Guernsey.” She 

argued that Capulin “saw the pink concrete and thought the pink was the crosswalk.” Her 

argument was that the faded crosswalk lines made Capulin mistake the pink concrete for 

the crosswalk. This created a dangerous condition because a pedestrian in the crosswalk 

was closer to a left-turning driver than a pedestrian in the pink concrete walkway would 

be. She also relied on the City’s failure to “trim the bushes down to three feet” because 

the bushes “blocked the view of the southbound traffic . . . .” “I just wanted to remind 

you that we’re not talking about the design of this intersection. [¶] It’s the lack of 

maintenance, that the driveway was in this dangerous condition. [¶] In relationship to 

the placement of the stop sign and pink cement and the left turn pocket, the situation, the 

entire situation out there, but with specific factors that we have discussed, particularly the 

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pink.” She specifically addressed how the jury should respond to questions 2a and 2b on 

the verdict form. 

The City argued to the jury that the faded crosswalk lines and the bushes had not 

been a substantial factor in causing the accident. “As you have seen, you can say this 

crosswalk’s stripes were faded, but it was not a cause of this accident.” The City also 

argued: “[D]id the crosswalk stripes and the bushes that were part of the City and the 

bushes that were part of Costco and the pink cement that was part of Costco and Sammut 

Brothers, the developers, did the stripes in conjunction with those -- was that a substantial 

factor in Mrs. Guernsey’s accident? [¶] And the answer is no.” It argued that Guernsey 

was responsible for the accident. Capulin’s trial counsel argued that Guernsey had not 

been in the crosswalk but “in the pink” when Capulin began her left turn. 

During deliberations, the jury initially submitted three questions to the court. One 

of them sought “ ‘a legal definition of “dangerous condition”?’”

4

 The parties agreed that 

the answer to this question was to refer the jury back to CACI No. 1102. The jury 

subsequently submitted a fourth question: “‘What is the difference between a

“substantial risk” as opposed to a “minor risk”? Is there a legal definition for these 

terms?’” The court responded: “That is actually a question that you must decide based 

on the evidence that you have heard in this case and with reference to the instruction that 

you have been given, and I think you have a copy of it. It’s the one that’s marked ‘1102’

at the top, which reads ‘A “dangerous condition” is a condition of public property that 

creates a substantial risk of injury to members of the general public when the property is 

used with reasonable care and in a reasonably foreseeable manner. A condition that 

creates only a minor risk of injury is not a “dangerous condition.” Whether the property 

is in a dangerous condition is to be determined without regard to whether Celia Capulin 

or Un Suk Guernsey exercised or failed to exercise reasonable care in her use of the

4

The other two questions concerned the MUTCD. 

8

 
property.’” Finally, the jury asked: “ ‘Do we need to answer both questions when 

presented with the word “or”? Examples are questions 2(a) 2(b) and question 6. Do we 

answer both or one?’” The court responded: “the answer is both.” 

The jury thereafter returned its verdict. On questions 2a and 2b, which concerned 

whether the property was in a dangerous condition, the jury answered both questions

“No.” The jury found that Capulin had been negligent, that Guernsey’s damages were 

over $7 million, that Capulin was 70 percent responsible, and that Guernsey was 30 

percent responsible. The jury was polled, and all 12 jurors affirmed that this was their 

verdict. After the jury had been polled, the foreperson asked if he could “say something 

on behalf of the jury.” He said: “Please paint the crosswalk lines.” The court pointed 

out that the same message was also written on the verdict form, which said “P.S. Paint 

the xwalk Salinas!” The court entered judgment on the jury’s verdict in December 2015. 

Guernsey subsequently brought a motion for a new trial as to the City. She argued 

that (1) the verdict form’s questions 2a and 2b, which asked whether the City’s property 

was in a dangerous condition, erroneously “narrowed” the jury’s dangerous condition 

inquiry; (2) the “[d]esign of the [d]riveway” instruction was prejudicially erroneous; (3) 

the trial court’s refusal to give CACI No. 418 and CACI No. 423 was prejudicially 

erroneous; and (4) the court failed to give appropriate responses to the jury’s questions. 

Her motion relied on numerous juror declarations. The court denied the new trial motion

and awarded the City its expert witness fees as costs under Code of Civil Procedure 

section 998. Guernsey timely filed a notice of appeal from the judgment and the costs 

order. 

III. Discussion

Guernsey contends that the trial court prejudicially erred in instructing the jury 

with the City’s “[d]esign of the [d]riveway” instruction.

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A. Background

In response to Guernsey’s dangerous condition cause of action, the City pleaded as 

an affirmative defense in its answer that the physical conditions of the intersection had 

not changed after the approval of its design. This affirmative defense is commonly

known as design immunity. When the City moved for summary judgment, Guernsey 

argued, among other things, that the design of the intersection was not reasonable. 

Guernsey’s trial brief argued that the left turn pocket, the pink concrete, and the location 

of the stop sign were factors, along with the faded crosswalk lines and the bushes, in 

causing the accident. 

At the commencement of trial, the City’s trial counsel expressed confusion about 

whether Guernsey was pursuing her allegations of “defective design,” and Guernsey’s 

trial counsel told the court that she was “not saying the design caused the dangerous 

condition” so “design immunity doesn’t come in to [sic] play.” She said that she was

pursuing only “failure to maintain for which there is no immunity.” The City’s trial 

counsel asked whether Guernsey was “going to argue the location of the stop sign is a 

causative factor in this accident, defective and it caused -- or the left turn lane channelling 

lane, the curb radius and so on.” Guernsey’s trial counsel responded that “the stop sign is 

still at issue” because it was on adjacent property and the City “would be liable for 

having a condition on their property in conjunction with [a] dangerous condition on 

adjacent property.” The City’s trial counsel sought confirmation of his “understand[ing]” 

that “there are going to be no jury instructions on defective design.” Guernsey’s trial 

counsel confirmed as much and said that “the whole design process . . . [that] goes into 

design immunity . . . we’re not doing that.” The City’s trial counsel responded: “It’s 

more clear.” 

The City subsequently asked the trial court to exclude “design defect” evidence by

precluding Guernsey’s trial counsel from asking questions about various aspects of the 

intersection that the City claimed were relevant only to the intersection’s “design.” 

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Guernsey’s trial counsel argued that evidence about the “pink . . . walkway” and “the stop 

sign” was properly placed before the jury because the City could not “get design 

immunity for” “items” that “are on private property.” She disclaimed any contention that 

the left turn pocket, which was on the City’s property, was “defective.” She explained: 

“[W]e are not saying that defect in the design, the original design of public property, 

caused the incident. [¶] It’s the failure to maintain the crosswalk line[s] and the 

existence of the pink concrete, the stop sign, they all just explain what happened in the

situation with the various drivers, the pedestrian, the site obstructions, what have you.” 

She confirmed that her position was that “this is a dangerous condition of public property 

because of the failure to maintain the crosswalk lines, because of the crosswalk lines

being in disrepair, then the adjacent property of the public’s property contributes to the 

perception of the driver and what they are perceiving in terms of what’s the pink, what’s 

not the pink, where is someone going to be crossing.” The court denied the City’s 

motion.

5

 

At trial, one of Guernsey’s experts testified that the “intersection” was a 

“dangerous condition” due to (1) the “disintegrated paint” on the crosswalk, (2) the 

“confusion” arising from the stop sign’s location in the pink cement area, (3) the fact that 

the pink cement was eye-catching and immediately adjacent to the crosswalk, and (4) the 

untrimmed bushes that made it difficult for drivers exiting the driveway to see 

southbound traffic without pulling up into the crosswalk. He expressed the opinion that a 

left-turning driver “wasn’t really warned this is a crosswalk.” He also testified that the 

placement of the stop sign contributed to confusion about where the crosswalk was 

located. This expert testified that the faded crosswalk was a factor in causing this 

accident, particularly because it was next to the “more prominent” pink cement. On 

5

During the trial, the City objected at times to “design testimony,” and some of its 

objections were sustained. 

11

 
cross, he said that the confusing factors were the “combined” impact of the faded 

crosswalk, the pink cement, and Sorenson’s “stopping” twice. 

The City requested a “[d]esign of the [d]riveway” instruction stating: “Plaintiffs 

have not alleged that the design of the Driveway created a dangerous condition. Instead, 

Plaintiffs have alleged that it was the City’s failure to maintain the crosswalk lines and

the bushes that created a dangerous condition. [¶] To find that the Driveway presented a 

dangerous condition, you cannot rely on characteristics of the Driveway itself (e.g., the 

placement of the stop sign, the left turn pocket, and the presence of the pink cement). 

Although you can consider those elements of the Driveway when weighing whether or 

not the faded crosswalk lines and bushes created a dangerous condition, you cannot rely 

on those design elements of the intersection to find that a dangerous condition existed.” 

Guernsey’s trial counsel objected to the City’s proposed “[d]esign of the 

[d]riveway” instruction on the ground that it was unnecessary. She proposed an 

“alternative” instruction: “Plaintiffs have not alleged that the design of North Davis 

Road, including the crosswalk, created a dangerous condition. Instead, Plaintiffs have 

alleged that it was the City’s failure to maintain the crosswalk and the bushes that created 

a dangerous condition. Plaintiffs have also alleged that the crosswalk may be considered 

dangerous if a condition on adjacent property, such as the pink stamped concrete and the 

location of the stop sign, exposed those using North Davis Road to a substantial risk of 

injury. [¶] To find that the intersection presented a dangerous condition, you cannot rely 

on the design characteristics of the intersection itself (e.g., design decision on the location 

of the left turn pocket).” 

During the instruction conference, the court asked Guernsey’s trial counsel 

“[w]hat are you going to be arguing the ‘dangerous condition’ is?” Guernsey’s trial 

counsel replied: “The failure to maintain the crosswalk lines” “in combination with the 

bushes.” The City argued that its proposed “[d]esign of the [d]riveway” instruction was 

necessary to “clarify” that “the location of the stop sign is not an issue for us, the pink 

12
cement is not an issue for us.” The court suggested that the City’s proposed instruction 

“would be pretty important to avoid the confusion.” The City argued: “The jury has 

heard all that evidence, and it needs to be clarified for them that the location of the stop 

sign -- without saying it, that that location of the stop sign, the left turn channel, and so 

on are not -- not being alleged to have been the cause of this accident, and this instruction 

does that[.]” The court agreed with the City: “I think it’s very confusing to the jury to --

well, confusing to everyone, I think, that the Plaintiffs can use all the design factors to 

talk about the dangerous conditions but is not asserting dangerous design, and I think that 

the jury will -- I think the jury will look to the individual design elements and some will 

be upset about the placement of the stop sign, and some will be upset wi[th] the left turn 

pocket, some will be upset about the pink cement.” The court therefore granted the 

City’s request and instructed the jury with the “[d]esign of the [d]riveway” instruction. 

B. “Design of the Driveway” Instruction Was Erroneous

Guernsey contends that the trial court erred in giving the “[d]esign of the

[d]riveway” instruction because the instruction was “irrelevant” and “ambiguous,” and it 

“repeated and thus unduly emphasized factors the jury could not rely on to find a 

dangerous condition.” (Italics omitted.) The City claims that the instruction was 

required because the jury needed to be informed that Guernsey was not claiming that the 

City was liable based on the design of the intersection so that the jury would not premise 

liability on the intersection’s design.

The City contends that Guernsey forfeited her challenges to the “[d]esign of the 

[d]riveway” instruction by failing to object on these grounds below. “It is settled that a 

party may not complain on appeal that an instruction correct in law is too general or 

incomplete unless he had requested an additional or qualifying instruction.” (Agarwal v. 

Johnson (1979) 25 Cal.3d 932, 948, disapproved on a different point in White v. 

Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) “A party may, however, challenge on 

13
appeal an erroneous instruction without objecting at trial.” (Lund v. San Joaquin Valley 

Railroad (2003) 31 Cal.4th 1, 7.) Guernsey objected below that the instruction was 

“misleading,” not “necessary,” and confusing because “[w]e’re not going on design,” and 

the instruction “makes it sound like the City should be entitled to design immunity . . . .” 

She also objected that the instruction was “erroneous” because it “does not take into 

account adjacent property liability and the fact that a dangerous condition can exist 

because of the adjacent property . . . .” Guernsey does not complain on appeal that the 

“[d]esign of the [d]riveway” instruction was too general or incomplete; she claims that 

the instruction was erroneous. We conclude that she did not forfeit her objections to this 

instruction.

The City argued below, and the trial court agreed, that the “[d]esign of the 

[d]riveway” instruction was necessary to inform the jury that Guernsey was not 

premising liability on the City’s design of its property. Yet the instruction was not 

limited to providing just that information. Guernsey’s proposed alternative instruction 

was so limited. Instead, the City’s instruction went on to implicitly presume that the City 

had established that it was entitled to design immunity without that issue ever having 

been presented to the trial court and, critically, to extend this presumed design immunity 

to elements of the driveway that were not on the City’s property and therefore could not 

properly have been the subjects of the City’s presumed design immunity.

6

As Guernsey 

6

“The usual methods for raising a design immunity defense are motion for 

summary judgment [citation]; motion for nonsuit [citation]; motion for directed verdict

[citation]; or a combination of these motions [citation]. On submitting such motions, the 

trial court is invited, and is in a position, to rule whether the evidence is sufficient to 

support the design immunity defense [citation]. If the trial court determines that the 

defense has been established, the jury is instructed that the public entity is immune as a 

matter of law for design-related damages, but if the damage is unrelated to the design 

(e.g., it results from improper construction or improper maintenance), then the public 

entity may still be liable [citations].” (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 

565, 573, disapproved on a different point in Cornette v. Department of Transportation

14

 
repeatedly pointed out to the trial court, the pink cement and the stop sign were on 

adjacent property that was neither owned nor controlled by the City and therefore were 

not “design” elements of the City’s property that could be the subjects of a design 

immunity defense.

The third and fourth sentences of the City’s “[d]esign of the [d]riveway” 

instruction improperly told the jury that it could not “rely on” elements of the driveway, 

including “the placement of the stop sign, the left turn pocket, and the presence of the 

pink cement” in deciding whether “a dangerous condition existed.” This was legally 

incorrect, and it directly conflicted with another instruction given to the jury, which told 

it that the City’s “property may be considered dangerous if a condition on adjacent 

property, such as the pink stamped concrete or the location of the stop sign, exposes those 

using the public property to a substantial risk of injury in conjunction with the adjacent

property.” Giving the jury these two conflicting instructions could not have been 

anything but hopelessly confusing to the jury. Consequently, we must conclude that the 

trial court erred in giving the “[d]esign of the [d]riveway” instruction.

C. Instructional Error Was Prejudicial

The City argues that even if the trial court erred in giving the “[d]esign of the

[d]riveway” instruction, the error was not prejudicial. “[I]nstructional error requires 

reversal only ‘ “where it seems probable” that the error “prejudicially affected the 

verdict.” ’ [Citation.] The reviewing court should consider not only the nature of the 

error, ‘including its natural and probable effect on a party’s ability to place his full case 

before the jury,’ but the likelihood of actual prejudice as reflected in the individual trial 

record, taking into account ‘(1) the state of the evidence, (2) the effect of other 

(2001) 26 Cal.4th 63, 74.) In this case, improper maintenance was Guernsey’s only 

theory of dangerous condition liability against the City at trial.

15

 
instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury 

itself that it was misled.’” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983

(Rutherford); see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571

(Soule).) 

Guernsey argues that the jury’s verdict was “close,” that the jury used the 

“[d]esign of the [d]riveway” instruction in answering the critical questions on the verdict 

form, questions 2a and 2b, and that the jurors understood the “[d]esign of the [d]riveway” 

instruction to preclude it from holding the City liable. Guernsey relies in part on juror 

declarations that she presented to the trial court in support of her new trial motion, and 

she contends that these juror declarations were admissible evidence. The City claims that 

the juror declarations were inadmissible under Evidence Code section 1150. The City

also contends that neither the juror declarations nor the jury’s questions to the court 

establish that the “[d]esign of the [d]riveway” instruction was prejudicial. 

Evidence Code section 1150 provides: “(a) Upon an inquiry as to the validity of a 

verdict, any otherwise admissible evidence may be received as to statements made, or 

conduct, conditions, or events occurring, either within or without the jury room, of such a 

character as is likely to have influenced the verdict improperly. No evidence is 

admissible to show the effect of such statement, conduct, condition, or event upon a juror 

either in influencing him to assent to or dissent from the verdict or concerning the mental 

processes by which it was determined. [¶] (b) Nothing in this code affects the law 

relating to the competence of a juror to give evidence to impeach or support a verdict.” 

(Evid. Code, § 1150, italics added.) “This limitation prevents one juror from upsetting a 

verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or 

reasons for assent or dissent.” (People v. Hutchinson (1969) 71 Cal.2d 342, 350.)

The key statements in the juror affidavits upon which Guernsey relies are: (1) the 

vote on dangerous condition was 9 to 3; (2) a juror changed his vote because he “felt 

outvoted”; (3) it was the foreperson’s handwriting on the “[d]esign of the [d]riveway”

16
instruction; (4) the jury used the instruction to answer questions 2a and 2b; (5) the jury 

discussed and “agreed” that the instruction did not allow them to find a dangerous 

condition; and (6) some jurors “stated” that the City was partially responsible. 

Nearly all of these statements were inadmissible because they were reflections of 

the jurors’ mental processes. “ ‘[W]hen a juror in the course of deliberations gives the 

reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental 

processes. Consideration of such a statement as evidence of those processes is barred by 

Evidence Code section 1150.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 389

(Lewis).) “‘[T]he subjective quality of one juror’s reasoning is not purged by the fact that 

another juror heard and remembers the verbalization of that reasoning. To hold otherwise 

would destroy the rule . . . which clearly prohibits the upsetting of a jury verdict by 

assailing these subjective mental processes. It would also inhibit and restrict the free 

exchange of ideas during the jury’s deliberations.’ ” (Mesecher v. County of San 

Diego (1992) 9 Cal.App.4th 1677, 1683-1684.)

The “mental processes” prohibition applies to juror affidavits conveying jurors’

statements about their understanding of certain words in instructions. (Bell v. Bayerische 

Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1125-1126 (Bell); see 

also People v. Steele (2002) 27 Cal.4th 1230, 1261; People v. Dillon (2009) 174 

Cal.App.4th 1367, 1384, fn. 9.) This prohibition also precludes the admission of a 

statement in a juror affidavit that the polling of the jurors was inconsistent with their 

actual votes (Bossi v. State of California (1981) 119 Cal.App.3d 313, 318) and of 

statements describing the amount of time that the jury spent discussing an issue (People 

v. Davis (2009) 46 Cal.4th 539, 617). 

Guernsey relies on Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606

(Harb). In Harb, the plaintiff claimed that an ambiguous instruction was prejudicial. In 

support of the plaintiff’s motion for a new trial, the plaintiff submitted juror declarations. 

The trial court struck some statements in the declarations but not others. (Harb, at 

17
pp. 623-624.) On appeal, neither party challenged the trial court’s rulings on the 

admissibility of portions of the juror declarations. (Harb, at p. 623.) The Court of 

Appeal noted in passing that the trial court had not erred in failing to strike portions of 

juror affidavits stating that the jury had “discussed” a particular instruction and that jurors 

had “‘verbally agreed’ ” that the instruction “‘did not permit us’ ” to find defendants 

liable. (Harb, at pp. 623-624.) Although the Harb court quoted Bell, it did not explain 

why these statements were not inadmissible under Evidence Code section 1150’s “mental 

processes” prohibition. The Harb court’s dicta on this point is unpersuasive. “ ‘The 

courts have been firm . . . in precluding affidavits which do no more than characterize the 

affiant’s own state of mind [citation] or the state of mind of other members of the jury 

[citations].’” (People v. Romero (1982) 31 Cal.3d 685, 695.)

While there are situations where the fact that a statement was made by a juror 

during deliberations may be admissible, the situation before us is not one of them. 

“Evidence Code section 1150, subdivision (a) does not prohibit admitting a statement that 

reflects a juror’s reasoning processes if the statement itself amounts to juror misconduct, 

comparable to an objective fact such as reading a novel during trial, or consulting an 

outside attorney for advice on law relevant to the case.” (Lewis, supra, 26 Cal.4th at 

p. 389, italics added.) The juror declarations in this case were not aimed at showing juror 

misconduct; they were addressed to the impact of the “[d]esign of the [d]riveway” 

instruction on the jury’s verdict. In this situation, the fact that a juror made a statement 

during deliberations has no probative value for any purpose other than to reveal the 

mental processes of that juror and other jurors. 

None of the information in the juror declarations that Guernsey now relies upon 

was admissible under Evidence Code section 1150 with the possible exception of the 

foreperson’s declaration that the notations on the “[d]esign of the [d]riveway” instruction 

18
had been placed there by him.

7

 Nevertheless, even without the foreperson’s declaration, 

it was undisputed that the jury’s copy of the “[d]esign of the [d]riveway” instruction bore 

handwritten notations. A line had been drawn between the third and fourth sentences of 

the instructions. “2.a.” had been written next to the third sentence, and “2.b.” had been 

written next to the fourth sentence. 

The third and fourth sentences of the “[d]esign of the [d]riveway” instruction read: 

“To find that the Driveway presented a dangerous condition, you cannot rely on 

characteristics of the Driveway itself (e.g., the placement of the stop sign, the left turn 

pocket, and the presence of the pink cement). Although you can consider those elements 

of the Driveway when weighing whether or not the faded crosswalk lines and bushes 

created a dangerous condition, you cannot rely on those design elements of the 

intersection to find that a dangerous condition existed.” The verdict form’s question “2a” 

asked: “Was the property in a dangerous condition at the time of the incident because of 

the lack of crosswalk lines and/or bushes on the City’s property? [¶] ___ Yes ___ No.” 

The verdict form’s question “2b” asked: “Was the property in a dangerous condition at 

the time of the incident because of lack of crosswalk lines and/or bushes in conjunction 

with one or more conditions on adjacent property? [¶] ___ Yes ___ No [¶] If yes, 

check one or both: [¶] ___ Pink concrete [¶] ___ Location of stop sign.” The jury 

answered both questions “No.”

The fact that the “[d]esign of the [d]riveway” instruction given to the jury bore 

notations associating the verdict form’s questions with the erroneous instruction 

demonstrates that the jury’s verdict was influenced by the erroneous instruction. The 

only reasonable inference that could be drawn was that some member of the jury had 

7

The foreperson of the jury, Christopher Chopyk, submitted a declaration in which 

he stated that he had written “2.a.” and “2.b.” on the jury’s copy of that instruction. 

19

 
drawn the line on the instruction between the third and fourth sentences of the instruction 

and written “2.a.” next to the third sentence and “2.b.” next to the fourth sentence. 

The handwriting on the instruction by a member of the jury strongly supports a 

conclusion that the jury used the third sentence of the “[d]esign of the [d]riveway” 

instruction to answer question 2a on the verdict form and the fourth sentence of that 

instruction to answer question 2b on the verdict form. Since these two sentences of the 

instruction were erroneous, and questions 2a and 2b were the critical questions regarding 

whether the City’s property was in a dangerous condition, it “seems probable” that the 

“[d]esign of the [d]riveway” instruction “‘ “prejudicially affected the verdict.” ’ ”

(Rutherford, supra, 16 Cal.4th at p. 983.)

The handwriting on the “[d]esign of the [d]riveway” instruction was not the only 

evidence of prejudice. The “[d]esign of the [d]riveway” instruction conflicted with the 

“adjacent property” instruction, which otherwise could have provided substantial support 

for a finding that the City’s property was in a dangerous condition. The jury submitted 

multiple questions to the court about the meaning of “dangerous condition,” which 

suggested that it was struggling with this issue. And there was significant evidence that

the City’s property was in a dangerous condition since it was undisputed that the 

crosswalk was badly faded and had been poorly maintained. Under these circumstances, 

we find that the trial court prejudicially erred in giving the “[d]esign of the [d]riveway” 

instruction, and reversal is required.

8

 (Soule, supra, 8 Cal.4th at pp. 570-571.) 

8

Since we reverse and remand for a new trial, it is unnecessary for us to address 

Guernsey’s other assertions of instructional error, her claim that the verdict form was 

prejudicially erroneous, or her challenge to the court’s award of expert witness fees.

20

 
IV. Disposition

The judgment is reversed as to the City. Guernsey shall recover her appellate 

costs. 

21
_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Bamattre-Manoukian, J.

Guernsey v. City of Salinas

H043283

22
Trial Court: Monterey County Superior Court

Trial Judge: Honorable Lydia Villarreal

Attorneys for Plaintiffs and Appellants: Valerie T. McGinty

Law Office of Valerie T. McGinty

Daniel U. Smith

Law Office of Daniel U. Smith

Mary E. Alexander

Jennifer L. Fiore

Mary Alexander & Associates, P.C.

Attorneys for Defendants and Respondents: Christopher A. Callihan

Office of the City Attorney

Vincent P. Hurley

Rachel Ostrander

Law Offices of Vincent P. Hurley

Sabrina Heron Strong

Laura Perry Uyeno

Jefferson J. Harwell

O’Melveny & Myers LLP

Guernsey v. City of Salinas

H043283

23