Filed 8/11/21 Rodas v. Dept. of Transportation CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CRUZ VIDAL AREVALO RODAS et al., 

as Personal Representatives, etc.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF 

TRANSPORTATION,

Defendant and Respondent.

 D078581

 (Super. Ct. No. 1-14-CV267867)

CRUZ VIDAL AREVALO RODAS et al., 

as Personal Representatives, etc.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF 

TRANSPORTATION,

Defendant and Appellant.

 D078583
2

CONSOLIDATED APPEALS from an amended judgment and a 

postjudgment order of the Superior Court of Santa Clara County, James L. 

Stoelker, Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by the 

Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) In D078583, 

plaintiff’s cross-appeal dismissed, amended judgment affirmed in part, and 

reversed and remanded in part. In D078581, postjudgment order vacated 

and appeal dismissed.

Jeanne Scherer and Erin E. Holbrook, Chief Counsel, G. Michael 

Harrington, Deputy Chief Counsel, Lucille Y. Baca, Assistant Chief Counsel, 

David Sullivan, Derek S. VanHoften, Layla Labagh for Defendant, Appellant, 

and Cross-Respondent.

Buty & Curliano, Jason J. Curliano and Ondrej Likar, for Plaintiff, 

Respondent, and Cross-Appellant. 

Case No. D078583 is an appeal and a cross-appeal from an amended 

judgment following a jury trial. The State of California Department of 

Transportation (Caltrans) is the appellant and cross-respondent; and Cruz 

Vidal Arevalo Rodas & Gladys H. Ascencio Carpio, as personal 

representatives of the Estate of Kevin Josue Rodas Carpio, are the 

respondents and cross-appellants. Case No. D078581 is an appeal from a 

postjudgment order. Cruz Vidal Arevalo Rodas & Gladys H. Ascencio Carpio, 

as personal representatives of the Estate of Kevin Josue Rodas Carpio, are 

the appellants, and Caltrans is the respondent. The two appellate cases have 

been consolidated for all purposes. 

I. INTRODUCTION

Early one morning in January 2014, 17-year-old Kevin Carpio was 

walking to school in Sunnyvale. He was walking on a sidewalk next to the 
3

Lawrence Expressway, and as he crossed an onramp to southbound U.S. 101

in a marked crosswalk, a car being driven by Patrick Aubin (the driver)

struck him. Sadly, Carpio suffered catastrophic injuries and, during the 

pendency of this appeal, passed away.1

Plaintiff filed the underlying action against Caltrans and others, which 

resulted in a substantial judgment against Caltrans. As relevant to this 

appeal, Plaintiff alleged that the intersection of the Lawrence Expressway 

and the onramp to U.S. 101, as well as the surrounding area, constituted a 

dangerous condition of public property under Government Code section 835.2

At trial, Caltrans’s principal defense was the design immunity provided by 

section 830.6. This statutory defense reflects a legislative intent to insulate 

discretionary planning and design decisions by responsible public officials

from review in tort litigation. (Baldwin v. State of California (1972) 6 Cal.3d 

424, 434.) At trial, Plaintiff’s principal reply to this defense was that, 

regardless of dangerous condition(s) associated with the design of the 

interchange and surrounding area, the evidence supported a finding of nondesign-related dangerous conditions created by Caltrans under section 835, 

1 Prior to Carpio’s death, the action was being prosecuted by Cruz Vidal 

Arevalo Rodas, as Carpio’s guardian ad litem. Following Carpio’s death, the 

probate court appointed Carpio’s parents as special administrators with 

specified powers. Based on this appointment and a formal motion, the 

appellate court substituted Cruz Vidal Arevalo Rodas & Gladys H. Ascencio 

Carpio, as personal representatives of the Estate of Kevin Josue Rodas 

Carpio, in place of plaintiff/respondent/cross-appellant Kevin Josue Rodas 

Carpio. We shall use “Plaintiff” to mean either Carpio prior to his death or 

the personal representatives of his estate, depending on the context.

2 Subsequent unidentified statutory references are to the Government 

Code.
4

subdivision (a)—i.e., a dangerous condition not subject to section 830.6’s 

design immunity. More specifically, Plaintiff contended that the following 

negligent acts by Caltrans, unrelated to design, resulted in dangerous 

conditions which caused substantial harm to Plaintiff: the failure to 

maintain the pedestrian crosswalk and surrounding area; and the failure to 

warn of a concealed dangerous condition at the crosswalk. 

As we explain in our de novo review of Caltrans’s appeal from the 

judgment (D078583), the jury’s answers to the special verdict form are 

inconsistent as to Caltrans. We cannot tell whether the award of damages 

was based on a dangerous condition that was negligently designed (and, thus, 

subject to § 830.6 immunity) or based on a failure to maintain the area 

surrounding the roadway interchange (and, thus, not subject to § 830.6 

design immunity) or based on a dangerous condition that resulted from a

failure to warn of the dangerous condition. The trial court interpreted the 

jury’s special verdict to allow both for immunity to Caltrans for dangerous 

conditions associated with the design of the crosswalk and the surrounding 

area and for liability and damages against Caltrans based on dangerous 

conditions the court considered not associated with the design of the 

crosswalk (viz., failure to warn or failure to maintain). In doing so, the court 

erred, because from the jury’s answers to the questions on the special verdict, 

there is no way of knowing: (1) which, of multiple, conditions the jury found 

to be dangerous for purposes of section 835; and, therefore, (2) whether such 

dangerous condition(s) allowed for the application of the design immunity

defense by Caltrans (§ 830.6) or for liability against Caltrans (§ 835).

As we also explain, the court lacks jurisdiction over Plaintiff’s crossappeal from the judgment (D078583), because Plaintiff is not aggrieved by 

the judgment, and there is no postjudgment order from which he could have 
5

filed a protective cross-appeal. Nonetheless, we have deemed the arguments 

in Plaintiff’s cross-appellant’s opening brief as part of his respondent’s brief 

in Caltrans’s appeal from the judgment and have deemed the arguments in 

Caltrans’s cross-respondent’s brief as part of its reply brief in its appeal from 

the judgment. 

Finally, Plaintiff appealed from a postjudgment order in which the trial 

court denied Plaintiff’s motion to enforce the terms of Caltrans’s elected 

periodic payment schedule (D078581). As we explain, because the judgment 

against Caltrans from which the periodic payments are to be made will be 

reversed, the order regarding enforcement of periodic payments under the 

judgment is moot. 

Accordingly, in the parties’ appeals from the judgment (D078583), we 

will dismiss the cross-appeal; reverse the judgment and remand for a new 

trial as to Caltrans; and otherwise affirm the judgment. In Plaintiff’s appeal 

from the postjudgment order (D078581), we will vacate the order and dismiss 

the appeal.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Accident

At the intersection of the Lawrence Expressway and U.S. 101 in 

Sunnyvale, there is an onramp to southbound U.S. 101 from the northbound 

Lawrence Expressway.3 Both highways have four lanes going in each 

3 At the interchange of the Lawrence Expressway and U.S. 101, the 

Lawrence Expressway runs north-south. U.S. 101 generally runs northsouth, but at this intersection, it runs northwest-southeast, such that the 

onramp at issue allows a driver to travel from the northbound Lawrence 

Expressway to southbound U.S. 101. The construction of the Lawrence 

Expressway – U.S. 101 interchange (Project) was completed in approximately 

2000. 
6

direction, and the onramp has three lanes, each of which can be accessed 

from a fifth “exit only” lane on the far righthand side of the northbound 

Lawrence Expressway. More than 20 feet into the onramp to U.S. 101 off the 

Lawrence Expressway is a marked pedestrian crosswalk which connects the 

sidewalk along the east side of the expressway on both sides of the onramp.4

The accident occurred in the crosswalk shortly before 7:00 a.m. on a 

dark wet morning in January 2014. Plaintiff, then 17 years old, was walking 

to school on the sidewalk adjacent to the northbound Lawrence Expressway. 

As he crossed the onramp to U.S. 101 in the marked crosswalk, he was struck 

by a car and seriously injured. 

The driver of the car that hit Plaintiff was a 24-year-old man who had 

just finished his work as a security guard—a shift that began at 10:00 p.m. 

the evening before the accident and ended at 6:45 a.m. the morning of the 

accident. Minutes after leaving work, as the driver proceeded north on the 

Lawrence Expressway near the U.S. 101 interchange, due to darkness, rain, 

and fog, the driver had turned on both the headlights and windshield wipers 

of his car.

The driver had driven this route previously and was familiar with it. 

On that stretch of the Lawrence Expressway, the speed limit was 50 miles 

per hour, and he was travelling at a rate of approximately 45 miles per hour. 

As he approached the onramp to southbound U.S. 101, the driver signaled, 

moved over to the far right exit lane, and decreased the vehicle’s speed to 

4 Consistent with Plaintiff’s complaint in this action, we understand the 

public property at issue in this case to be “the sidewalk adjacent to [the] 

intersection of [the] northbound Lawrence Expressway and the freeway 

onramp to southbound Interstate Route [sic] 101 . . . and [the] surrounding 

area.” 
7

approximately 35 miles per hour. From his familiarity with the route and the 

signage, the driver was aware of pedestrians on the sidewalk and the 

crosswalk on the onramp, although he previously had never seen a pedestrian 

in the crosswalk or in the general vicinity of the crosswalk. 

As the driver prepared to enter the onramp to U.S. 101, he was paying 

“full attention” to driving as safely as he could and did not see anything in 

the roadway. In the “split second” before the impact of striking Carpio—who 

was walking in the crosswalk—the driver realized that something was in 

front of him. Only after Carpio hit the driver’s windshield and the driver 

pulled over and got out of his car to see what had happened did the driver 

realize that his car had struck Carpio. Carpio suffered catastrophic injuries, 

leaving him in what an expert at trial described as “a persistent or 

permanent vegetative state” following “a very severe . . . traumatic brain 

injury.”

B. The Pleadings

Plaintiff filed the underlying action against Caltrans, the City of 

Sunnyvale, the County of Santa Clara, the driver, and the owner of the 

vehicle that struck him. In the first cause of action, Plaintiff alleged 

negligence against the driver and the owner of the vehicle. In the second 

cause of action, Plaintiff alleged a dangerous condition of public property 

against Caltrans, the city, and the county. 

All that is before us in this appeal is Plaintiff’s cause of action against 

Caltrans. The allegations against Caltrans include:

• Caltrans “owned, operated, designed, constructed, maintained, 

inspected, repaired, cleaned, and controlled the intersection, pedestrian 

crosswalk and surrounding area at the [property] at the time of, and 

before the [accident]”; 
8

• Caltrans “w[as] negligent and careless in the design, construction, 

maintenance, inspection, repair, and control of the [property]”; 

• Caltrans’s acts or omissions resulted in the following dangerous 

conditions, “separately and in combination”: 

o “Failure to warn of, prevent, and/or correct the dangerous 

condition”; 

o “Dangerous placement of the pedestrian crosswalk”;

o “Dangerous and confusing placement of signs before the 

pedestrian crosswalk”; 

o “Dangerous and confusing placement of roadway markings”; 

o “Creating a confusing roadway in terms of signage, roadway 

markings, and traffic lights near the pedestrian crosswalk”; 

o “Failure to place proper warnings, signs, traffic control devices, 

and/or other indications of the pedestrian crosswalk”; 

o “Failure to provide and/or maintain adequate signs or warnings”; 

o “Failure to provide stop signs or traffic lights at the intersection 

of northbound Lawrence Expressway and the onramp to 

southbound Interstate 101 [sic]”; 

o “Dangerous placement of the pedestrian crosswalk beyond the 

crest of an incline”; 

o “Dangerous placement of trees and bushes”; 

o “Failure to properly maintain the surrounding bushes and trees”; 

o “Failure to warn or redirect pedestrians away from crossing the 

onramp”; 

o “Failure to maintain the paint on the pedestrian crosswalk”; and 

o “Failure to [ensure] . . . visib[ility] through adequate lighting”; 
9

• These dangerous conditions “created a trap for members of the public 

using the roadway in a reasonably foreseeable way,” and Caltrans 

“failed to adequately warn users, including pedestrians and drivers, of 

the trap”; and

• Caltrans “should have prevented the dangerous condition” either “by 

having in place a reasonable inspection system that would have 

revealed the dangerous condition” or, if Caltrans had such a system, it 

“did not use reasonable care in maintaining and operating the system.” 

Caltrans answered the complaint by filing a general denial (Code Civ. 

Proc., § 431.30, subd. (d)) and asserting 23 affirmative defenses. As relevant 

to the issues on appeal, among these defenses, Caltrans alleged design 

immunity under section 830.6 and limited signage immunity under 

section 830.8.5

C. The Trial

Before we discuss the evidence at trial, we first provide some 

background as to the legal issues at trial. In describing the evidence, we 

limit it to the evidence relied on by the parties in their appellate briefing.

5 Caltrans’s sixth affirmative defense provides in full: “The alleged 

condition of property was created by construction in accordance with a plan 

or design of construction or of improvement to public property, and said plan 

or design was approved in advance of construction or improvement by an 

officer or employee of a public entity vested with discretionary authority to 

approve said plan or design or was prepared in conformity with standards 

previously so approved, and said approvals were reasonable; therefore 

[Caltrans] is not liable to Plaintiff pursuant to Government Code § 830.6.” 

Caltrans’s eighth affirmative defense provides in full: “The condition of 

property was allegedly the result of a failure to provide regulatory and/or 

warning signals, signs, markings, or other devices, and therefore [Caltrans] is 

not liable to Plaintiff pursuant to Government Code §§ 830.4 and 830.8.” 
10

1. Issues

As we introduced ante, Plaintiff alleged liability for a dangerous 

condition of public property under section 835, and Caltrans’s principal 

defense was design immunity under section 830.6. 

a. Dangerous Condition of Public Property (§ 835)

Pursuant to the Government Claims Act (§ 810 et seq.), public entities 

are liable only to the extent provided by statute. (§ 815, subd. (a); Quigley v.

Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803.)

As applicable here, section 835 provides the basis for liability in an 

action against a public entity for an injury caused by the dangerous condition 

of public property.6 To establish liability under section 835, a claimant must 

prove the following elements: (1) The public property was “in a dangerous 

condition at the time of the injury”; (2) the injury was “proximately caused by 

the dangerous condition”; (3) the kind of injury that occurred was “reasonably 

foreseeable” as a consequence of the dangerous condition; and (4) either (a) a 

public employee, within the scope of employment, created the dangerous 

condition by a “negligent or wrongful act or omission” or (b) the public entity 

had “actual or constructive notice of the dangerous condition” a sufficient 

time before the injury to have taken reasonable measures to protect against 

the dangerous condition.

6 The Government Claims Act defines “dangerous condition” as “a 

condition of property that creates a substantial (as distinguished from a 

minor, trivial or insignificant) risk of injury when such property or adjacent 

property is used with due care in a manner in which it is reasonably 

foreseeable that it will be used.” (§ 830, subd. (a).) 
11

b. Design Immunity (§ 830.6)

In addition to all affirmative defenses available to private party 

defendants in similar situations (§ 815, subd. (b)), a public entity has 

available to it certain statutory defenses and statutory immunities (see 2 

Van Alstyne et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th 

ed. 2021) §§ 12.61-12.101, pp. 12-88 – 12-144). The statutory design 

immunity provided by section 830.6 is principally at issue here. 

To establish design immunity—by which a public entity is generally not 

liable for injuries caused by a dangerous condition of public property—the 

defendant must prove the following three elements: (1) “a causal relationship 

between the plan or design and the accident”; (2) “discretionary approval of 

the plan or design prior to construction”; and (3) “substantial evidence 

supporting the reasonableness of the plan or design.” (Cornette v. Dept. of 

Transportation (2001) 26 Cal.4th 63, 66 (Cornette); see § 830.6.) The third 

element—i.e., reasonableness of the approval process of the plan or design—

is an issue decided by the court, not the trier of fact. (Cornette, at p. 66; 

Menges v. Dept. of Transportation (2020) 59 Cal.App.5th 13, 21.)

Section 830.6’s immunity is not permanent. It may be lost if the party 

opposing the application of the defense can establish that “changed physical 

conditions” of the plan or design produced the dangerous condition at issue. 

(Alvarez v. State of California (1999) 79 Cal.App.4th 720, 737 (Alvarez), 

abrogated on another point in Cornette, supra, 26 Cal.4th at pp. 67, 74 & 

fn. 3.) The party opposing the application of the defense has the burden of 

establishing the loss of the immunity. (Cornette, at p. 72.)

2. Plaintiff’s Case

Plaintiff summarizes the evidence at trial for which he contends there 

were four specific dangerous conditions.
12

First, Plaintiff describes certain evidence at trial which he contends 

supports a finding that “[t]he unkempt and overgrown shrubbery and bushes” 

were a dangerous condition. (Bolding omitted.) Next to the roadway where 

the driver struck Plaintiff (i.e., to the right of the sidewalk along the east side 

of the Lawrence Expressway and the onramp to U.S. 101), there are trees, 

bushes, and groundcover. In places, this vegetation partially covered or cast 

shadows on street signs (including signs warning drivers of pedestrians and 

the crosswalk across the onramp to U.S. 101) and blocked a clear view of the 

onramp from the right-turn lane. According to the Caltrans supervisor 

responsible for landscaping maintenance at and around the Project, there 

was no schedule for maintenance; work was often prompted by a complaint 

from a member of the public. 

Second, Plaintiff describes evidence at trial which he contends supports 

a finding that “[t]he faded crosswalk lines” were a dangerous condition. The 

jury was shown photographs of the crosswalk taken approximately three 

weeks after the accident. Caltrans’s maintenance area superintendent, 

charged with the responsibility of overseeing the four supervisors who 

manage all nine Bay Area counties (each of whom supervises six or seven 

employees) testified as to the condition of the crosswalk at issue.7 He stated

that, prior to the January 2014 accident, the crosswalk lines had not been 

repainted during the 14 years since they were installed. He testified as to the 

importance of drivers being able to see road markings like the crosswalk. In 

particular, he explained that the painted lines provide “retro reflectivity,” 

which is what occurs when a driver’s headlights “touch the pavement 

7 Caltrans had previously designated the superintendent as the person 

most knowledgeable on the issue of roadway maintenance. 
13

markings, the striping[,] and the pavement markers[;] and they reflect the 

light back toward the occupants in the vehicle.”8 In fact, “a primary part” of 

the job of a Caltrans maintenance crew is to refresh roadway markings like 

the crosswalk at issue here. Caltrans maintenance crews conduct yearly

nighttime inspections of such roadway markings. 

Plaintiff then tells us about the testimony from the supervisor of the 

six-person maintenance crew from this area. The supervisor acknowledged 

that he never told his crew members that they should report any road 

markings or other conditions that they believed to present a danger to 

pedestrians or drivers. According the supervisor, reporting dangers is not 

part of a crew member’s job; a crew member’s job is to do the actual 

maintenance, as directed by a supervisor. 

Testimony from this supervisor’s crew members established that they 

did not receive any training from Caltrans on how to conduct inspections—

i.e., how to measure sight distances or retro reflectivity. Crew members were 

told to use their own best judgment when conducting inspections. One crew 

member testified that he had never used “this concept of retro reflectivity” 

when, during the night inspections, he determined whether roadway 

markings needed to be refreshed. 

Plaintiff also discusses expert opinion testimony regarding the need for 

Caltrans to have a formal training program for its maintenance employees—

including, specifically, training on the standards to be used when evaluating 

roadway markings. 

8 “Retro reflectivity” is a term that appears in the Caltrans maintenance 

manual. 
14

Third, Plaintiff describes evidence at trial which he contends supports 

a finding that “[t]he painting of the crosswalk lines in relation to the crest in 

the roadway” was a dangerous condition. (Bolding omitted.) As background,

the California Highway Patrol officer who investigated the scene of the 

accident testified that “a small crest” on the onramp “hid the lines on the 

crosswalk” where the accident occurred. Plaintiff then refers us to expert 

opinion testimony from his civil engineer that the placement of the crosswalk 

in relation to the crest of the road was not a design feature of the Project.

Plaintiff next tells us about the deposition of the Caltrans Project engineer, 

who testified that, based on his memory from 20 years earlier, he did not 

recall who decided to put a crosswalk on the onramp and what process, if any, 

was involved in deciding whether to place a signal device on the onramp by 

the crosswalk. Finally, Plaintiff relies on the Caltrans’s roadway engineering

expert, who agreed with the statement from the California Highway Patrol 

officer that the location of the crosswalk lines was behind the crest of the 

onramp. 

Fourth, Plaintiff describes evidence at trial which he contends supports 

a finding that the lack of “adequate roadway markings and signage” was a 

dangerous condition. Plaintiff’s expert on “human factors engineering or 

ergonomics or engineering psychology” first opined that, because the driver 

here “had been through the location so many times and not encountered a 

pedestrian,” the driver had lost any expectancy that he would encounter a 

pedestrian. The expert explained that traffic signs and roadway markings 

increase a driver’s expectancy and that the following conditions contributed 

to the driver’s lack of expectancy in this case: The warning sign closest to the 

crosswalk was “obscured by shrubs and plants”; the lines on the crosswalk 

were “badly faded”; and the area lacked signage warning of the distance to 
15

the crosswalk.9 The expert also provided his opinions as to what changes 

could be made to increase a driver’s expectancy of a crosswalk on the onramp 

to U.S. 101. 

Consistent with this evidence of four specific conditions, the bulk of 

Plaintiff’s counsel’s closing argument focused on what Plaintiff contended 

were dangerous conditions that resulted from Caltrans’s failure to maintain 

the property and Caltrans’s failure to warn of the dangerous condition. 

Counsel also argued to the jury that, because the plans and designs for the 

Project did not include faded crosswalks or overgrown shrubbery, dangerous 

conditions resulting from failures to maintain or to warn are not subject to 

the defense of design immunity. More specifically, when discussing with the 

jury question No. 6 of the special verdict (“Was the dangerous condition . . . in 

the plan or design for the roadway?”), counsel explained: “I think that’s an 

easy ‘No,’ because a failure to maintain is not in the plan or design.” 

However, the foregoing four conditions that Plaintiff tells us are 

dangerous do not include all of the conditions that Plaintiff contended at trial 

were the dangerous conditions for purposes of Caltrans’s liability. For 

example, and without limitation, on direct examination, Plaintiff’s human 

factors expert opined that the location of the crosswalk on the onramp to U.S. 

101—i.e. “mid-block”—was a dangerous condition by itself. Likewise, in 

closing argument, when discussing with the jury question No. 1 of the special 

verdict (“Was the onramp from northbound Lawrence Expressway to 

southbound U[.]S[.] 101 in a dangerous condition at the time of the 

9 The expert further testified that the two pedestrian crossing signs 

along the Lawrence Expressway just before the onramp to U.S. 101 were 

“obsolete,” although he did not tie that fact into his opinions regarding the 

driver’s expectancy. 
16

accident?”), Plaintiff’s counsel specifically explained to the jury: “This 

onramp includes the onramp, crosswalk, the shrubbery, the lack of signs

. . . [, and the] lack of shark teeth.” 

3. Caltrans’s Case

On appeal, Caltrans summarizes the trial evidence it relies on for the 

defense of design immunity under section 830.6. Caltrans first refers us to 

evidence of a specific dangerous condition (namely, that the location of the 

crosswalk was included in the plan or design) and then explains the 

discretionary approval process that preceded the construction of the Project

that included this condition.

In trial proceedings prior to empaneling the jury, the court received 

evidence and ruled that, for purposes of Caltrans’s design immunity defense 

(§ 830.6), Caltrans established the reasonableness of the design approval 

process for the Project. (See Cornette, supra, 26 Cal.4th at p. 66 [court 

determines as a matter of law whether substantial evidence supports 

reasonableness of plan or design].) The court properly left for the jury, as the 

fact-finder: (1) the remaining two elements for an application of the design 

immunity defense (see ibid.); as well as (2) the elements at issue for 

Plaintiff’s claims of sufficiently changed physical conditions to establish the 

loss of this defense (see Alvarez, supra, 79 Cal.App.4th at p. 737; Cornette, at 

p. 72).

With regard to Caltrans’s burden of proving the remaining elements of 

the design immunity defense, Caltrans directs us to the trial testimony from 

its Project engineer. In response to Plaintiff’s human factors expert who 

testified that the location of the crosswalk on the onramp to U.S. 101 was a 

dangerous condition, the Project engineer testified that the location of the 

crosswalk was determined by specific information contained in the Project 
17

plans—namely, “the geometry of the interchange, location of the lanes, the 

location of the sidewalks, [and] the placement of the wheelchair ramps.”10

After identifying his signature on the top of the plans, this witness identified 

where the plans contained “the location of the crosswalk that’s at issue in this 

case.” He also explained that the Project plans—in particular, a “profile 

sheet” Caltrans created for the contractor—directed the location of the 

vertical curve, which included the crest, on the onramp.11

Caltrans also discusses testimony from its civil engineering and traffic 

safety expert, who interpreted one specifically identified page of the Project 

plans that “account[ed] for the vertical curve”—which included “the crest.” 

Finally, Caltrans again relies on evidence from its Project engineer, 

who explained that, as the resident engineer for the Project, he was “the field 

engineer responsible for the administration of the contract and making sure 

that the project is built according to the plans, specifications, calculations and 

the standards.” He further testified that his signature on the as-built plans 

indicated that: “headquarters approved the set of plans and they were 

transferred to construction to be built”; the plans were “prepared according to 

standards and . . . prepared under [his] supervision”; and “the [Project] was 

built according to the plans and according to the . . . California standards [at]

that time.”

In closing argument, Caltrans’s counsel told the jury:

10 The Project engineer identified trial exhibit No. 507 as the 245-page 

“as-built” “project plans.” 

11 According to the Project engineer, the “crest of the [on]ramp” is the 

“inflection point” on the “vertical curve”; and a vertical curve is required 

because the Lawrence Expressway goes over U.S. 101, and the onramp to 

U.S. 101 must account for this difference in elevation. 
18

“On the . . . issue of design immunity, basically, there’s two 

elements that are involved in play here. One deals with: 

. . . w[ere] the features that Plaintiff is complaining about 

that caused this accident [—] that is[,] the foliage, the 

crosswalk in relation to the crest, and the signage — were 

those present on the plans? [¶] And I would say yes, they 

were.

“. . . [T]he next one will be[:] . . . was the dangerous 

condition that was a substantial factor in cau[sing] harm

to Plaintiff in the plan or design for the roadway? . . . [¶] 

So was the crosswalk located [sic] included in the plans? 

Yes. [¶] Exhibit 507-100.

“Was the foliage included on plans? Yes. [¶] Exhibit 507-

162.

“Was the vertical curve shown on the plans? Yes. [¶] 

Exhibit 507[-0]16. [¶] . . . [¶]

“The sign plan—that’s Exhibit 640—shows the general 

location of . . . the signs.

“The lighting plan, with the overhead lights, that’s 507-177.

“So all of those features were present in the plans.” 

4. The Special Verdict and the Judgment

The special verdict form asked 16 questions, and the jury answered 

them as follows:

“1. Was the onramp from northbound Lawrence 

Expressway to southbound U[.]S[.] 101 in a dangerous 

condition at the time of the accident?

“ X Yes _____ No

“If your answer to Question 1 is yes, then answer 

Question 2. If you answered no, enter a zero next to the 

State of California/Caltrans’ name in Question 16 and 

then move to Question 11.

“2. Did the dangerous condition create a reasonably 

foreseeable risk of the kind of injury that occurred?

“ X Yes _____ No
19

“If your answer to Question 2 is yes, then answer 

Question 3. If you answered no, enter a zero next to the 

State of California/Caltrans’ name in Question 16 and 

then move to Question 11.

“3. Did the negligent or wrongful conduct of the State of 

California/Caltrans’ employee(s) acting in the scope of 

his/her/their employment create the dangerous condition?

“ X Yes _____ No

“or

“Did the State of California/Caltrans have actual or 

constructive notice of the dangerous condition for a long 

enough time to have protected against it?

“ X Yes _____ No

“If your answer to either option in Question 3 is yes, then

answer Question 4. If you answered no to both options, 

enter a zero next to the State of California/Caltrans’

name in Question 16 and then move to Question 11.

“4. Was the act or omission that created the dangerous 

condition reasonable?

“_____ Yes _____ No

“or

“Was the State of California/Caltrans acting reasonably in 

failing to take sufficient steps to protect against the risk of 

injury?

“_____ Yes X No

“If your answer to either option in Question 4 is no, then 

answer Question 5. If you answered yes to both options, 

enter a zero next to the State of California/Caltrans’ 

name in Question 16 and then move to Question 11.

“5. Was the dangerous condition a substantial factor in 

causing harm to Kevin Carpio?

“ X Yes _____ No

“If your answer to Question 5 is yes, then answer 

Question 6. If you answered no, enter a zero next to the 
20

State of California/Caltrans’ name in Question 16 and 

then move to Question 11.

“6. Was the dangerous condition that was a substantial 

factor in causing harm to plaintiff in the plan or design for 

the roadway?

“ X Yes _____ No

“If your answer to Question 6 is yes, then answer 

Question 7. If you answered no, move to Question 11.

“7. Was the dangerous condition in the plan or design for 

the roadway approved by a person exercising discretionary 

authority to approve the plan or design?

“ X Yes _____ No

“If your answer to Question 7 is yes, then answer 

Question 8. If you answered no, move to Question 11.

“8. Did the State of California/Caltrans fail to provide 

adequate warnings of the dangerous condition?

“ X Yes _____ No

“If so, did the failure to warn contribute to causing harm to 

Kevin Carpio?

“ X Yes _____ No

“If your answer to both options in Questions 8 is yes, 

move on to Question 11. If you answered no to either 

option in Question 8, then move on to Question 9.

“9. Did the subject roadway become dangerous because of a 

change in physical conditions?

“_____ Yes _____ No

“If your answer to Question 9 is yes, then answer 

Question 10. If you answered no, enter a zero next to the 

State of California/Caltrans’ name in Question 16 and 

then move to Question 11.

“10. Did the State of California/Caltrans have actual or 

constructive notice of the dangerous condition created 

because of the change in physical conditions?

“_____ Yes _____ No
21

“If your answer to Question 10 is yes, then answer 

Question 11. If you answered no, enter a zero next to the 

State of California/Caltrans’ name in Question 16 and 

then move to Question 11.

“11. Was [the driver of the vehicle that struck Plaintiff] 

negligent?

“_____ Yes X No

“If your answer to Question 11 is yes, then answer 

Question 12. If you answered no, enter a zero next to 

[the driver’s] name in Question 16 and then move to 

Question 13.

“12. Was [the driver’s] negligence a substantial factor in 

causing harm to Kevin Carpio?

“_____ Yes _____ No

“If your answer to Question 12 is yes, answer 

Question 13. If you answered no, enter a zero next to 

[the driver’s] name in Question 16 and then move to 

Question 13.

“13. Was plaintiff Kevin Carpio negligent?

“_____ Yes X No

“If your answer to Question 13 is yes, then answer 

Question 14. If you answered no, enter a zero next to 

Kevin Carpio’s name in Question 16, and then move to 

Question 15.

“14. Was plaintiff Kevin Carpio’s negligence a substantial 

factor in causing his harm?

“_____ Yes _____ No

“If your answer to Question 14 is yes, then answer 

Question 15. If you answered no, enter a zero next to 

Kevin Carpio’s name in Question 16, and then move to 

Question 15.
22

“15. What are Kevin Carpio’s damages? Do not reduce 

the damages based on the fault, if any, of the State of 

California/Caltrans, [the driver], or Kevin Carpio.

“a. Past economic loss

“i. Past lost earnings $ 5,686

“ii. Past medical expenses $2,097,679

“Total Past Economic Damages: $2,103,365

“b. Future economic loss

“i. Future lost earnings $1,599,377

“ii. Future medical expenses $6,036,105

“iii. Other future economic loss

$ 450,000

“Total Future Economic Damages: $8,085,482

“c. Past noneconomic loss, including loss of 

enjoyment of life and pain and suffering:

$ 2,000,000

“d. Future noneconomic loss, including loss of 

enjoyment of life and pain and suffering:

$12,000,000

“Total Damages: $24,188,847

“Answer Question 16.

“16. What percentage of responsibility for Kevin Carpio’s 

harm do you assign to the following? Insert a percentage 

for only those who received ‘yes’ answers in Question 

Nos. 5, 12, and/or 14. Do not enter a percentage next to a 

party if you were already instructed to enter a zero next to 

that party’s name:

“The State of California/Caltrans 100%

“[The driver] 0%

“Kevin Carpio 0%”
23

Based on the foregoing special verdict, the court entered a judgment 

and, days later, an amended judgment. All that is at issue in this appeal is 

the amended judgment (Judgment)—in favor of Plaintiff and against 

Caltrans in the amount of $24,188,847 and in favor of the driver and against 

Caltrans.12

5. Postjudgment Proceedings

Caltrans filed a motion to vacate the Judgment pursuant to Code of 

Civil Procedure section 663. Caltrans relied on the answers to the special 

verdict (in particular, the answers to question Nos. 1, 5, 6, and 7), by which 

the jury found that the dangerous condition in the case was a substantial 

factor in causing harm to Plaintiff and was included in the plan or design of 

the Project. Caltrans argued that, based on these findings, the court was 

required to apply the statutory design immunity provided in section 830.6; 

and an application of that defense required the court to enter judgment in 

favor of Caltrans. The court denied the motion (Section 663 Order). As we 

explain at footnote 16, post, because there is no appeal from this order, it is 

not before us for appellate review.

Nonetheless, the Section 663 Order was properly designated and 

included in the record on appeal; and it explains the trial court’s reasoning. 

The court first concluded that, based on its legal ruling (as to the 

reasonableness of the approval process of the plans and design of the Project)

and the jury’s answers to the special verdict questions (in particular, Nos. 6

12 Without a record reference, Caltrans tells us that the City of Sunnyvale 

and the County of Santa Clara settled with Plaintiff. The parties tell us 

nothing about the owner of the vehicle. Neither the city, the county, nor the 

owner is mentioned in the Judgment; and there is no issue on appeal related 

to any of these parties.
24

& 713), a finding of section 830.6 design immunity was “compelled.”14

(Italics added.) Then, acknowledging that the “verdict form is not a 

masterpiece of clarity,” the court gave as an example that “there was no good 

reason [for the verdict form] to direct the jurors to skip over questions 9 and 

10, the answers to which very well might have found loss of design 

immunity”—a finding that would have been “justif[ied]” based on the 

evidence presented.15 (Italics added.) From there, the court ruled that, 

because the special verdict did not “direct the jurors to find a design related 

defect or not,” the verdict form allowed the jury to find liability “on several 

separate and independent bases.” The court then concluded that the jury 

must have intended a finding of loss of design immunity, since it “found 

virtually every potential form of liability against [Caltrans] and then 

confirmed that liability with a substantial damages award.” 

As part of the Section 663 Order, the court also granted Caltrans’s 

motion to authorize periodic payments of the Judgment under section 984. 

Eight months later, based on the order authorizing periodic payments, 

13 By its answers to question Nos. 6 and 7, the jury necessarily found that 

the dangerous condition that was a substantial factor in causing harm to 

Plaintiff was “in the plan or design for the roadway.” 

14 According to the court: “Indeed, even [P]laintiff does not dispute the 

finding of design immunity.” 

15 The jury followed the instructions on the special verdict, which 

required the jury to skip question Nos. 9 and 10. Had the jury answered 

those questions in the affirmative, arguably the findings would have 

supported Plaintiff’s claim that, as a result of a change in the physical 

conditions that were approved in the plan or design, Caltrans’s section 830.6 

design immunity defense would have been lost. (See Alvarez, supra, 79 

Cal.App.4th at p. 737.)
25

Plaintiff filed a motion under section 984 to enforce the terms of the payment 

schedule and to compel Caltrans to pay 50 percent of the Judgment. The 

trial court denied Plaintiff’s motion (Postjudgment Order).

D. The Appeals

Caltrans timely appealed from the Judgment.16 That commenced 

what is now case No. D078583. Plaintiff timely cross-appealed, and the

cross-appeal is also part of what is now case No. D078583.

Plaintiff timely appealed from the Postjudgment Order. That 

commenced what is now case No. D078581. 

In July 2021, we consolidated case Nos. D078583 and D078581. 

III. DISCUSSION

As we will explain, this court lacks jurisdiction to consider Plaintiff’s 

cross-appeal from the Judgment; and, thus, we will dismiss it. We will next 

explain that, because the special verdict is ambiguous as to Caltrans, we will 

reverse the Judgment in part and remand for a new trial as to Caltrans; and 

we will otherwise affirm the Judgment. Finally, we will explain that, since 

16 In its opening brief in D078583, Caltrans tells us that it also appealed 

from the Section 663 Order. However, (1) Caltrans provides no record 

reference for its statement; (2) the clerk’s transcript contains no such notice 

of appeal; and (3) because Caltrans’s notice of appeal is expressly limited to 

the judgment and the amended judgment, this appeal is necessarily so 

limited (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 

Cal.App.3d 35, 46 [Cal. Rules of Court, rule 8.100(a)(2)’s rule of liberal 

construction is inapplicable where, as here, “the notice of appeal 

unambiguously designates” a specific document]). Thus, this court lacks 

jurisdiction to review the Section 663 Order. (K.J. v. Los Angeles Unified 

School Dist. (2020) 8 Cal.5th 875, 881 [timely notice of appeal “ ‘is an absolute 

prerequisite to the exercise of appellate jurisdiction’ ”].)
26

the Judgment is being reversed, the Postjudgment Order is moot; and, 

accordingly, we will vacate the Postjudgment Order and dismiss the appeal.

A. Plaintiff’s Cross-Appeal from the Judgment (D078583)

The rule of appellate standing is codified in Code of Civil Procedure 

section 902, which provides in part: “Any party aggrieved may appeal . . . .” 

(Italics added.) “One is considered ‘aggrieved’ whose rights or interests are 

injuriously affected by the judgment.” (County of Alameda v. Carleson (1971) 

5 Cal.3d 730, 737 (County of Alameda).) The “interest ‘ “must be immediate, 

pecuniary, and substantial and not nominal or a remote consequence of the 

judgment.” ’ ” (Ibid.)

“A party is not aggrieved by a judgment or order rendered in its favor”

(Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 211); and here 

there is a $24 million judgment in Plaintiff’s favor. Thus, for purposes of 

Code of Civil Procedure section 902, because Plaintiff is not aggrieved by the 

Judgment, Plaintiff lacks standing to appeal from the Judgment.

In the notice of appeal, Plaintiff states: “The portion of this Judgment 

being appealed is the finding of the elements of design immunity, including, 

without limitation, the portion of the judgment, if any, based on the jury’s 

findings in questions 6 and 7 of the Special Verdict.” Although the Judgment 

includes a copy of the special verdict, the Judgment itself does not contain 

any such “findings”; it directs a judgment in favor of the driver (and against 

Plaintiff) and a judgment in favor of Plaintiff (and against Caltrans) in an 

amount in excess of $24 million.

In the introduction to the opening brief in his cross-appeal, Plaintiff 

describes his presentation as a protective cross-appeal—namely, if the 

appellate court is inclined to reverse the Judgment based on Caltrans’s 

presentation regarding question Nos. 6 and 7 of the special verdict (which 
27

deal with § 830.6 design immunity), then the court should consider whether 

the record contains substantial evidence to “support the jury’s finding of any 

dangerous condition that was approved in a plan or design.” However, “[a]

protective cross-appeal protects a party’s right to appeal from the original 

judgment when the judgment is attacked by a posttrial motion.” (1 Cal. Civil 

Appellate Practice (Cont.Ed.Bar 3d ed. 2021), § 8.7, p. 8-5, italics added.) 

Here, Caltrans’s appeal does not include a challenge to a ruling from a 

posttrial motion. (See fn. 16, ante.) Instead, where (as here) the respondent 

wants to raise an argument in support of the judgment on appeal, a “crossappeal is neither necessary nor appropriate. The court of appeal will affirm if 

the trial court judgment is correct on any theory.[17] When the trial court’s 

result is correct but its reasoning wrong, new arguments should be raised in 

respondent’s brief and not by cross-appeal.” (1 Cal. Civil Appellate Practice 

(Cont.Ed.Bar 3d ed. 2021), § 8.4, p. 8-4, italics added.) 

Since Code of Civil Procedure section 902’s standing requirement is 

jurisdictional and since Plaintiff lacks standing to appeal from the Judgment, 

we lack jurisdiction to consider Plaintiff’s cross-appeal and must dismiss it. 

(See County of Alameda, supra, 5 Cal.3d at p. 737.)

That said, as we just explained, the respondent may raise any 

argument on appeal that establishes the judgment is correct on any theory. 

Stated differently, pursuant to Code of Civil Procedure section 906, a 

17 “No rule of decision is better or more firmly established by authority, 

nor one resting upon a sounder basis of reason and propriety, than that a 

ruling or decision, itself correct in law, will not be disturbed on appeal merely 

because given for a wrong reason. If right upon any theory of the law 

applicable to the case, it must be sustained regardless of the considerations 

which may have moved the trial court to its conclusion.” (Davey v. Southern 

Pacific Co. (1897) 116 Cal. 325, 329.)
28

respondent may “assert[ ] an alternate legal theory upon which the judgment 

may be affirmed, notwithstanding the court’s resolution of the appellant’s 

contentions in the appellant’s favor.” (Preserve Poway v. City of Poway (2016) 

245 Cal.App.4th 560, 586.) 

Here, in the cross-appeal, Plaintiff raises a substantial evidence 

argument, and Caltrans fully responds to it. Thus, Caltrans will not be 

prejudiced by our consideration of Plaintiff’s substantial evidence argument. 

For this reason, we will consider the substantive argument raised by Plaintiff 

in his cross-appellant’s opening brief as part of his respondent’s brief in 

Caltrans’s appeal from the Judgment. Correspondingly, we will consider the 

substantive argument raised by Caltrans in its cross-respondent’s brief as 

part of its appellant’s reply brief in its appeal from the Judgment.18

B. Caltrans’s Appeal from the Judgment (D078583)

In its appeal from the Judgment, Caltrans does not contend that 

Plaintiff failed to prove liability against Caltrans (a public entity) caused by a 

dangerous condition of its property for purposes of section 835. Stated 

differently, Caltrans does not challenge that the jury’s answers to special 

verdict question Nos. 1, 5, 2, and 3, respectively, established the following 

necessary elements for liability under section 835: The onramp “was in a 

dangerous condition at the time of the injury”; the injury was “proximately 

caused by the dangerous condition”; the kind of injury that occurred was 

“reasonably foreseeable” as a consequence of the dangerous condition; and a 

18 We will not consider the arguments raised by Plaintiff in his crossappellant’s reply brief, since that would be unfair to Caltrans. As the 

appellant, Caltrans has the burden of establishing reversible error on appeal 

(Jameson v. Desta (2018) 5 Cal.5th 594, 609) and, therefore, the right to have 

the final word in seeking a reversal of the Judgment.
29

public employee, within the scope of employment, created the dangerous

condition by a “negligent or wrongful act or omission,” and the public entity 

had “actual or constructive notice of the dangerous condition” a sufficient 

time before the injury to have taken reasonable measures to protect against 

the dangerous condition.19

In its appeal, Caltrans challenges the trial court’s failure to apply the 

statutory design immunity provided by section 830.6. According to Caltrans, 

the jury’s answers to special verdict question Nos. 6 and 7, respectively, 

established the following elements necessary for the application of 

section 830.6 design immunity to the dangerous condition found by the jury 

in question No. 1: “a causal relationship between the plan or design and the 

accident”; and “discretionary approval of the plan or design prior to 

construction.”20 (Cornette, supra, 26 Cal.4th at p. 66.) Caltrans further 

contends that the jury made no additional findings that design immunity had 

been lost. 

As a result, Caltrans argues, the trial court erred in entering the 

Judgment in favor of Plaintiff. This error, Caltrans continues, requires a 

19 In this latter regard, section 835 requires a finding either that an 

employee of the public entity created the dangerous condition by a negligent 

or wrongful act or omission or that the public entity had actual or 

constructive notice of the dangerous condition in sufficient time to have taken 

protective measures. Here, in response to special verdict question No. 3, the 

jury found both. 

20 As introduced ante, the third element necessary to establish design 

immunity is the reasonableness of the adoption of the plan or design. 

(Cornette, supra, 26 Cal.4th at p. 66.) Here, the court found that Caltrans 

met its burden as to this element of the defense, and there is no issue on 

appeal related to this ruling of the court.
30

reversal of the Judgment and a remand with directions to enter a judgment 

in favor of Caltrans. Alternatively, Caltrans contends that, because the 

special verdict made findings requiring application of design immunity yet 

awarded damages, the verdict is inconsistent, which requires a reversal of the 

Judgment and a remand for a new trial. 

1. Law

A special verdict is one “by which the jury find[s] the facts only, leaving 

the judgment to the Court.” (Code Civ. Proc., § 624.) The purpose of a special 

verdict is for the jury to determine the ultimate facts of each claim or defense 

in the case, so that “nothing shall remain to the Court but to draw from them 

conclusions of law.” (Ibid.) To the extent there is an ambiguity in the special 

verdict after the jury is discharged, the court must “ ‘interpret the verdict 

from its language considered in connection with the pleadings, evidence and 

instructions.’ ” (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 

Cal.2d 452, 456 (Woodcock); accord, Fuller v. Dept. of Transportation (2019) 

38 Cal.App.5th 1034, 1038 (Fuller) [consider pleadings, evidence, 

instructions, and arguments].) “The correctness of a special verdict is 

analyzed as a matter of law and is subject to de novo review.” (Pinto v. 

Farmers Ins. Exchange (2021) 61 Cal.App.5th 676, 689.)

Relying on Fuller, supra, 38 Cal.App.5th 1034, Plaintiff argues that we 

should review the special verdict as if it were a general verdict and, under the 

standard of review of a general verdict, draw “all inferences . . . to support the 

jury’s findings against Caltrans.” We disagree. 

In Fuller, the plaintiff tried the case on the theory that, for purposes of 

public entity liability under section 835, there were two dangerous conditions 

which were substantial factors in causing harm to him. (Fuller, supra, 38 

Cal.App.5th at p. 1039.) As in the present case, the special verdict form did 
31

not ask the jury to determine which of the two conditions was dangerous. 

(Ibid.) In answering the special verdict questions, the jury found (1) there 

was a dangerous condition, but (2) the dangerous condition did not create a 

reasonably foreseeable risk of the kind of injury that occurred.21 (Id. at 

p. 1038.) The trial court entered judgment in favor of the defendant, and the 

plaintiff appealed. (Id. at p. 1036.) On appeal, the plaintiff argued that the 

special verdict findings were fatally inconsistent because the jury did not 

identify which of the dangerous conditions did not create a reasonably 

foreseeable risk. (Id. at p. 1038.)

In reviewing the special verdict de novo (Fuller, supra, 38 Cal.App.5th 

at p. 1038), the appellate court explained that, “[b]ecause the special verdict 

form did not ask the jury to decide the issue with specificity, the jury finding 

on dangerous condition is tantamount to a general verdict and all reasonable 

inferences are drawn to support it” (id. at p. 1039). Applying this standard, 

the appellate court affirmed the judgment for the defendant public entity on 

the basis that substantial evidence supported the jury’s finding that the 

dangerous condition did not create a reasonably foreseeable risk of the injury 

the plaintiff suffered. (Ibid.) Any other ruling, according to Fuller, would 

have resulted in the conclusion that “once the jury found a dangerous 

condition, there was no reason to proceed with [the] other questions [as] they 

are superfluous.” (Id. at p. 1040.) Likewise, here, Plaintiff’s position results 

in the conclusion that, once the elements of a section 835 claim are 

21 By contrast, in the present case, the jury found both that (1) there was 

“a dangerous condition,” and (2) “the dangerous condition” created a 

reasonably foreseeable risk of the kind of injury that occurred. 
32

established, there is no reason to proceed with defenses, including 

section 830.6 immunity. 

Because the problem with the special verdict in Fuller is different than 

the problem with the special verdict in the present appeal, Fuller is 

inapplicable as to the standard of review. In Fuller, the issue was whether 

the jury considered different dangerous conditions for different elements of 

the plaintiff’s section 835 liability claim. (Fuller, supra, 38 Cal.App.5th at 

p. 1040.) By contrast, in the present appeal, the issue is whether the jury 

considered different dangerous conditions for purposes of Plaintiff’s 

section 835 liability claim (for which Plaintiff had the burden of proof) and 

Caltrans’s section 830.6 defense (for which Caltrans had the burden of proof). 

“A special verdict is inconsistent if there is no possibility of reconciling 

its findings with each other.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 

186 Cal.App.4th 338, 357.) “ ‘A court reviewing a special verdict does not 

infer findings in favor of the prevailing party’ ”; that is because “ ‘there is no 

presumption in favor of upholding a special verdict when the inconsistency is 

between two questions in a special verdict.’ ” (Trejo v. Johnson & 

Johnson (2017) 13 Cal.App.5th 110, 124 (Trejo).) “ ‘ “ ‘Where the findings are 

contradictory on material issues, and the correct determination of such issues 

is necessary to sustain the judgment, the inconsistency is reversible 

error.’ ” ’ ” (Singh, at p. 358.) Because “ ‘[t]he appellate court is not 

permitted to choose between inconsistent answers,’ ” “[t]he proper remedy for 

an inconsistent special verdict is a new trial.” (Ibid.)

2. Analysis

Caltrans’s principal argument is that Caltrans is entitled to judgment 

as a matter of law, because the jury found each element necessary for the 

court to apply statutory immunity under section 830.6. More specifically, 
33

Caltrans relies on the jury’s findings that “the onramp from northbound 

Lawrence Expressway to southbound U[.]S[.] 101 [was] in a dangerous 

condition at the time of the accident” (special verdict question No. 1), and 

“the dangerous condition that was a substantial factor in causing harm to 

plaintiff [was] in the plan or design for the roadway” (special verdict question 

No. 6).

For all purposes, by its answer to special verdict question No. 1, the 

jury found that “the onramp from northbound Lawrence Expressway to 

southbound U[.]S[.] 101 [was] in a dangerous condition at the time of the 

accident.” (Italics added.) With that initial understanding, we reach two 

conclusions: 

1. By its answers to special verdict question Nos. 1, 2, 3, 4, 5, and 8, the 

jury found each element necessary for an application of section 835 

liability to a public entity for “the dangerous condition” (italics added); 

and

2. By its answers to special verdict question Nos. 6 and 7, in addition to 

the court’s ruling as to the reasonableness of the approval process of 

the plan, the jury found each element necessary for an application of 

section 830.6 design immunity for “the dangerous condition” (italics 

added).

The issue, therefore, is: After finding “the onramp” to be “in a dangerous 

condition,” what did the jury intend to be “the dangerous condition” when it 

found both liability and immunity for “the dangerous condition”? (Italics 

added.) With the form of the special verdict and a record containing multiple 

potentially dangerous conditions, there is no way of knowing whether the

dangerous condition for which the jury awarded damages was the same 

dangerous condition for which the jury found immunity. Very simply, 
34

contrary to Caltrans’s mantra, we cannot conclude that the jury considered

only one—i.e., the same—dangerous condition (of the many presented by 

Plaintiff) in answering all of the questions on the special verdict.

Therefore, as we explain, the special verdict is “hopelessly ambiguous,” 

which “require[s]” a reversal. (Woodcock, supra, 69 Cal.2d 452, 457, italics 

added; Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 

1092.) In short, by failing to ask the jury to identify the dangerous condition 

on which it based its findings, neither party appreciated the potential for the

inconsistency in the verdicts that resulted by allowing the jury to consider a 

different dangerous condition in response to each question.22 

Caltrans’s position is that, because the special verdict consistently asks 

questions regarding “the dangerous condition” (italics added), there can be 

only one dangerous condition; and since the jury found all elements necessary 

for an application of design immunity to “the dangerous condition” (italics 

added), the trial court erred in not applying the defense to the dangerous 

condition found by the jury. We disagree. The jury was not instructed that it 

could only consider one dangerous condition; and the first special verdict 

question asked only whether “the onramp” was “in a dangerous condition.” 

(Italics added.) Given the evidence, the arguments of counsel, and no 

instruction to the contrary, the jury was entitled to find section 835 liability 

based on one dangerous condition and section 830.6 immunity for a different 

dangerous condition. 

22 Based on the trial court’s comments prior to counsel presenting their 

closing arguments, we understand the form of the special verdict to have 

been prepared and submitted jointly by Plaintiff and Caltrans. 
35

Plaintiff first argues that Caltrans forfeited appellate review of the 

special verdict, because Caltrans did not object to the form of the special 

verdict or request clarification or further deliberation before the jury was 

discharged. (Citing Mesecher v. County of San Diego (1992) 9 Cal.App.4th 

1677, 1681 (Mesecher); Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-

265 (Keener).) We disagree. 

Mesecher involved a situation where the court found that the appellant 

had made a deliberate strategic choice in submitting a jointly drafted special 

verdict form. (Mesecher, supra, 9 Cal.App.4th at p. 1687.) However, there is 

no evidence of such gamesmanship here. (See also fn. 22, ante.) This 

distinction is significant, since a forfeiture of appellate review “is not found 

where the record indicates that the failure to object was not the result of a 

desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ ” 

(Woodcock, supra, 69 Cal.2d at p. 456, fn. 2.)

Keener involved a situation where the appellants raised the issue of 

incomplete polling of the jury (as opposed to inconsistent findings). (Keener,

supra, 46 Cal.4th at p. 262; see id. at p. 268, fn. 27 [“An ‘inconsistent’ verdict 

is one that is internally inconsistent—not merely a verdict as to which the 

polling was incomplete”].) By contrast, where (as here) the appellant claims 

reversible error based on an inconsistent special verdict, the appellant is not 

required to raise the issue in the trial court before the jury is discharged. 

(Trejo, supra, 13 Cal.App.5th at p. 123, fn. 4.)

Substantively, Plaintiff contends that, because the jury found 

Caltrans’s negligence to be a substantial factor in causing harm to Plaintiff 

(special verdict question Nos. 3, 4, 5), such findings necessarily include the 

failure to maintain and the failure to warn—which are not subject to 

section 830.6’s design immunity defense. (See Mozzetti v. City of Brisbane 
36

(1977) 67 Cal.App.3d 565, 575 [design immunity does not apply to claim of 

negligent maintenance]; Flournoy v. State (1969) 275 Cal.App.2d 806, 811 

(Flournoy) [“design immunity . . . is limited to a design-caused accident”].) 

Thus, Plaintiff’s argument continues, the special verdict is not inconsistent. 

We disagree. 

Special verdict question No. 1 asked the jury to determine whether 

“the onramp from northbound Lawrence Expressway to southbound

U[.]S[.] 101 [was] in a dangerous condition at the time of the accident.” 

(Italics added.) At trial, both parties and the jury proceeded with the 

understanding that “the onramp” included both design and non-designrelated conditions.23

In closing argument, Plaintiff’s counsel emphasized as “dangerous” the 

conditions that Plaintiff contended were a result of Caltrans’s failures to 

maintain the property (in particular, the overgrown shrubbery and faded 

paint) and to warn of the dangers of the crosswalk. For purposes of 

Caltrans’s design immunity defense, counsel referred to the Project plans and 

argued that there is “no design for faded crosswalks or [overgrown] 

shrubbery.” Consistently, for purposes of answering the special verdict 

question (No. 6) whether “the dangerous condition” was in the plans or design 

for the Project, counsel explained: “I think that’s an easy ‘No,’ because a 

failure to maintain is not in the plan or design.” In talking about question 

No. 1, however, counsel explained that the evidence supported a finding of 

numerous dangerous conditions in addition to a failure to maintain. Counsel 

23 On appeal, in his “Statement of Evidence at Trial,” Plaintiff selectively 

discusses only the evidence related to non-design conditions of “the onramp” 

that he attributed to Caltrans. 
37

explained that, for purposes of determining whether, at the time of the 

accident, “this onramp” was “a dangerous condition” (question No. 1): “This 

onramp includes the onramp, crosswalk, the shrubbery, the lack of signs 

. . . [, and the] lack of shark teeth.” (Italics added.)

In this latter regard, in Caltrans’s rebuttal argument, Caltrans’s 

attorney told the jury that, for purposes of answering special verdict question 

No. 1, the components that Plaintiff’s attorney described as being part of “the 

onramp” involved only design-related conditions:

“On the . . . issue of design immunity, basically, there’s two 

elements that are involved in play here. One deals with: 

. . . w[ere] the features that Plaintiff is complaining about 

that caused this accident [—] that is[,] the foliage, the 

crosswalk in relation to the crest, and the signage — were 

those present on the plans? [¶] And I would say yes, they 

were. [¶] . . . [¶] So was the crosswalk located [sic] 

included in the plans? Yes. [¶] . . . [¶] Was the foliage 

included on plans? Yes. [¶] . . . [¶] Was the vertical curve 

[which included the crest] shown on the plans? Yes. [¶] . . . 

[¶] The sign plan . . . shows the general location of . . . the 

signs. [¶] The lighting plan, with the overhead lights, 

that’s [an identified trial exhibit]. [¶] So all of those 

features were present in the plans.” (Italics added.)

Given the pleadings, the evidence at trial, the court’s instruction to the 

jury, and the closing arguments of counsel, based on our de novo review, we 

do not know which condition(s) of the onramp the jury found to be dangerous 

(for purposes of public entity liability under § 835) and which dangerous 

condition(s) of the onramp the jury found were in the plans or design for the 

Project (for purposes of design immunity under § 830.6). For this reason, the 

verdict is hopelessly ambiguous.

Caltrans argues that, based on the jury’s finding “the dangerous 

condition” was included “in the plan or design for the roadway” (special 

verdict question No. 6), it is entitled to judgment as a matter of law. We 
38

disagree. As we explained ante, the failure to have asked the jury to identify 

“the dangerous condition” leaves us without the ability to determine which of 

the potentially dangerous conditions the jury considered to be included in the 

plan or design for purposes of design immunity.24 Thus, at best, the 

inconsistency results in a hopelessly ambiguous verdict.

Plaintiff’s remaining arguments do not convince us otherwise.

a. Inconsistent Findings

Plaintiff argues that the jury’s findings are not inconsistent, because 

once the jury found that the negligence of Caltrans employees created the 

dangerous condition (special verdict question No. 3) and the dangerous 

condition was a substantial factor in causing harm to Plaintiff (special verdict 

question No. 5), “liability for a non-design related dangerous condition was 

established.” We disagree. Plaintiff’s argument assumes that the negligence 

occurred after completion of the Project. However we do not know that, and 

we may not infer that (Trejo, supra, 13 Cal.App.5th at p. 124), since there is 

the possibility the jury believed the plans or designs contained a dangerous 

condition as a result of the negligence of Caltrans employees. 

Caltrans argues that the jury’s answer to special verdict question No. 6 

(design immunity) requires the conclusion that whatever condition the jury 

found to be dangerous (special verdict question No. 1), the jury found the

same condition to be “in the plan or design for the roadway” for purposes of 

question No. 6. In response, Plaintiff presents what he considers “another 

reasonable interpretation of the verdict which would explain the jury’s ‘yes’ 

24 We disagree with Plaintiff’s unsupported statement that, “[f]rom a 

practical standpoint,” a special verdict form that required the jury to identify 

the dangerous condition(s) could not have been drafted. 
39

answers to Questions 6 and 7.”25 According to Plaintiff, this other

reasonable interpretation requires us to accept Plaintiff’s explanation that 

“[t]he trial judge was in the best position to interpret the jury verdict since he 

. . . viewed the conflicting testimony from Caltrans’ experts and its . . . 

witnesses as it related to the crest and placement of the crosswalk lines.” 

(Italics added.) The trial court, however, may not weigh conflicting evidence 

in order to avoid an inconsistent verdict. (Singh, supra, 186 Cal.App.4th at 

p. 357.) 

b. Negligence of Caltrans 

Plaintiff next focuses on special verdict question Nos. 3, 4, and 5, by 

which the jury found, respectively: Caltrans employees “create[d] the 

dangerous condition”; Caltrans failed to “act[ ] reasonably in failing . . . to 

protect against the risk of injury”; and “the dangerous condition [was] a 

substantial factor in causing harm to . . . Carpio.” Based on these three 

findings, Plaintiff argues that they “did not have any bearing on the jury’s 

answers to Questions 6 and 7 [regarding design immunity], since the [three 

findings] had nothing to do with a plan or design.” We disagree. As we 

concluded ante, without knowing which dangerous condition the jury was

considering when it answered any of the special verdict questions, we cannot 

conclude that the dangerous condition in the jury’s answers to question 

Nos. 3, 4, and 5 is a different dangerous condition than the jury considered in 

answering question Nos. 6 and 7.

25 By this argument, Plaintiff acknowledges that there are multiple 

“reasonable interpretation[s] of the [special] verdict” that result in different 

outcomes.
40

Further, we reject Plaintiff’s suggestion that the findings regarding 

negligence necessarily apply to a failure to maintain, such that certain 

physical conditions which were approved in the plan or design changed (see 

Alvarez, supra, 79 Cal.App.4th at p. 737). Based on the instructions on the 

special verdict, the jury was told not to answer the questions related to 

whether the roadway “bec[a]me dangerous because of a change in physical 

conditions”; and we may not infer findings to support the Judgment. (Trejo, 

supra, 13 Cal.App.5th at p. 124.)

Code of Civil Procedure section 624 requires that the jury’s findings 

“must be so presented as that nothing shall remain to the Court but to draw 

from them conclusions of law.” We are unable to do so here, and the trial 

court erred in determining otherwise by entering the Judgment.26

c. Failure to Warn

By its answers to special verdict question Nos. 6 and 7, the jury made 

findings that established the elements necessary for an application of 

26 For example, in the Section 663 Order, the court explained that, based 

on the jury’s answers to the special verdict questions, “Failure to maintain is 

within the scope of and consistent with the special findings of the jury.” By 

that ruling, the court necessarily determined that the jury found the failure 

to maintain to be “the dangerous condition.” However, failure to maintain is 

not the only dangerous condition that is within the scope of and consistent 

with the jury’s findings.

Likewise, we reject Caltrans’s suggestion that, because the jury found 

that the dangerous condition was in the plan or design (special verdict 

question No. 6), the jury necessarily failed to find a failure to maintain 

(unanswered special verdict question No. 9). Given the evidence, the 

arguments of counsel, and the form of the special verdict, we cannot conclude 

that, had the jury answered special verdict question No. 9 (asking about 

failure to maintain), the jury would have been considering the same 

dangerous condition that it considered in answering special verdict question 

No. 6 (finding design immunity).
41

statutory design immunity (§ 830.6) to “the dangerous condition.” Relying on 

section 830.8,27 Plaintiff contends that Caltrans’s failure to post a sign of a 

hidden dangerous condition—i.e., a concealed trap—“create[d] an 

independent basis for liability” for the dangerous condition that is otherwise 

subject to design immunity. (Italics added.) 

We disagree. Section 830.8 does not provide an independent basis of 

liability. To the contrary, “ ‘[a] public entity is not liable for injuries except as 

provided by statute (§ 815) and . . . section 835 sets out the exclusive

conditions under which a public entity is liable for injuries caused by a 

dangerous condition of public property.’ ” (Metcalf v. County of San Joaquin

(2008) 42 Cal.4th 1121, 1129, italics added, quoting Brown v. Poway Unified 

School Dist. (1993) 4 Cal.4th 820, 829.)

Section 830.8 provides public entities with “a limited immunity” for 

“exercising their discretion in the placement of warning signs described in the 

Vehicle Code.” (Kessler v. State of California (1988) 206 Cal.App.3d 317, 

321.) A public entity loses this protection and may be liable for injuries, 

however, when it fails to provide traffic signals or signs of a type other than 

27 Section 830.8 provides: “Neither a public entity nor a public employee 

is liable under this chapter for an injury caused by the failure to provide 

traffic or warning signals, signs, markings or devices described in the Vehicle 

Code. Nothing in this section exonerates a public entity or public employee 

from liability for injury proximately caused by such failure if a signal, sign, 

marking or device (other than one described in Section 830.4) 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 due care.” 
42

those described in section 830.428 that “constitute[ ] a concealed trap for 

those exercising due care, assuming the conditions of its liability under 

section 835 are otherwise met.”29 (Washington v. City and County of San 

Francisco (1990) 219 Cal.App.3d 1531, 1537; accord, Pfeifer v. San Joaquin 

County (1967) 67 Cal.2d 177, 184 [the trap exception to § 830.8 immunity is 

inapplicable unless a dangerous condition under § 835 “is first shown” to 

exist].) A concealed trap, and thus potential liability for the public entity, 

may result where “the physical characteristics of the site create a hidden 

hazard that in the absence of suitable warning devices would not be 

anticipated and could endanger careful motorists or pedestrians[.]” 

(Van Alstyne, op. cit. supra, § 12.78, p. 12-112.)

The issue in this appeal is whether the concealed trap exception to the 

limited immunity provided in section 830.8 precludes application of the 

design immunity provided in section 830.6. Plaintiff argues that it does (i.e., 

§ 830.8 allows for liability based on the failure to warn of a hidden trap, even 

where the trap is part of a dangerous condition subject to design 

immunity);30 and Caltrans argues that it does not (i.e., where the trap is 

28 Section 830.4 provides: “A condition is not a dangerous condition 

within the meaning of this chapter merely because of the failure to provide 

regulatory traffic control signals, stop signs, yield right-of-way signs, or speed 

restriction signs, as described by the Vehicle Code, or distinctive roadway 

markings as described in Section 21460 of the Vehicle Code.”

29 As argued by the parties without discussion, we will assume without 

deciding that the failure to warn of a pedestrian crosswalk is covered by 

section 830.8 (not by § 830.4).

30 Plaintiff suggests that “the fact the lines [of the crosswalk] were 

incorrectly painted behind the crest” is the dangerous condition that resulted 
43

part of a dangerous condition subject to design immunity, § 830.8 does not 

provide an independent basis for liability). As we explain, Caltrans has the 

better position.

In Compton v. City of Santee (1993) 12 Cal.App.4th 591, the plaintiff 

argued that a sight restriction on a bridge created a trap, precluding design 

immunity under section 830.6. (Compton, at p. 595.) In affirming a 

summary judgment in favor of the city, this court recognized the trap 

exception to the limited immunity provided in section 830.8, but held that it 

did not create an exception to design immunity under section 830.6: 

“While section 830.8 states that immunity for failure to 

provide warning signs does not apply where there is a 

dangerous hidden condition, it in no way purports to create 

an exception to design immunity under section 830.6. It 

would be illogical to hold that a public entity immune from 

liability because the design was deemed reasonably 

adoptable, could then be held liable for failing to warn that 

the design was dangerous.” (Compton, at p. 600.)

Likewise, in Weinstein v. Dept. of Transportation (2006) 139 

Cal.App.4th 52, the Sixth District held that, where a public entity is entitled 

to section 830.6 design immunity for “each of the[ ] aspects of the roadway’s 

design” that the plaintiff claimed is a dangerous condition, the absence of a 

sign warning of a hidden dangerous condition is not an exception to the 

limited immunity provided in section 830.8. (Weinstein, at p. 61.)

Plaintiff’s authorities do not convince us otherwise. 

In Flournoy, supra, 275 Cal.App.2d 806, the trap at issue was part of 

an allegedly dangerous condition that was not design-related for purposes of 

an application of design immunity under section 830.6. (Flournoy, at p. 813 

in a trap for which section 830.8 allows a claim for failure to warn. Plaintiff 

lists five other “conditions,” but none would have allowed or required signage. 
44

[“design immunity is not an available defense” for the dangerous condition].) 

Being factually distinguishable, Flournoy is inapplicable here.

In Cameron, supra, 7 Cal.3d 318, the dangerous condition was a 

highway curve with an uneven superelevation (or “banking”) that a driver 

exercising due care would not perceive. (Id. at p. 323.) This condition would 

trap a driver into thinking the curve continued to the left, while in fact it 

continued to the right. (Ibid.) There was no warning sign indicating the 

proper speed to safely negotiate this curve. (Ibid.) The court first ruled that, 

on the record presented, the defendant was not entitled to section 830.6

design immunity for the dangerous curve because the uneven superelevation 

was not part of the design. (Cameron, at p. 326.) On remand, the defendant 

was not precluded from producing additional evidence to show that the 

superelevation was subject to design immunity under section 830.6. 

(Cameron, at p. 327, fn. 11.) For the guidance of the trial court on remand, 

the Supreme Court noted that, to the extent the defendant relied on 

section 830.8 for the limited immunity related to signage, the plaintiff was 

entitled to argue the hidden trap exception to the defense. (Cameron, at 

pp. 327-329.) Contrary to Plaintiff’s argument in the present appeal, 

however, we do not read Cameron as ruling that the plaintiff in that case had

an independent basis of liability under the hidden trap exception if design 

immunity ultimately did apply to the superelevation of the curve on remand. 

In Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82

(Anderson), the appellate court first concluded that the city was entitled to 

design immunity for an allegedly dangerous highway curve. (Id. at pp. 90-

91.) Instead of affirming the judgment for the city, however, the court relied 

on Cameron, supra, 7 Cal.3d at page 329, and held that the plaintiffs had an 

independent ground of liability for failure to warn of a dangerous condition. 
45

(Anderson, at pp. 91-92.) We believe the Anderson court’s reliance on 

Cameron was misplaced, because—as we explained in the previous 

paragraph—we do not read Cameron as ruling that a plaintiff would have a 

cause of action for failure to warn in this situation.

The last case on which Plaintiff relies is Tansavatdi v. City of Rancho 

Palos Verdes (2021) 60 Cal.App.5th 423, review granted Apr. 21, 2021, 

S267453. There the court held that “design immunity does not, as a matter 

of law, preclude liability under a theory of failure to warn of a dangerous 

condition.” (Id. at p. 441.) As in Anderson, supra, 65 Cal.App.3d at pages 91-

92, Tansavatdi stated that it was relying on Cameron, supra, 7 Cal.3d at 

page 329, for its holding. (Tansavatdi, at pp. 441-442, review granted 

Apr. 21, 2021, S267453.) Again, as we explained in our discussion of 

Cameron and Anderson, ante, we do not read Cameron as either holding or 

suggesting that section 830.8 provides a plaintiff with an independent claim 

for failure to warn in this situation.

Finally, Plaintiff argues that the failure to warn also applies to 

dangerous conditions not subject to design immunity. We reject this 

contention, since it requires us to infer a finding—namely, that “the 

dangerous condition” for purposes of special verdict question No. 8 was one 

not subject to design immunity—which we may not do in our de novo review. 

(Trejo, supra, 13 Cal.App.5th at p. 124.)

d. Harmless Error

Plaintiff next argues that, if this court concludes the special verdict is 

fatally inconsistent—as we just have—any such error is harmless. We 

disagree.

Trial court error alone does not entitle Caltrans to relief on appeal.

For the error to require a reversal, an appellant like Caltrans must also 
46

establish prejudice (Code Civ. Proc., § 475) that results in a “miscarriage of 

justice” (Cal. Const., art. VI, § 13) as a result of the error. (Pool v. City of 

Oakland (1986) 42 Cal.3d 1051, 1069 (Pool).) A “miscarriage of justice” may 

be found on appeal “ ‘ “only when the court, ‘after an examination of the 

entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably 

probable that a result more favorable to the appealing party would have been 

reached in the absence of the error.” ’ ” (Ibid.; accord, Code Civ. Proc., § 475.) 

In the context of this appeal, “ ‘ “a result more favorable to the 

appealing party” ’ ” (Pool, supra, 42 Cal.3d at p. 1069; accord, Code Civ. Proc., 

§ 475) means a judgment not based on an inconsistent verdict—not

necessarily, as Plaintiff suggests, a judgment in favor of Caltrans. To accept 

Plaintiff’s argument would require this court to choose between the jury’s 

inconsistent answers to special verdict questions—which we may not do.31

(Singh, supra, 186 Cal.App.4th at p. 358.) “[Plaintiff] is no more entitled 

than [Caltrans] to have the favorable verdict credited and the unfavorable 

one disregarded.” (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 

1346.) Instead, “[t]he proper remedy for an inconsistent special verdict is a 

new trial.” (Singh, at p. 358.)

31 Plaintiff relies on Taylor v. Nabors Drilling USA, LP (2014) 222 

Cal.App.4th 1228 for the proposition that “a defective special verdict did not 

require reversal because the error was harmless.” The defect in that special 

verdict, however, was the failure to have asked the jury for findings on each 

element of the cause of action; and in its de novo review, the court concluded 

that, based on the overwhelming evidence in support of the plaintiff’s claim, 

the error was harmless. (Id. at pp. 1244-1246.) By contrast, here, the defect 

is a hopelessly ambiguous special verdict.
47

e. Substantial Evidence

Plaintiff argues that substantial evidence does not support “the jury’s 

finding of any dangerous condition that was approved in a plan or design.” 

Because we “ ‘ “ ‘must presume that the record contains evidence to support 

every finding of fact,’ ” ’ ” as the party challenging the sufficiency of the 

evidence, Plaintiff has the “ ‘burden . . . to identify and establish deficiencies 

in the evidence.’ ” (Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 

1310, 1326 (Holguin).) This requires, at a minimum, that Plaintiff, as the 

party challenging the sufficiency of the evidence, set forth in his brief all the 

material evidence on the point (before establishing that it is not substantial). 

(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman).) 

“ ‘Unless this is done the error assigned is deemed to be waived.’ ” (Ibid.) In 

this regard, “the point” for which Plaintiff is required to set forth the material 

evidence is whether “the dangerous condition . . . [was] in the plan or design 

for the roadway.” Here, Plaintiff sets forth and challenges only the 

sufficiency of the evidence to support a finding that “the crosswalk was 

designed to be placed behind the crest.” (Capitalization and bolding omitted.) 

In doing so, Plaintiff failed to meet his burden.

First, by his argument, Plaintiff assumes that the jury based its finding 

of design immunity on the location of the crosswalk relative to the crest. 

However, that assumption is unsupported by the record, since there is no 

such finding in the special verdict.32 

32 Moreover, there is no reason for Plaintiff to have assumed that the jury 

based its finding on the location of the crosswalk relative to the crest. In 

arguing to the jury that the “onramp” was “in a dangerous condition,” 

Plaintiff’s counsel explained that the onramp included both the “onramp” and 

the “crosswalk” (and the lack of signage and shark teeth) with no mention of 

the crest. 
48

Second, here, the jury found that “the dangerous condition . . . [was] in 

the plan or design for the roadway”; yet Plaintiff argued to the jury that 

many conditions—including, but not limited to, the shrubbery and signage—

were dangerous for purposes of section 835. By limiting his evidentiary

presentation on appeal to the placement of the crosswalk in relation to the 

crest, Plaintiff necessarily forfeited his substantial evidence argument. 

(Foreman, supra, 3 Cal.3d at p. 881.) “The reason for this is that ‘if the 

[parties challenging the sufficiency of the evidence] fail to present us with all 

the relevant evidence, then [these parties] cannot carry their burden of 

showing the evidence was insufficient to support the [jury’s finding] because 

support for that decision may lie in the evidence [these parties] ignore.’ ” 

(Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1072 (Delta 

Stewardship Council).) 

Finally, by acknowledging in his appellate briefing on this issue that 

“there is a crosswalk shown on the plans,” Plaintiff cannot establish a lack of 

substantial evidence that the placement of the crosswalk on the onramp was 

not included “in the plan or design for the roadway” for purposes of the jury’s 

answer to special verdict question No. 6. 

Even if we were to consider Plaintiff’s condition-specific danger—i.e., 

the location of the crosswalk relative to the crest—the result would be no 

different. As we explain, substantial evidence supports the jury’s finding 

that the plan or design of the roadway contains the dangerous condition.

For purposes of our substantial evidence review, “ ‘all conflicts must be 

resolved in favor of the [finding made], and all legitimate and reasonable 

inferences indulged in to uphold the [finding] if possible. . . . [W]hen a 

[finding] is attacked as being unsupported, the power of the appellate court 

begins and ends with a determination as to whether there is any substantial 
49

evidence, contradicted or uncontradicted, which will support the [finding].’ ” 

(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571, 

quoting Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) “ ‘[T]he 

test is not the presence or absence of a substantial conflict in the evidence.

Rather, it is simply whether there is substantial evidence in favor of the 

[verdict].’ ” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 

770.) “If this ‘substantial’ evidence is present, [it is of] no matter how slight it 

may appear in comparison with the contradictory evidence[.]” (Howard v. 

Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) In determining

the sufficiency of the evidence, we “may not weigh the evidence or consider 

the credibility of witnesses.’ ” (Campbell v. General Motors Corp. (1982) 32 

Cal.3d 112, 118 (Campbell); accord, Howard, at p. 631.) 

At trial, Caltrans’s Project engineer testified that the location of the 

crosswalk was determined by specific information contained in the Project 

plans—namely, “the geometry of the interchange, location of the lanes, the 

location of the sidewalks, [and] the placement of the wheelchair ramps.” 

More specifically, in trial exhibit No. 507—i.e., the as-built plans for the 

Project—he identified for the jury “the location of the crosswalk that’s at 

issue in this case” in the plans, having just explained that the plans also 

directed the location of the vertical curve, which included the crest, on the 

onramp. Finally, the Project engineer testified that his signature on the 

as-built plans indicated that the plans were prepared under his supervision 

“according to standards” and the Project was “built according to the plans and 

according to the . . . California standards [at] that time.” This is substantial 
50

evidence in support of the finding (in response to question No. 6) that “the 

dangerous condition . . . [was] in the plan or design for the roadway.”33

f. New Trial

As we explained ante, “[t]he proper remedy for an inconsistent special 

verdict is a new trial.” (Singh, supra, 186 Cal.App.4th at p. 358.) 

Plaintiff argues that, in the event a new trial is ordered, the retrial 

should be limited to “the narrow issues raised” in Caltrans’s opening brief on 

appeal. Without identifying what Plaintiff considers to be “the narrow 

issues” raised by Caltrans, he suggests that there is no need to retry “the 

question of Plaintiff’s damages or the question of fault attributable to the 

driver or Plaintiff.” Caltrans disagrees, replying that, in the event of a new 

trial, all issues must be retried. 

In ordering a retrial, the appellate court has the power to limit the 

issues to be retried, but only where those “ ‘issue[s] can be separately tried 

without such confusion or uncertainty as would amount to a denial of a fair 

trial.’ ” (Torres v. Automobile Club of Southern California (1997) 15 Cal.4th 

771, 776.) A partial (as opposed to full) new trial should be ordered “ ‘only if 

it is clear that no injustice will result . . . [, and] any doubts should be 

resolved in favor of granting a complete new trial.’ ” (Liodas v. Sahadi (1977) 

33 Plaintiff criticizes this and other related evidence as being insufficient 

to contradict the Project engineer’s earlier deposition testimony and/or 

unsupported by the specific pages of the trial exhibit on which he based his 

testimony. By this argument, Plaintiff asks us to consider purportedly 

contradictory testimony, determine a witness’s credibility, and weigh 

documentary versus oral evidence—none of which is allowed in reviewing the 

record for substantial evidence (Howard, supra, 72 Cal.App.4th at p. 631; 

Campbell, supra, 32 Cal.3d at p. 118).
51

19 Cal.3d 278, 285-286.) In exercising this discretion, our principal 

consideration is the potential “prejudice to the litigants.” (Torres, at p. 776.)

As we explain, there is no need to retry Plaintiff’s cause of action for 

negligence against the driver of the vehicle; and we will affirm the Judgment 

as to him. All claims and defenses between Plaintiff and Caltrans are to be 

retried.

i. The Driver

With regard to the driver, Caltrans argues that a new trial is 

necessary, because without knowing “whether [the driver] caused or 

contributed to Plaintiff’s injuries[, . . .] liability and immunity as to Caltrans 

could not be separately retried without confusion, uncertainty and prejudice.” 

For a number of independent reasons, we decline to reverse the Judgment 

and order a new trial as to the driver.

First, because Caltrans failed to serve the driver with its appellate brief 

in which it requested a new trial as to the driver (or anything else it filed in 

this appeal), Caltrans’s position is patently unfair and prejudicial to the 

driver.34

Second, the entirety of Caltrans’s argument as to “confusion, 

uncertainty and prejudice” in the event of no retrial as to the driver reads as 

follows: “A retrial that informed the jury that it had already been 

determined that [the driver] was not at fault would unfairly prejudice 

Caltrans by making the jury more inclined to find Caltrans liable.” (Citing 

authority only for the proposition that doubts on the scope of retrial be 

34 Based on this lack of service, the court inquired of the parties their 

understanding of the driver’s status in the litigation. In response, the parties 

advised the court that Plaintiff settled with the driver and that the driver is 

not a party to the appeal. 
52

resolved in favor of a full new trial.) However, Caltrans has provided no 

explanation or legal authority to support how or why a jury would be “more 

inclined to find Caltrans liable” if the driver is not a defendant. As such, 

Caltrans forfeited appellate review of the issue. (Delta Stewardship Council, 

supra, 48 Cal.App.5th at p. 1075 [where a party on appeal fails to provide 

“reasoned argument and citations to authority, we treat the point as 

forfeited”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must 

be supported “by argument and, if possible, by citation of authority”].) 

Even if we considered the merits of Caltrans’s position, the result 

would be no different.

In the complaint, Plaintiff alleged two distinct and severable causes of 

action: a common law claim for negligence against the driver (and another 

party who is not mentioned in the special verdict, the Judgment, or the 

parties’ appellate briefing); and a statutory claim against Caltrans (and other 

governmental entities not mentioned in the special verdict or the Judgment) 

for a dangerous condition of public property. Where “the error found to have 

been committed has affected the determination of but one or more of a 

greater number of distinct and severable issues or causes of action,” the 

judgment may be reversed only in part. (Gray v. Cotton (1913) 166 Cal. 130, 

139.) Here, the claims and defenses related to the driver are “distinct and 

severable” from the claims and defenses related to Caltrans.

The driver is mentioned in only one of the special verdict questions

answered by the jury (No. 11): “Was [the driver of the vehicle that struck 

Plaintiff] negligent?” The jury was not asked or required to make any 

additional findings as to the driver. Thus, the inconsistency in the special 

verdict is limited to Plaintiff’s statutory claim for a dangerous condition of 

public property. The inconsistency has nothing to do with the driver, the 
53

driver’s alleged negligence, or Plaintiff’s claim against the driver for common 

law negligence.

We will affirm the Judgment as to the driver.35

ii. Damages

With regard to damages, Caltrans argues that a new trial is necessary

due to Carpio’s death during the pendency of the appeal. Caltrans contends 

that, following a reversal of the Judgment, Plaintiff’s claim on retrial—now 

being prosecuted by the personal representatives of Carpio’s estate (see fn. 1, 

ante)—will not support an award of non-economic damages. (Citing Code 

Civ. Proc., § 377.34.36) 

At a minimum, therefore, the parties present a valid dispute as to what 

damages may be recovered on retrial, and Plaintiff has not had an 

opportunity to respond to Caltrans’s argument regarding non-economic 

damages. For this reason, on the limited record presented in this appeal, we 

decline to allow or limit the damages claimed. Thus, without deciding what 

damages may be sought on retrial, we leave for the trial court on remand the 

35 By precluding a retrial of Plaintiff’s cause of action against the driver, 

we are not—as suggested by Caltrans—deciding that, at the retrial, the jury 

must be informed that the driver “was not at fault.” We express no opinion 

as to what the jury will be informed; that is up to the trial court on remand.

36 Code of Civil Procedure section 377.34 provides in part: “In an action 

or proceeding by a decedent’s personal representative or successor in interest 

on the decedent’s cause of action, the damages recoverable are limited to the 

loss or damage that the decedent sustained or incurred before death, . . . and 

do not include damages for pain, suffering, or disfigurement.”
54

responsibility of determining the issues associated with Plaintiff’s statutory 

claim against Caltrans for a dangerous condition of public property.37

iii. Plaintiff’s Negligence

With regard to the jury’s finding that Carpio was not negligent 

(in crossing the onramp), Plaintiff argues that, because there was “a full 

and fair trial” on issues associated with Plaintiff’s negligence “and the only 

error Caltrans asserts is that the jury verdict is hopelessly ambiguous,” 

there is no need to retry the alleged negligence of, and thus the allocation 

of fault attributable to, Plaintiff. We disagree.

Unlike the negligence of, and thus the allocation of fault attributable 

to, the driver—which was determined in a separate, severable cause of 

action—the negligence of Plaintiff is at issue, if at all, solely as an affirmative

defense to the cause of action against Caltrans for a dangerous condition of 

public property. Since the Judgment is being reversed as to this cause of 

action (against Caltrans only), the entire cause of action, including Caltrans’s 

potential affirmative defenses, should also be retried. Any other result would 

be unfair to Caltrans.

C. Plaintiff’s Appeal from the Postjudgment Order (D078581)

Plaintiff appealed from the Postjudgment Order. In the Postjudgment

Order, the trial court denied Plaintiff’s motion to enforce the terms of 

Caltrans’s elected periodic payments to pay the Judgment. (§ 984.)

Upon issuance of the remittitur in this appeal, the Judgment will be 

reversed. When a judgment is reversed, “incidental matters, proceedings, or 

37 Nothing we say in this opinion is intended to influence the trial court’s 

rulings on any of the issues or arguments that the parties may raise on 

remand.
55

claims based on the judgment are likewise nullified.” (9 Witkin, Cal. Proc. 

(5th ed. 2008) Appeal, § 869, p. 929; see, e.g., Harris v. Wachovia Mortgage, 

FSB (2010) 185 Cal.App.4th 1018, 1027 [as a matter of law, “the award of 

costs necessarily falls with the [reversal of the] judgment”].) Where, as here, 

an appeal has been taken from such incidental matters based on the 

judgment and the judgment is reversed, the appeal from the incidental 

matters “is moot and . . . must be dismissed.” (Evans v. Southern Pacific 

Transportation Co. (1989) 213 Cal.App.3d 1378, 1388.)

Accordingly, we will vacate the Postjudgment Order and dismiss 

Plaintiff’s appeal from the Postjudgment Order.
56

IV. DISPOSITION

Plaintiff’s cross-appeal is dismissed. The Judgment is affirmed as to 

the driver, defendant Patrick Aubin. In all other regards, the Judgment is 

reversed, and the matter is remanded for a new trial. The Postjudgment

Order is vacated, and Plaintiff’s appeal from that order is dismissed. The 

parties are to bear their respective costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(5).)

IRION, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.