Background

In April 2009, Robert and Margaret Johnson were visiting with Robert's daughter,

son-in-law, and grandchild at the Sheraton Hotel on Harbor Island. At about 10:45 p.m.,

Robert and Margaret left the hotel in their van. Margaret was driving and Robert was in

the passenger's seat. From the hotel parking lot, Margaret turned southbound on Harbor

Island Drive towards Harbor Island Drive, which parallels San Diego Bay. These two

1 Section 830.4 states: "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." Further statutory references are to the Government Code unless otherwise specified.

2 Section 830.8 states: "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."

2 streets have the same names. For clarity, we refer to the street paralleling the bay as

"Main Harbor Island Drive," and we refer to the north-south street on which Margaret

was driving from the hotel as "South Harbor Island Drive."

South Harbor Island Drive has a posted speed limit of 35 miles per hour, and

Margaret was driving at or below the speed limit. When Margaret reached Main Harbor

Island Drive, there is a T-intersection with a traffic signal at which the cars must go left

or right. The San Diego Bay is at the top of the T-intersection beyond a narrow strip of

grass. Before the T-intersection, South Harbor Island Drive has two well-marked left

turn lanes, with large left arrows and "SIGNAL AHEAD" markings on the pavement.

The traffic signal at the intersection contains a lighted green arrow showing when a left

turn is permissible. To the left and above the traffic signal is a sign with two left arrows.

The left turn is at a 90-degree angle. The right turn begins earlier and is a soft curved

right turn.

As Margaret was attempting to make a left turn onto Main Harbor Island Drive

from one of the left turn lanes on South Harbor Island Drive, she failed to negotiate the

turn and instead drove over an unguarded curb and into the San Diego Bay. The vehicle

went under the water with both occupants trapped inside. After several minutes,

emergency personnel removed the Johnsons. Both died within several days.

Plaintiffs (Robert's estate and survivors) sued the Port, alleging the accident was

caused by the dangerous condition of the Port's property.3 (See § 835.) The Port moved

3 Margaret's heirs/beneficiaries also sued, but settled before trial began. 3 for summary judgment on the grounds that: (1) the public property was not in a

dangerous condition; and (2) the action was barred by a public entity's discretionary

design immunity (§ 830.6). The court denied the motion, finding triable factual issues on

whether the T-intersection constitutes a dangerous condition and whether there was

discretionary approval of the design plans and/or deviation from applicable standards.

The Port petitioned this court for a writ of mandate seeking to overturn the court's ruling.

This court summarily denied the petition.

Plaintiffs' expert, experienced traffic engineer Harry Krueper, thereafter testified at

his deposition that although he did not believe the physical design of the intersection was

"wrong," he found the T-intersection to be unsafe. Krueper said: "[T]here was no form

of . . . advanced warning sufficient to tell the person that the roadway ends for straight-

through traffic. There was no curve warning sign advisory, as well as an advisory speed

demarcation before you reached the intersection itself." Krueper also said: "[T]here is a

slight cresting of the hill on the roadway that does not allow you to see out at night into

the bay to notice the water out there. Daytime you can see it, but not at nighttime, which

would call for a sign and marking of some type to identify that the road routing definitely

changes." After discussing evidence that the curb at the top of the intersection had

various marks indicating to Krueger that numerous other cars had misjudged the

sharpness of the left turn, Krueper stated:

"So I felt that an unsafe condition was allowed to exist, was not thoroughly investigated. There was no form of warning as to the need for a reduced speed for left turns. Not necessarily for right turns, but for left turns because of the physical conditions of the roadway. [¶] I am not saying it was designed wrong, no. It's not a

4 design immunity from traffic engineering that I'm looking at. I'm looking at the method of operation. I'm looking at you have a 35- mile-per-hour approach speed sign. I have no objection to that, except you slow them down at the intersection and you identify the intersection. And that was not done."

Krueper further said: "A design element is something that calls for such items as radius

of curvature, features like that. I have no objection to that. The thing is to making the

driver aware that there is a limitation as to what it was on his approach. [T]hat's

operational."

Relying on Krueper's opinions, in their trial brief plaintiffs asserted that a

combination of factors made the T-intersection dangerous when used with due care.

According to plaintiffs, the Port should have provided signs to warn drivers of the sharp

left turn, the need to reduce speed in the turn, and the existence of the bay at the end of

the T-intersection.

Port's Motion in Limine No. 3

Before trial, the Port filed Motion in Limine No. 3, requesting the court to exclude

Krueper's "opinions and testimony that additional warning signs . . . would have

prevented the subject accident." The Port stated the motion was "made on the grounds

that any such opinions and testimony would be speculative . . . [and the Port] cannot be

held liable for its alleged failure to provide warning traffic signals, signs, postings or

markings." The Port argued it was immune from liability under sections 830.4, 830.6,

and 830.8, and that the evidence should be excluded under Evidence Code sections 210,

350, and 352.

5 In opposition, plaintiffs argued that Krueper's opinions were relevant and the

statutory immunities cited by the Port are affirmative defenses to be established at trial

and are not proper grounds for excluding evidence.

At the hearing on the in limine motions, the Port's counsel said the Port was

moving to exclude Krueper's testimony because Krueper admitted he had no criticisms of

the intersection's "design," and instead his only objection was that the Port should have

placed signs warning of the sharp left turn and the need to slow down while making the

turn. The Port's counsel argued that section 830.4's traffic-sign immunity rule bars these

opinions.4

Plaintiffs' counsel responded that section 840.4 is inapplicable because it applies to

traffic or regulatory signals, and Krueper's opinion concerned only warning signs, which

are governed by section 830.8. Plaintiffs' counsel also argued that section 830.4 applies

only when the absence of a sign is the sole claimed cause of the plaintiff's injuries, and

here there were multiple claimed causes. Plaintiffs' counsel argued Krueper should be

permitted to testify at trial that the physical aspects of the roadway approach and

intersection are such that they are dangerous absent a warning sign.

After considering these arguments, the court ruled that Krueper's testimony is

"totally contrary to [section] 830.4" and "[a]s a matter of law, [Krueper] can't give that

opinion." The court stated: "[Section] 830.4 says a condition is not a dangerous

4 The Port's counsel also discussed at length the design immunity defense. Because we do not reach the issue, we do not detail these arguments, or plaintiffs' response to the arguments. 6 condition within the meaning of this chapter merely because of a failure to provide

regulatory traffic control signs, stop signs, yield right of way signs, or speed restrictions

signs, et cetera. So the statute says Mr. Krueper can't say that." The court rejected

plaintiffs' counsel's repeated arguments that section 830.4 is inapplicable because

Krueper's opinions concern "warning" signs governed by section 830.8 and not

"regulatory" signs governed by section 840.4. The court stated: "[A] speed warning sign

is what [Krueper] is talking about. . . . [¶] . . . [¶] . . . I think that's 830.4. I don't think

that gets in front of the jury. I don't think he can have that opinion . . . as a matter of

statutory law."

Plaintiffs' counsel responded that the court's evidentiary ruling was "an outcome

determinative ruling. . . . I cannot make a case without [Krueper's] testimony." The court

then asked how "we preserve that in such a manner that [plaintiffs] can appeal . . . .

[¶] . . . [¶] . . . If I'm wrong on this, I want you to have the opportunity to do what you

think is appropriate." The court continued the hearing to the next day.

Opening Statement/Offer of Proof

The next morning, counsel informed the court they had agreed that plaintiffs'

counsel would make an opening statement/offer of proof, and the Port would then bring a

nonsuit motion. Both counsel indicated the nonsuit motion would be based on the

opening statement, the documents and arguments presented on the Port's Motion in

Limine No. 3, and the Port's written nonsuit motion submitted earlier that morning.

In his opening statement, plaintiffs' counsel described the T-intersection, and

stated the current design has been in place since approximately 1990. Counsel showed

7 diagrams of the intersection, and (as detailed in Section III.D. below) identified various

characteristics of the roadway that he said would deceive a reasonable driver to believe

the left turn would be a wide curve rather than a sharp 90-degree turn and would conceal

the existence of the bay beyond the intersection.

Plaintiffs' counsel said that based on these factors "[o]ur traffic engineer will

testify that [the specified] warning signs are necessary to alert a reasonable driver of the

necessity to reduce their speed and that a sharp turn is coming which would not be

apparent or anticipated by a reasonable driver." Counsel then spoke at length about the

difference between warning signs (governed by section 830.8) and regulatory signs

(governed by section 830.4). Counsel said Krueper would identify four warning signs

that should have been placed at or near the intersection: (1) an "advisory speed plate"

warning drivers to slow to "15 MPH" for the left turn; (2) a left turn sign used to provide

advance warning of a 90-degree sharp left turn; (3) a left arrow sign that would be placed

at the south end of the T-intersection showing a sharp left turn; and (4) a "chevron

alignment sign" also placed at the south end of the T-intersection showing a sharp left

turn. Counsel also discussed and provided a copy of relevant portions of the California

Department of Transportation traffic manual (Caltrans Manual) that distinguish between

warning signs (including the above signs) and "regulatory" signs.

Plaintiffs' counsel also discussed prior incidents at the intersection, including a

May 2008 incident during which a driver accidentally drove into the bay from South

Harbor Island Drive. Plaintiffs' counsel said the driver would testify at trial that "she was

unfamiliar with the road at night; she was going fast . . . she saw that expanse of black . . .

8 but she didn't know as the bay, assumed it was a road, until she approached the

intersection, saw grass behind the red curb, between the curb and the bay, and slammed

on the brakes. Her vehicle hit the curb, launched into the bay, went in nose first, and

rolled over." Plaintiffs' counsel said the Port knew about the incident, but took no action

to prevent similar accidents or warn motorists in the future. Plaintiffs' counsel also

discussed evidence showing that the south curb of the T-intersection contains "gouges

indicative of wheel contact and obvious tire marks, indicating that other vehicles . . . had

difficulty navigating that turn."

Based on these facts, plaintiffs' counsel argued that section 830.4 was inapplicable

because the statute concerned only "regulatory signs," and plaintiffs were claiming that

multiple factors made the intersection dangerous, not merely the lack of a sign. Plaintiffs'

counsel also stated that the "immunity of [section] 830.8 . . . does not apply because the

warning signs were necessary to alert an approaching motorist of a dangerous condition,

especially at night, that would not be . . . readily apparent to, or anticipated by, a careful

motorist. The standard of care and good engineering judgment required the placement of

the signs . . . in order to make the intersection safe . . . ."

When plaintiffs' counsel inquired whether he should address the design immunity

issue (§ 830.6), the court indicated this was not necessary as the Port was not relying on

section 830.6 for its motion. The Port's counsel agreed. Specifically, the following

discussion took place during plaintiffs' counsel's opening statement after he discussed the

section 830.4 and 830.8 immunities:

9 "[Plaintiffs' counsel]: The other immunity that's been asserted is discretionary immunity. Your Honor has ruled on that in summary judgment. I don't see any need to go into that right now, unless it's going to be an issue. If you can give me some guidance on that, I'd appreciate it."

"The Court: I don't know if [the Port's counsel] considers that an issue at this stage."

"[Port's counsel]: Not at this stage, your Honor."

"[Plaintiffs' counsel]: Okay. All right, I'll skip that."

Nonsuit Motion Arguments and Ruling

After the opening statement, the Port's counsel urged the court to grant the nonsuit

motion, stating "we really heard nothing new today" and reiterating that plaintiffs' claim

is barred by section 830.4. In response, plaintiffs' counsel repeated his argument that

section 830.4 is inapplicable because that section pertains to regulatory signs, not to

warning signs. Plaintiffs' counsel also argued that the warning signs identified by

Krueper "are relevant and material both to dangerous condition and the immunity of

[section] 830.8 . . . , both of which are jury questions, not questions of law."

The court then reaffirmed its finding that section 830.4 barred the claim, stating:

"[A]s we talked about, I'll grant the Port's nonsuit motion. That's the right vehicle to

preserve these issues. . . . That would allow the appellate court to review whether or not

these Government Code sections apply in this type of circumstance or not. I won't repeat

all of the discussion[s] we had yesterday."

The final judgment states the court granted the Port's nonsuit motion "on the

grounds . . . section 830.4 prevents plaintiffs from establishing that the Port District's

10 property at issue was in a dangerous condition at the time of the accident . . . ." The court

based its ruling on the plaintiffs' "offer of proof and/or an opening statement," the parties'

pleadings, "all lodged and filed documents in support of and in opposition to the parties'

motions in limine," the parties' trial briefs, the Port's brief in support of its nonsuit

motion, and counsels' arguments on the motions in limine and nonsuit motion.

DISCUSSION

I. Applicable Law Governing Government Tort Liability

A governmental entity is not liable for an injury unless liability is specifically

permitted by a statute. (§ 815.) Section 835 states that a public entity may be held liable

for a dangerous condition of public property under certain circumstances. (See Metcalf v.

County of San Joaquin (2008) 42 Cal.4th 1121, 1126; Cornette v. Department of

Transportation (2001) 26 Cal.4th 63, 68.) To establish liability under section 835, a

plaintiff must prove: (1) the property was in a "dangerous condition"; (2) the injury was

proximately caused by the dangerous condition; (3) the dangerous condition created a

reasonably foreseeable risk of the kind of injury that occurred; and (4) the public entity

had the requisite actual or constructive notice of the dangerous condition to permit it to

"protect against" the condition, or the injury was caused by a public employee's wrongful

act. (§ 835.)

"Dangerous condition" means "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).) A third party's negligent use of the

11 property does not negate the existence of a dangerous condition; the plaintiff need not

show property was actually being used with due care at the time of the injury. (Mathews

v. State of California ex rel. Department of Transportation (1978) 82 Cal.App.3d 116,

121; Murrell v. State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264,

267.)

These liability rules are subject to various exceptions/immunities, three of which

are potentially applicable in this case. First, as discussed in more detail below, section

830.4 excludes from the "dangerous condition" definition a condition resulting "merely"

from the failure to provide certain specified "regulatory" traffic control devices or signs.

(§ 830.4; see fn. 1, ante.) Second, section 830.8 provides governmental immunity for the

failure to provide signs "other than [those identified] in Section 830.4," unless the sign

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." (§ 830.8, italics added; see fn. 2, ante.)

Third, section 830.6 provides a public entity is immune for design defects under certain

circumstances, including where there was prior discretionary approval of the design

plans.

Under these governmental liability and immunity statutes, we consider plaintiffs'

claims that the court erred in granting the Port's motion in limine to exclude plaintiffs'

expert's testimony and granting the Port's nonsuit motion.

12

II. Motion in Limine

Plaintiffs contend the court erred in refusing to permit their expert to testify that

the Port's failure to provide speed advisory and turn warning signs created a dangerous

condition at the T-intersection.

A. Review Standard

" 'In limine motions are designed to facilitate the management of a case, generally

by deciding difficult evidentiary issues in advance of trial.' [Citation.] . . . [H]owever,

motions in limine also can function as 'an objection to any and all evidence on the

grounds [the] pleadings [are] fatally defective' for failure 'to state a cause of action.'

[Citation.] In such cases, the in limine motion 'operate[s] as a general demurrer to [the]

complaints or a motion for judgment on the pleadings.' [Citations.] 'Alternatively,'

where such motions are granted 'at the outset of trial with reference to evidence already

produced in discovery, they may be viewed as the functional equivalent of an order

sustaining a demurrer to the evidence, or nonsuit.' " (City of Livermore v. Baca (2012)

205 Cal.App.4th 1460, 1465.)

"When . . . the court's order excludes all [or the essential] evidence on a particular

claim and, as a result, operates as a motion for nonsuit, we review the court's order de

novo, examining the record in the light most favorable to the party offering the evidence.

[Citation.] In such cases, 'all inferences and conflicts in the evidence must be viewed

most favorably to the nonmoving party.' [Citation.]" (City of Livermore v. Baca, supra,

205 Cal.App.4th at p. 1465.)

13 B. Analysis

Generally, all relevant evidence is admissible except as otherwise provided by a

statutory or constitutional rule. (Evid. Code, § 351.) The court excluded Krueper's

opinions based on its conclusion they were irrelevant under section 830.4. Specifically,

the court found Krueper's dangerous-condition opinion was based on the Port's failure to

provide a speed restriction sign and determined that section 830.4 provides an absolute

immunity for liability on this ground.

On appeal, plaintiffs challenge these findings on two levels. First, they argue that

section 830.4 applies only when the failure to provide a listed sign was the sole reason for

the claimed dangerous condition (Washington v. City and County of San Francisco

(1990) 219 Cal.App.3d 1531, 1535-1536 (Washington)), and Krueper's opinion was that

numerous factors created the dangerous condition. Second, they argue section 830.4 is

inapplicable as a matter of law because it applies only to the regulatory traffic control

devices specified in the statute, and Krueper did not base his opinion on any of these

specified devices. Because we agree with the latter argument, we do not reach the first

argument for purposes of reviewing the order granting the motion in limine.

Section 830.4 states: "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 . . . ." (Italics added.) With respect to the alleged failure to provide

other types of official traffic signs, section 830.8 applies and provides a qualified

immunity.

14 The court found section 830.4 governed and required it to exclude Krueper's

opinions because one of the signs identified by Krueper—the turn advisory speed sign

("15 MPH")—is a "speed restriction" sign within the meaning of section 830.4. This

conclusion was erroneous.

First, the court's conclusion did not provide a basis to exclude Krueper's opinion

regarding the other signs (e.g., the sharp-left-turn sign, the chevron warning sign) that

clearly do not fall within the scope of section 830.4. Second, viewed in context of the

entire statute, a "speed restriction sign" refers to a particular type of maximum speed sign

that does not include the turn-speed warning sign at issue here. As explained, the

advisory speed sign identified by Krueper falls within section 830.8, and not section

830.4.

Section 830.4 applies to "speed restriction signs, as described by the Vehicle

Code." (Italics added.) The Vehicle Code describes a "speed restriction" sign to mean

signs that identify the maximum speed limit that is "different from the limit otherwise

applicable" under the generally applicable presumptions set forth in Vehicle Code

sections 22349 and 22352. (Veh. Code, § 21359; see also Van Alstyne et al., 2 Cal.

Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2012) § 12.75, p. 966.) Under

these code sections, a "speed restriction" sign is a sign that reflects a regulatory decision

to alter the presumptive maximum speed limit on a portion of a highway or roadway.

(Veh. Code, § 21359.) A "speed restriction" sign may also be placed at entrances to

business or residential districts and district boundaries to clarify the appropriate

maximum speed limit. (Veh. Code, §§ 21357, 21358.) Under these statutes, a "speed

15 restriction" sign does not include a sign warning that a lower speed is recommended for a

turn due to a particular unsafe condition.

This conclusion is supported by section 830.4's inclusion of the word "regulatory"

to describe the types of signs to which the statute applies. (§ 830.4.) To provide meaning

to this word, the courts have interpreted section 830.4 to apply only to "regulatory" signs

as opposed to "warning" signs. (See Dahlquist v. State of California (1966) 243

Cal.App.2d 208, 213 [noting that section 830.4 applies to "regulatory traffic-control

devices" rather than "warning signs and devices" that are subject to section 830.8]; 2 Cal.

Government Tort Liability Practice, supra, § 12.76, p. 969; see also Mixon v. Pacific Gas

& Electric Co. (2012) 207 Cal.App.4th 124, 135 [distinguishing between " 'regulatory' "

devices and "warning sign[s]" in interpreting sections 830.4 and 830.8].)

This regulatory-warning distinction has also been applied by the California

Department of Transportation (Caltrans), which is the agency charged with adopting rules

and regulations regarding traffic control devices, including regulatory and warning signs.

(Veh. Code, § 21400.) According to the Caltrans Manual, the types of signs listed in

section 830.4 (including stop signs, yield signs, and maximum speed restriction (or limit)

signs) are "regulatory" signs; whereas "warning signs" are signs that "alert vehicle

operators" of the need to "use caution" or "reduce speed." (CalTrans, Traffic Manual

(2006) ch. 4, Signs, §§ 4-01.7, 4-01.10, 4-02.1, 4-02.4, 4.03.1, accessible at

http://www.dot.ca.gov/hq/traffops/signtech/signdel/trafficmanual-current.htm [as of Dec.

26, 2013], italics added.) Each of the signs that Krueper opines should have been placed

at or near the T-intersection are identified in the Caltrans Manual as "warning signs"

16 (falling within section 830.8) and not "regulatory signs" (falling within section 830.4).

This includes the sign warning a driver to reduce speed at a turn or curve.

Although we have not found a reported decision that specifically addresses the

meaning of a "speed restriction sign," courts have long assumed that section 830.8 (rather

than section 830.4) applies where the issue concerns the public entity's failure to provide

a warning that a turn or curve should be driven at a speed lower than the generally

applicable speed limit. (See Cameron v. State of California (1972) 7 Cal.3d 318, 327,

[finding that public entity was not immune under section 830.8 where plaintiff alleged

that accident was caused by the lack of a proper warning of a dangerous curve and failure

to post a safe speed]; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 93.)

In its respondent's brief, the Port acknowledges that section 830.4 applies only to

"regulatory" as opposed to "warning" signs, and does not argue that the signs identified

by Krueper were regulatory signs. Although at one point the Port asserts that "[s]igns

warning motorists to slow down before making a left turn" are " 'speed restriction' " signs

within the meaning of section 830.4, the Port cites no relevant authority and makes no

reasoned argument supporting this position.

We conclude the court erred in granting the Port's motion in limine based on

section 830.4. We thus turn to the issue whether the court properly granted a nonsuit

assuming section 830.4 did not bar Krueper's testimony.

17

III. Nonsuit

A. Review Standards

"A defendant is entitled to nonsuit if the trial court determines as a matter of law

that the plaintiff's evidence, when viewed most favorably to the plaintiff under the

substantial evidence test, is insufficient to permit a jury to find in his favor." (Mendoza v.

City of West Covina (2012) 206 Cal.App.4th 702, 713.) Where, as here, the nonsuit was

based on the counsel's opening statement, we must assume the plaintiff can prove all the

stated facts. (Michael E. L. v. County of San Diego (1986) 183 Cal.App.3d 515, 533.)

A nonsuit after the opening statement is not favored and is rarely granted.

(Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424; John Norton Farms, Inc. v.

Todagco (1981) 124 Cal.App.3d 149, 171-172.) A nonsuit is warranted only if it is clear

there will be no evidence of sufficient substantiality to support a judgment in the

plaintiff's favor. (Willis v. Gordon (1978) 20 Cal.3d 629, 633; Ewing v. Northridge

Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1296.) Affirmative defenses

generally do not support a nonsuit because a plaintiff does not have the burden to negate

the applicability of an affirmative defense in the opening statement. (See Inderbitzen v.

Lane Hospital (1932) 124 Cal.App. 462, 465-466.) However, a nonsuit motion may be

granted if the opening statement contains " 'uncontrovertible proof' " of the applicability

of the affirmative defense. (Galanek, supra, 68 Cal.App.4th at p. 1424; Abeyta v.

Superior Court (1993) 17 Cal.App.4th 1037, 1041.)

We review a nonsuit de novo. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538,

1541-1542.)

18 B. Overview

The court granted a nonsuit based on section 830.4. For the reasons set forth in

Section II above, the court erred in doing so.

The Port argues that even if section 830.4 does not apply, the judgment must be

affirmed based on two other governmental immunities—section 830.8 and section 830.6.

Generally, after an opening statement, a nonsuit may be granted only on the grounds

asserted by the opposing party. However, a reviewing court may affirm a nonsuit based

on another ground if the record shows the plaintiff had the full opportunity to present the

facts relevant to this ground in the opening statement and the asserted facts show

plaintiffs cannot recover on their claim. (Timmsen v. Forest E. Olson, Inc. (1970) 6

Cal.App.3d 860, 868; see Lawless v. Calaway (1944) 24 Cal.2d 81, 94; Amtower v.

Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595.)

Under these principles, we determine the nonsuit was proper under section 830.8.

As explained below, the section 830.8 immunity defense was applicable on the face of

plaintiffs' claim and plaintiffs' counsel had the full opportunity to articulate facts that

would overcome the defense, but counsel's opening statement (together with plaintiffs'

documents and photographs) show plaintiffs would be unable to present facts satisfying

the statutory standard.

C. The Section 830.8 Immunity

Section 830.8 states:

"[A public entity is not] liable . . . for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a

19 public entity . . . from liability for an 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." (Italics added.)

Courts have long referred to this limited immunity rule as the "concealed trap"

exception because the statute requires a plaintiff seeking to hold a public entity liable for

the failure to post a warning sign to show the dangerous condition would not be apparent

to, or anticipated by, a person exercising due care. (Chowdhury v. City of Los Angeles

(1995) 38 Cal.App.4th 1187, 1196-1197; see Washington, supra, 219 Cal.App.3d at pp.

1536-1537; Kessler v. State of California (1988) 206 Cal.App.3d 317, 321-322; Callahan

v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 704; see also Cameron

v. State of California, supra, 7 Cal.3d at p. 327, fn. 12; Mixon v. Pacific Gas & Electric

Co., supra, 207 Cal.App.4th at p. 136; 4 Cal. Law Revision Com. Rep. (1963) p. 851.) In

other words, the plaintiff must show the dangerous condition was hidden or concealed,

essentially constituting a "trap" to a driver or pedestrian. (Washington, supra, 219

Cal.App.3d at pp. 1536-1537.)

D. Opening Statement

In his opening statement, plaintiffs' counsel discussed at length the grounds for

plaintiffs' claim that the T-intersection and left-turn lane presented a dangerous and

concealed condition. He stated this claim was based on various factors, including that:

(1) at nighttime a driver on South Harbor Island Drive would not necessarily see the bay

and would not know the road ends; (2) the approach to Main Harbor Island Drive is

20 "curvy"; (3) South Harbor Island Drive meets Main Harbor Island Drive "at a slight

curve"; (4) there is a crest in the road that obscures or blocks the driver's view of the

intersection until immediately before the intersection; (5) a driver intending to turn left

onto Main Harbor Island Drive can see that the right turn is "wide and sweeping"; (6)

there are trees in the approach to Main Harbor Island Drive obstructing a driver's view to

the left; and (7) there is a 35-miles-per-hour sign on South Harbor Island Drive before the

T-intersection.

Plaintiffs' counsel also displayed and discussed photographs of the relevant area.

These photographs and counsels' statements showed that: (1) the left turn lanes on South

Harbor Island Drive are each painted with large left turn arrows that begin approximately

several hundred feet in advance of the intersection; (2) the roadway is painted with large

"SIGNAL AHEAD" advisories, one in each lane; (3) the two left turn lanes are separated

by a painted white line that continues into the left turn (a portion of which may have been

"scuffed out" at the time of the accident); (4) the elevated traffic signal is located on the

bay side of the T-intersection and has three lights facing the intersection; (5) the traffic

signal contains arrows reflecting that vehicles in the two left southbound lanes are

required to turn left and prohibiting U-turns; and (6) the intersection has standard lighting

at night.

Relying on his statements and the photographs, plaintiffs' counsel stated: "So you

have a combination of the physical configuration of the roadway and these deceiving

cues, especially at night, in the absence of a background, and there are no warning signs

telling a reasonable driver to reduce their speed in half to safely make that turn, or telling

21 a driver that the road ends abruptly in a 90-degree turn, rather than in a wide curve, which

the ambiguous or deceiving cues indicate. [¶] . . . Our traffic engineer [Krueper] will

testify that warning signs are necessary to alert a reasonable driver of the necessity to

reduce their speed and that a sharp turn is coming which would not be apparent or

anticipated by a reasonable driver." Counsel also asserted: "The immunity of section

830.8 . . . does not apply because the warning signs were necessary to alert an

approaching motorist of a dangerous condition, especially at night, that would not be . . .

readily apparent to, or anticipated by, a careful motorist. The standard of care and good

engineering judgment required the placement of the [warning] signs . . . . So immunity of

[section] 830.8, therefore, does not apply."

E. Analysis

The record before us—including counsel's opening statement and the documents

and arguments relied upon by plaintiffs' counsel and the court—makes clear that

plaintiffs cannot overcome the section 830.8 sign immunity defense. Specifically, there

is no evidence the accident was caused by a dangerous condition that "would not be

reasonably apparent to, and would not have been anticipated by, a person exercising due

care." (§ 830.8.) Although plaintiffs' counsel asserted during opening statement (and

Krueper opined) that the "sharp" left turn would not be anticipated by a reasonable driver,

plaintiffs' evidence defeats that claim. Based on the photographs showing the signal,

signs, and markings existing on the night of the accident, there is no question but that a

reasonable driver would understand the need to turn left at the T-intersection. It is

undisputed that Margaret was in the left-turn lane and was beginning to turn left when the

22 vehicle instead veered straight over the grass and into the bay. There were multiple

advisories—including large pavement markings and a signal light with a left turn

arrow—about the need for a driver in the left two lanes to turn left. Given these

advisories, the requirement that a driver was required to turn left at this intersection

cannot be considered a concealed danger. Similarly, the fact that the turn was at a 90-

degree angle is not a hidden or concealed danger. A 90-degree turn is not an unusual or

unique circumstance. The fact that the right lane had a wide turn or that there was a very

slight curve at the inception of the left turn does not logically show a hidden danger.

These circumstances are materially different from those in Anderson v. City of

Thousand Oaks, supra, 65 Cal.App.3d 82, relied upon by plaintiffs. In Anderson, a road

with a 65-miles-per-hour speed limit abruptly curved in a 65-degree arc. (Id. at pp. 86,

93.) A driver and passenger were killed when the driver failed to negotiate this unmarked

curve. At the time of the accident, the road had been open for only one month, and there

were no signs or roadway striping of any kind to warn drivers of the upcoming hidden

curve. (Id. at p. 86.) The Court of Appeal found there were triable factual issues on the

section 830.8 defense, observing that the circumstances of the unmarked curve essentially

"constitute[ed] a trap to the motorist." (Id. at p. 93.)

Unlike in Anderson, the left turn here was not hidden or concealed or unexpected.

Any reasonably careful driver in the left two lanes would know from the highway

markings and the signal left-turn indicator light and the left-turn sign above the traffic

signal that there was a left turn and generally such turns are 90 degrees. In Anderson, the

road suddenly curved with no signal or marking or sign. Here, the driver was in a left

23 turn lane and was informed that the road turned left and that he or she was required to

make a left turn in that lane.

Plaintiffs argue the nighttime photographs show, and their expert's opinion

supports, that a driver would not have necessarily understood this was a T-intersection

and that the bay was on the other side of the intersection. However, even assuming it

would be difficult for a driver to see the water or fully comprehend that this is a T-

intersection, it is undisputed that Margaret was in the left lane and that the existing signs

informed her she must turn left. There were no facts in the case showing that a

reasonable person in the left turn lane would believe he or she was entitled to go straight

from the left turn lane. A reasonable person would either see or appreciate the danger of

ignoring the signs and driving straight from the left turning lane. In designing public

roads and determining whether to post warning signs, a public entity is permitted to

expect that individuals will act with due care. (§ 830.8; see Fredette v. City of Long

Beach (1986) 187 Cal.App.3d 122, 131-132.)

In seeking to avoid the section 830.8 bar, plaintiffs rely on Krueper's deposition

testimony and declaration (submitted in connection with the earlier summary judgment

proceedings) wherein he opines that there was "insufficient guidance" for a driver to

understand the need to slow down from the 35 miles per hour speed limit to safely make

the "sharp" left turn. These opinions are unhelpful regarding the legal issue before us.

The Legislature has decided that a public entity is absolutely immune from accidents

resulting from the entity's failure to post warning signs unless there is a hidden danger

that would not be understood or anticipated by a person exercising due care. (§ 830.8.)

24 Krueper did not identify any hidden or concealed conditions. Instead, Krueper

specifically acknowledged that the design of the roadway and the turn were appropriate,

and stated only that additional warning signs should have been provided to assist the

driver in safely making the left turn. This opinion does not reveal a hidden danger.

Moreover, to the extent Krueper's opinions could be interpreted as suggesting a

concealed, dangerous condition, he did not articulate any reasonable factual basis for this

opinion. An "expert opinion may not be based on assumptions of fact that

are . . . speculative or conjectural, for then the opinion has no evidentiary value and does

not assist the trier of fact." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th

493, 510.)

The undisputed record shows that neither the fact of the left turn, nor the angle of

the left turn, was hidden from a reasonable driver. Even if a driver could have reasonably

believed the left hand turn lane was wider than it was, this discrepancy does not

constitute a hidden dangerous condition. "[T]he simple absence of a warning sign cannot

create liability unless there is a hidden dangerous condition." (Weinstein v. Department

of Transportation (2006) 139 Cal.App.4th 52, 61.)

Plaintiffs argue that because "section 830.8 was not a basis for the Port's motion

for nonsuit," the Port cannot prevail on this theory on appeal. However, on our review of

the opening statement, we are satisfied that plaintiffs' counsel understood the need to

address the section 830.8 immunity issue and that plaintiffs had the opportunity to fully

state the evidence that would show the immunity did not apply. Moreover, plaintiffs

have not identified any facts in their appellate briefs showing a basis for concluding the

25 case falls outside the section 830.8 immunity statute. Under these circumstances, it is

appropriate for this court to decide the appeal based on section 830.8. (See John Norton

Farms, Inc. v. Todagco, supra, 124 Cal.App.3d at p. 161.)

Because the nonsuit and judgment must be affirmed on the section 830.8

immunity statute, we do not address the parties' contentions regarding the design

immunity statute (§ 830.6), and we deny the related judicial notice motion filed by the

Port.

DISPOSITION

Judgment affirmed. The parties to bear their own costs.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

MCINTYRE, J.

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