Filed 12/22/17 Leyva v. City of Yucaipa CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of San Bernardino, Pamela P. King, Judge. Affirmed.

Law Offices of Sandra L. Noël and Sandra L. Noël; Law Offices of Jeremy J. Waitman and Jeremy J. Waitman, for Plaintiff and Appellant.

Pyka Lenhardt Schnaider Dawkins and A.J. Pyka for Defendant and Respondent.

Jordan C. Leyva was traveling southbound on his motorcycle and collided with Richard William Crawford, Jr.’s, truck in a traffic intersection located in the City of Yucaipa (City). Leyva filed a lawsuit against the City, alleging the intersection was a dangerous condition and was negligently maintained. After a bench trial, the court concluded the City was immune from liability pursuant to Government Code section 830.6 (all further statutory references are to the Government Code). Leyva appeals from the judgment, arguing the City lost the defense of design immunity through changed conditions. The contention lacks merit, and we affirm the judgment.

FACTS

In October 2009, Leyva was on his Suzuki Sport motorcycle traveling southbound on Oak Glen Road, approaching Avenue E. At the same time, Crawford was driving his truck facing northbound on Oak Glen Road in the left-hand turn lane. He was waiting for traffic to clear so he could turn westbound on to Avenue E. The light turned yellow, and he began his left-hand turn. Simultaneously, Leyva drove into the intersection and collided with the right rear side of Crawford’s truck. Leyva sustained substantial injuries.

Leyva filed a lawsuit alleging the City was liable for negligently maintaining property that was in a dangerous condition. Leyva alleged that while he was in the hospital an officer with the San Bernardino County Sheriff’s Office said the intersection was dangerous, and he was aware of 16 accidents caused by the poor design. The officer said he planned to recommend the City correct and improve the traffic control lights.

The City answered the complaint and filed a motion for summary judgment. Our record does not contain a copy of the motion, the opposition, or any supporting documents. The court’s order denying the motion does not include the trial court’s legal reasoning in making the ruling.

Before trial, the City made a motion in limine to exclude evidence of dissimilar accidents. Leyva opposed the motion. Our record does not contain a copy of the court’s ruling on this motion. However, the trial court’s final judgment contains a footnote that refers to its denial of this motion in limine.

The parties agreed to a bench trial and submitted trial briefs. Before summarizing the briefing, we will take a moment to discuss the California Manual of Uniform Traffic Control Devices (MUTCD) and the concept of “warrants” because both parties and the trial court refer to them extensively. The MUTCD specifies nine traffic control needs studies, known as warrants. (MUTCD, § 4C.01 available at mutcd.fhwa.dot.gov/htm/200...rt4/part4c.htm#section4C01 [as of Dec. 13, 2017].) A warrant is a condition at an intersection that may justify installation of a new traffic control signal. (Ibid.) Thus, a “warrant study” refers to “[t]he investigation of the need for a traffic control signal [and] shall include an analysis of factors related to the existing operation and safety at the study location and the potential to improve those conditions . . . .” (Ibid.) The warrants relate to the number of vehicles entering the intersection, pedestrian volume, accident history, etc. The MUTCD provides, “The satisfaction of a traffic signal warrant or warrants shall not in itself require the installation of a traffic control signal.” (Ibid.)

Leyva’s trial brief stated he intended to provide testimony from two professional civil engineers, citizens, law enforcement officers, the City Council, and the City’s civil engineering firm, Hartzog and Craybill, Inc. (Hartzog). Leyva maintained he was injured because the intersection did “not [have] proper and adequate traffic controlled lights.” He explained Crawford, traveling northbound on Oak Glen Road, failed to yield to opposing traffic and the collision would not have occurred if the intersection had a “separate dedicated left hand turn directional signals requiring traffic” to stop at the intersection.

Leyva stated that after the City widened Oak Glen Road north of the intersection, the City’s engineer, Fermin Preciado, received complaints from citizens. In 2011, City Council member, Denise Hoyt, asked for a warrant study. In 2013, Hartzog’s engineer, Gerald Stock, submitted a warrant analysis of the intersection. Leyva claimed Stock would testify about the number of accidents involving left turn movements and the basis for his recommendation that the City install a left turn signal. In October 2013, the City installed a designated left turn signal.

The City’s trial brief argued a negligent driver caused Leyva’s injuries and the City was immune from liability. It noted the experts agreed the City obtained immunity in 1998 when the City approved the original design of the intersection. It stated none of the relevant criteria set forth in the MUTCD were met. Specifically, the MUTCD’s guideline for new signals was five accidents per year involving left turning traffic. At the intersection in question, there were “only five accidents in the entire decade prior” to Leyva’s collision.

The trial court issued a nine-page ruling. It stated the issue in the case was limited to whether the City lost its “‘design immunity of the intersection of Oak Glen Road and Avenue E, such that the intersection is now a dangerous condition.’” The court noted Leyva’s argument centered on the City’s decision in 2006 to widen Oak Glen Road in an area North of Avenue E. The court acknowledged Leyva’s trial brief made the following argument: “‘[It] was a physical change that resulted in a dangerous condition due to horizontal and vertical curvatures that created sight restrictions. . . . [T]hese sight restrictions coupled with the failure to install the protected left turn signal resulted in a dangerous condition at the intersection of Oak Glen Road and Avenue E. This is underscored by the number of left turn movement accidents that grew exponentially. For instance according to exhibits 13 and 266, between the years 2000 and 2006, there were on average 1.28 accidents a year. Beginning in 2007, after the completion of the 2006 widening project, the number of accidents grew to one in 2007; three in 2008; and five in 2009. Given that the traffic volume did not increase significantly, these numbers are of greater importance.’” (Fn. omitted.)

After discussing the relevant legal authority, the court provided a summary of the evidence presented on the issue. The trial court stated Leyva’s “traffic engineer, Dale Dunlap, testified at trial that in his opinion the original 1998 plan and design for the signalization of the intersection ‘was reasonable and complied with engineering standards.’ [Citation.] He also testified the alignment of Oak Glen Road ha[d] not changed since when the intersection was signalized. [Citation.] Oak Glen Road north of Avenue E was simply widened from two lanes to four lanes. [Citation.] [Leyva’s] traffic engineer specifically did not take issue with the decision to not install a protected left turn lane despite his opinion that the alignment of the roadway affected visibility of southbound vehicles to left turning vehicles on Oak Glen Road, turning westbound onto Avenue E. He opined that based on the growth of the city, the collision data starting to climb, along with the alignment issues, ‘it would have been wise in 2008 [or] 2009 to put the head in at that time.’ [Citation.] [¶] However, after reviewing the accident history at the intersection during his testimony at trial, . . . Dunlap admitted, ‘you look at the accidents, and it’s not meeting the MUTCD threshold of five similar accidents in 12 months which is kind of where the line is drawn in the sand but it’s starting to approach that.’ [Citation.] He described the standard of five similar accidents in [12] months as ‘a threshold that’s used throughout engineering. It is kind of a rule of thumb this is what you need to look at.’ [Citation.] Indeed, he testified that ‘certain agencies actually start you investigating if you reach the fifth accident.’ [Citation.] Mr. Dunlap agreed that the accident history bears out that northbound-left turning vehicles are not really having a problem. [Citation.]”

The court quoted from the relevant sections of the MUTCD, listing what conditions should be considered when deciding to install “left turn phases.” “Looking specifically at the three objective guidelines for when protected left turn phases should be considered, collisions, delay and volume, [Leyva’s] expert agreed that none of the factors were satisfied. [Citation.] He also testified that even if all three guidelines were met and installation of a protected left turn was considered, the city engineer may well determine for other reasons that installation of a phased turn was not advisable. [Citation.] The only remaining guideline, entitled ‘Miscellaneous,’ addresses impaired sight distance due to horizontal or vertical curvature, or where there are a large percentage of buses and trucks. There was no evidence that a high volume of buses or trucks were an issue at the intersection in question, according to . . . Dunlap. [Citation.] [Leyva’s] traffic engineer opined that coming from a 50 mile per hour roadway, such as Oak Glen Road, the driver needs around 425 feet sight distance. [Citation.] [¶] While . . . Dunlap testified that the alignment of the roadway did not change since 1998 when signalization of the intersection was ‘reasonably approved,’ he opined that the alignment in conjunction with the increased volume of traffic caused the roadway to become dangerous sometime in 2008 or 2009. He opined [the City] would have had notice of its dangerous nature such that something needed to be done ‘as earliest as 2008, maybe early 2009.’ [Citation.]”

The court next discussed the expert qualifications of and the testimony given by the City’s traffic engineer, David Royer. “[Royer] testified that the visibility for left turning, [northbound] vehicles on Oak Glen Road, meets the American Association of State Highways Traffic Organization [AASHTO] standards. He has been a traffic engineer for in excess of fifty years. He instructs city, county and state traffic personnel on the provisions of the [MUTCD] at University of California, Berkeley. He also sits on the National Committee for the Federal MUTCD with which California complies. His credentials lent considerable credibility to his testimony.”

The court noted Royer opined the northbound left turning vehicles did not come close to satisfying any of the MUTCD conditions or state warrants. It stated the following: “Of all the guidelines, the most important consideration is the collision count because it is the real indication of the safety of the intersection. For purposes of calculating the number of collisions, [Royer] testified that the language, ‘for a particular left turn movement’ means what it says. Traffic engineers are to consider the accidents involving left turning traffic for [northbound] vehicles only, not combine [northbound] turning vehicles with turning vehicles. Doing so, he testified that the [Statewide Integrated Traffic Survey (SWITRS)[1]] report reflects there were five [northbound], left turning accidents from 2002 up to the time of [Leyva’s] accident, over eight years. [¶] Based on the warrant analysis conducted by Hartzog . . . in December of 2012, the left turn delay calculations were not met for left turning vehicles in any of the four directions of the intersection. The lowest figures were relative to [northbound], left turning vehicles. Royer testified that the traffic volume of Oak Glen Road at the worst location is half of the capacity for the roadway; the traffic counts reflect relative stability in terms of volume. [¶] The Hartzog . . . analysis assessed the intersection utilizing the MUTCD guidelines, the Highway Capacity Manual criteria, and the Institute of Traffic Engineers, Traffic Engineering Handbook guidelines. Their analysis revealed that none of the criteria they looked to was met. The only direction, for which some of the criteria were close to being met, was for [southbound], left turning vehicles. Ultimately, [Hartzog’s] analysis ‘recommended’ installation of protected left turn phases for [northbound] and [southbound] Oak Glen Road, due to the limited cost, when compared with the combination of collision history, roadway speeds[,] and roadway configuration.”

The court made the following legal conclusion: “[Leyva] ‘failed to produce evidence that the condition of the roadway at the accident location was inconsistent with state standards or would have rendered it unreasonable for a public entity to approve the design of the roadway.’ [Citation.] Even if the widening of Oak Glen Road north of Avenue E, constituted ‘changed conditions’ . . . there was no showing that the roadway failed to meet state standards. As well, it is difficult to disregard [Leyva’s] own expert testimony that he does not argue with the [City’s] decision to not install protected left turn phases for [northbound] and [southbound] traffic at the time of the 2006 widening project. Even if the MUTCD guidelines concerning collisions are construed to include [northbound] and [southbound] left turning vehicle accidents, which clearly appears inconsistent with the plain language of the provision, the state standards are not met until the occurrence of [Leyva’s] accident. [¶] According to case law, meeting state warrants constitutes notice and should trigger an investigation of the advisability of a design change. Meeting state warrants does not necessarily establish that the property is a dangerous condition. More significantly, if consideration of [Leyva’s] accident is necessary to put [the City] on notice, clearly there was not ‘a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work.’

[¶] For all of the forgoing reasons, the [c]ourt finds [Leyva] failed to meet his burden of producing substantial evidence that the design of the roadway at the accident location had become dangerous due to changed physical conditions. The City . . . is immune pursuant to . . . §830.6 and is entitled to judgment.”

DISCUSSION

I. Overview of Applicable Law

A. Liability for Dangerous Conditions

“[A] public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68, fn. omitted (Cornette); Gov. Code, § 835, subd. (b).)

A “dangerous condition” is “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 condition of property is not dangerous “if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (§ 830.2.)

“‘As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts.’ [Citation.] A dangerous condition of public property can come in several forms and may be based on an ‘amalgam’ of factors. [Citation.] A dangerous condition of public property may arise from its damaged or deteriorated condition, from ‘“the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.” [Citation.]’ [Citation.]” (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069 (Salas).)

“Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion. [Citation.] ‘t is for the court to determine whether, as a matter of law, a given defect is not dangerous. This is to guarantee that cities do not become insurers against the injuries arising from trivial defects.’ [Citation.]” ([i]Salas, supra, 198 Cal.App.4th at p. 1070.)

B. Design Immunity

A public entity may avoid liability for an injury caused by a dangerous condition if it pleads and proves the affirmative defense of design immunity. (§ 830.6; Cornette, supra, 26 Cal.4th at p. 69.) “The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. [Citation.] ‘“‘[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.’” [Citation.]’ [Citation.]” (Cornette, supra, 26 Cal.4th at p. 69.)

“[A] public entity claiming design immunity must establish 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. [Citations.]” (Cornette, supra, 26 Cal.4th at p. 69; § 830.6.)[2] “Design immunity is an affirmative defense . . . . The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. [Citation.] The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value, which reasonably inspires confidence. [Citation.] We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted. [Citations.]” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940, fn. omitted (Grenier).)

Thus, with respect to the third element of design immunity, “substantial evidence of reasonableness of design, requires only substantial evidence.” (Grenier, supra, 57 Cal.App.4th at p. 941.) “‘[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.’ [Citation.] Generally, a civil engineer’s opinion regarding reasonableness is substantial evidence sufficient to satisfy this element. [Citation.] Approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness. [Citation.] That a plaintiff’s expert may disagree does not create a triable issue of fact. [Citations.]” (Ibid.)

C. Loss of Design Immunity

“Design immunity does not necessarily continue in perpetuity.” (Cornette, supra, 26 Cal.4th at p. 66.) “[W]here a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6.” (Baldwin v. State of California (1972) 6 Cal.3d 424, 438, fn. omitted, superseded by statute on another ground as stated in Cornette, supra, 26 Cal.4th at pp. 70-71.)

Plaintiff has the burden of demonstrating loss of design immunity and “must establish the following three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Cornette, supra, 26 Cal.4th at p. 72.) “[W]here triable issues of material fact are presented . . . a plaintiff has a right to a jury trial as to the issues involved in loss of design immunity.” (Id. at p. 67.)

Here, the parties agreed to a bench trial. Generally, when “reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court’s findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings. [Citation.]” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.)

II. Analysis

At trial, Leyva did not dispute the City acquired design immunity in 1998. He and his expert agreed the original 1998 plan and design of the intersection was reasonable. Experts for both sides testified the 1998 design complied with engineering standards. Indeed, Leyva’s trial brief clarified “[t]he issue in this case was whether the [City had] lost their design immunity” due to a change in physical conditions. The court’s ruling also reflects this was the only issue to be decided. Accordingly, we limit our analysis in this appeal to reviewing the court’s decision, i.e., did Leyva fail to meet his burden of proving the City lost its immunity after widening one of the roads leading to the intersection?

On appeal, Leyva maintains there are five reasons why the court’s ruling was incorrect: (1) the court “completely disregarded the overwhelming evidence” that widening one of the roads was a physical change that created a dangerous condition at the intersection; (2) the court improperly focused on warrant requirements of prior accidents at the intersection; (3) the court erred in not considering the total number of accidents occurring at the intersections in both directions; (4) if the City lost its design immunity, the court erred in concluding the claim failed under Government Code section 830.4 [immunity related to traffic control signals]; and (5) the City had notice of the dangerous condition at the time of the accident. Only the first three contentions challenge the trial court’s ruling. We need not reach the last two arguments, because they are premised on the conclusion the City lost its design immunity. As we will explain below, we agree with the trial court’s decision Leyva failed to meet his burden of proving the City lost its defense of design immunity.

A. Court’s Review of the Evidence

Leyva’s first argument is the court “completely disregarded” overwhelming evidence there was a physical change that created a dangerous condition at the intersection. We disagree.

The court concluded Leyva failed his burden to produce sufficient evidence the 2006 road widening created a dangerous condition. Its lengthy written ruling reflects it considered the expert testimony from both sides, the MUTCD guidelines, and the 2012 warrant analysis report. The court cited to evidence, including testimony by Leyva’s expert that the 2006 changed condition of the intersection was consistent with state standards. It commented the City’s expert’s impressive credentials “lent considerable credibility to his testimony.”

Leyva does not comment on the evidence the court cited to support its ruling. And, Leyva does not explain what specific evidence the court “completely disregarded.” Instead, he provides us with a 17-page summary of only favorable evidence.

He spends several pages discussing evidence supporting the conclusion that there was a physical change to the roadway. Woven into this lengthy discussion, is the argument that the horizontal and vertical curvature of the roadway north of the intersection created sight impairments for drivers facing northbound inside the intersection who wish to make a left turn. However, the court’s written ruling shows it did not disregard any of this evidence.

The court specifically referred to Dunlap’s testimony about the physical changes and how the alignment issues “affected visibility of southbound vehicles” to vehicles facing northbound on Oak Glen Road, turning westbound onto Avenue E. The court’s ruling also focused on evidence the alignment issues were present when signals were first placed at the intersection in 1998. The court found significant that Dunlap did not believe a left-hand turn phasing signal was required in 1998 or necessarily in 2006 when Oak Glen Road was widened north of the intersection. The court recognized Dunlap opined the left turn signal was likely needed by 2008 or 2009 due to numerous factors such as population growth and collision data. The court noted Dunlap’s opinion was contradicted by Royer’s opinion and information gathered for the 2012 warrant analysis report. The court, as the trier of fact, could reasonably find Royer’s opinion more persuasive. Contrary to Leyva’s contention, making a credibility call, rejecting one expert’s opinion in favor of another, is not the same as arbitrarily “disregarding” the evidence.

However, proceeding on the assumption the trial court unfairly ignored Dunlap’s opinion, Leyva devoted pages 16 to 24 of his opening brief to a lengthy discussion of the evidence Dunlap relied upon in forming his opinion. Specifically, Leyva described the six factors supporting Dunlap’s opinion and where the evidence reinforcing those points can be located in the record. We found nothing in this lengthy summary of only favorable evidence to suggest there was reason to question the credibility of Royer’s contrary opinion. Indeed, Leyva does not offer any reason for this court to conclude Royer’s testimony was unreliable or improperly relied upon by the trial court. Rather, it appears he is simply asking this court to review the evidence in the first instance and conclude Dunlap’s opinion was more persuasive than Royer’s.

Leyva fails to appreciate we do not retry cases on appeal or take a de novo look at the evidence. “Where there is conflicting evidence, or evidence susceptible of conflicting inferences, the general rule is not to disturb the judgment. All presumptions are in favor of the judgment. Trial judges and juries are the exclusive judges of credibility and may disbelieve any witness. Trial courts are designed and responsible for determining facts. Appellate courts are designed to review errors of law. Economy, efficiency, and practicality require recognition of those specialized roles. Appellate courts can’t retry all cases and shouldn’t try. There is reason to question whether the results would be better if reviewing courts redecided all cases. [Citation.]” (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412 (Rivard).) “Dozens, if not hundreds, of cases recite that an appellate court does not weigh the evidence.” (Id. at p. 413.)

Moreover, “‘[A]n appellant who challenges a factual determination in the trial court�"a jury verdict, or a finding by the judge in a nonjury trial�"must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.’ [Citations.]” (Chicago Title Ins. Co. v. AMZ Ins. Services Inc. (2010) 188 Cal.App.4th 401, 415 (Chicago Title); see McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 [“If one is going to make a ‘the-facts-compel-that-I-win-as-a-matter-of-law’ argument, one’s brief must fairly state all the evidence”].) “If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; . . . Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 563 [“plaintiff has forfeited [the substantial evidence] argument because he has cited only the evidence favorable to him”].)” (Chicago Title, supra, 188 Cal.App.4th at pp. 415-416.)

We conclude Leyva’s recitation of only the evidence supporting Dunlap’s expert opinion the intersection became dangerous in 2008 or 2009 was insufficient to justify reversal of the trial court’s findings. The trial court’s lengthy ruling clearly indicates it considered Leyva’s evidence and determined it was not sufficient to refute the City’s contrary evidence. We find no reason to disturb the court’s credibility determination or ruling on the issue.

B. The Warrant Requirement of Prior Accidents

Leyva also contends the trial court improperly focused on warrant requirements of prior accidents at the intersection. We find the argument confusing because Leyva cites to the same MUTCD warrant requirement in arguing the physical change to the intersection created a dangerous condition. Moreover, he provides no legal authority to support the theory the court should not have considered the MUTCD guidelines in this case.

In addition, Leyva’s argument is based on the trial court’s commentary during a hearing, not anything written in a tentative or final judgment. Specifically, Leyva cites to and is critical of the trial court’s statements following closing argument. The court indicated it wanted to hold a separate hearing to review the facts and discuss the applicable case law with counsel before making its final ruling.

At the hearing, the court stated its understanding of the case law was that a city must investigate if an intersection is dangerous “if it meets warrants.” It noted the Hartzog 2013 report stated none of the warrants were met, but nevertheless recommended installation of a protected signal. The court concluded if none of the warrants were met, Leyva could not meet his burden of proving the road condition was dangerous. In response to this statement, Leyva’s counsel replied the evidence proved the intersection had visible sight impairments due to road curvatures. Counsel pointed out that one of the MUTCD’s warrants related to visibility restrictions due to horizontal or vertical curvatures. The court asked whether there was any reason to suspect that if a warrant analysis had been performed in 2006, it would have turned up something different from Hartzog’s investigation and warrant report prepared in 2013. In other words, if none of the warrants were met in 2013, why would the City have notice of a dangerous road condition six years earlier in 2006? Leyva’s counsel’s response was to dispute the credibility of Hartzog’s report, arguing it did not include all the accidents that took place in 2009 and 2010. Counsel also argued a city can put in a left turn phasing signal if “good judgment” warrants one, regardless of the absence of warrants. The court and counsel then moved on to discuss other issues in the case.

We conclude the court’s comments were entirely appropriate when considered in context. In addition, we conclude the warrant requirement relating to the number of prior accidents is a relevant factor to consider when determining whether a physical change created a dangerous condition. As properly noted in the trial court’s final ruling, there were several different warrants relevant to the intersection in this case. Based on its review of the evidence, the court concluded there was an insufficient showing that the roadway failed to meet state standards. We find no reason to disturb the trial court’s ruling.

C. Evidentiary Ruling

Leyva argued the court erred by “limiting the number of accidents” within a 12-month period to only left turns from northbound traffic. He argues the court should have considered turns from both northbound and southbound traffic.

We begin by clarifying that contrary to Leyva’s contention, the court never limited evidence of the number of accidents occurring in both directions. As noted in Leyva’s argument, Hartzog’s report considered both directions. Dunlap and Preciado opined that an engineer undertaking a warrant analysis for a left turn signal should consider both directions.

Thus, the issue presented is not an evidentiary one, but rather involves review of a legal ruling. Should the MUTCD warrant guidelines relating to the installation of a left turn signal be construed to include past left turn collisions from both directions? The court determined the plain language of the MUTCD provision contemplated only one direction. Leyva argues this was incorrect. He does not cite to any legal authority to support his theory. He does not offer statutory analysis of the provision. Rather, he cites to testimony from various experts on the proper method of investigating warrants. He notes Royer was the only expert who opined an engineer conducting a warrant study should only consider northbound left turns in deciding if the intersection presented a dangerous condition.

We need not reach the legal merits of the issue because the trial court’s ruling shows it considered collisions in both directions, despite its legal determination only one direction should be relevant. The court stated, “Even if the MUTCD guidelines concerning collisions are construed to include [northbound] and [southbound] left turning vehicle accidents, which clearly appears inconsistent with the plain language of the provision, the state standards are not met until the occurrence of [Leyva’s] accident. [¶] According to case law, meeting state warrants constitutes notice and should trigger an investigation [but] . . . does not necessarily establish that the property is a dangerous condition. More significantly, if consideration of [Leyva’s] accident . . . put [the City] on notice, clearly there was not ‘a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work.’”

Thus, the court’s ruling stands regardless of whether one or both directions is considered. Consequently, Leyva cannot prove he was prejudiced by the court’s legal determination. Absent prejudice, there would be no grounds for reversal of the judgment.

D. Remaining Arguments Premised on Loss of Design Immunity

Leyva’s remaining arguments are both premised on the conclusion he prevailed on the theory the physical change to the roadway created a dangerous condition. The two arguments are as follows: (1) if the City lost its design immunity, the court erred in concluding the claim also failed under Government Code section 830.4; and (2) the City had adequate notice of the dangerous condition at the time of the accident. Based on our ruling that the City did not lose design immunity, we need not address the court’s alternate immunity theory for why the claim failed. With respect to the second argument, any evidence of notice relates to the second necessary element relevant to proving loss of design immunity. (Cornette, supra, 26 Cal.4th at p. 72.) If Leyva cannot prove the first element, there is no need to consider the second element (notice of the dangerous condition).

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.