City of Santa Monica v. Superior Court

Filed 10/12/07 City of Santa Monica v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDINGS in mandate. Valerie Lynn Baker, Judge. Petition granted in part and denied in part.

Horvitz & Levy, Mitchell C. Tilner, Peter Abrahams; Lynberg & Watkins, Dana A. Fox, Phillip M. Hayes; and Marsha Jones Moutrie, City Attorney, for Petitioner.

No appearance for Respondent.

Rose, Klein & Marisas, Barry I. Goldman; Panish Shea & Boyle, Brian J. Panish; Moreno, Becerra, Guerrero & Casillas, Gregory W. Moreno, Christopher F. Moreno; Greene, Broillet & Wheeler, Timothy J. Wheeler, Geoffrey S. Wells; Law Offices of Michael J. Piuze, Michael J. Piuze, Geraldine Weiss; Rosenberg, Mendlin & Rosen, Joyce S. Mendlin; Jacobs, Jacobs & Eisfelder, Stanley K. Jacobs, Thomas F. Borcher; Robins, Kaplan, Miller & Ciresi, Steven D. Archer; Esner, Chang & Ellis, Stuart B. Esner and Gregory R. Ellis for Real Parties in Interest.

_____

The underlying consolidated action for damages for personal injuries and wrongful death arises out of an incident on the afternoon of Wednesday, July 16, 2003, when George Weller drove his automobile through the open-air pedestrian Santa Monica Farmers Market (Market) on Arizona Avenue in City of Santa Monica (City), killing or seriously injuring many people.^[1] In this proceeding, we review the trial courts July 3, 2006 order granting summary adjudication in favor of defendant City on the ground that Citys defense of design immunity defeated plaintiffs claim for dangerous condition of public property. Also before us for review is Citys petition for a writ of mandate challenging the January 19, 2007 order denying Citys summary judgment motion.

We conclude that the evidence in the record gives rise to reasonable conflicting inferences as to whether the one-page sketch (exhibit 6 to Citys summary adjudication motion, attached to this opinion as appen. A, post) was the traffic control plan for the Market that was approved by Citys traffic engineer in 1987 and which is the basis of Citys design immunity defense. Because a reasonable inference exists that exhibit 6 does not constitute Citys approved plan or design under the design immunity defense, the order granting Citys summary adjudication motion cannot stand. Accordingly, we will direct the trial court to vacate the July 3, 2006 order. Without the July 3, 2006 order, there is no basis for summary judgment, and we thus deny Citys challenge to the January 19, 2007 order.

BACKGROUND

A. The Complaint

The operative complaint (the revised master complaint) asserts seven causes of action: (1) a first cause of action against City labeled dangerous condition of public property under Government Code section 835;^[2](2) a second cause of action labeled negligence against Bayside District Corporation, Southland Farmers Market Association, and Step Up on Second Street, alleged independent contractors of City; (3) a third cause of action against City labeled vicarious liability under various provisions of the Government Code; (4) a fourth cause of action against Weller for negligence; (5) a fifth cause of action against all defendants labeled loss of consortium; (6) a sixth cause of action against all defendants labeled wrongful death; and (7) a seventh cause of action against all defendants labeled negligence bystander theory.

The first cause of action alleged that the Market constituted a dangerous condition because, among other things, it was a highly congested pedestrian only weekly open air [market] along, on and in the public roadways of Arizona Avenue which was open to motor vehicle traffic, without sufficient barriers or supervision to prevent motor vehicle traffic from entering onto the aforesaid roadways, despite large numbers of pedestrians being encouraged, permitted and allowed to congregate along, on and in the public roadways of Arizona Avenue. City allegedly negligently inspected, designed, maintained, regulated, constructed and supervised the public roadways at or near the Market. In particular, City allegedly (1) maintained and designed a public shopping area for pedestrians only along a public roadway which did not block automobile traffic and was unsafe for pedestrian travel; (2) failed to install adequate bollards, portable barriers, barricades or other blocking devices; and (3) failed to provide adequate signage or warnings for both drivers of automobiles and pedestrians.

The third cause of action incorporated the allegations of the first cause of action and alleged that City was vicariously liable for the tortious acts and omissions of its independent contractors in negligently controlling, operating, managing, inspecting, designing, regulating, constructing and supervising the Market.

B. Citys Motion for Summary Adjudication

City answered the complaint, asserting, among other defenses, the affirmative defense of design immunity pursuant to section 830.6.^[3]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. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69 (Cornette).) 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. (Id. at p. 66.)

City thereafter moved for summary adjudication of plaintiffs first cause of action on the grounds that the Market was not in a dangerous condition on the date of the Weller incident and that City was immune from liability under section 830.6. The motion was supported primarily by the March 2006 declarations of Laura Avery and Ronald Fuchiwaki.^[4]

In her declaration, Avery stated that in 1982 she was the Market manager and in 1999 she became the Market supervisor, which position she still retained. The Market operated every Wednesday beginning in 1981 and then consisted of portable tent-style booths against curbs. In July 2003, the Market was located on Arizona Avenue (running east and west), between Fourth Street on the east and Ocean Avenue on the west, a distance of about 800 feet, and on a portion of Second Street, immediately to the north and south of Arizona Avenue. A 12-foot wide strip running down the middle of Arizona Avenue was open to pedestrians. The Market operated between 9:00 a.m. and 2:00 p.m., and the Market area was closed to vehicular traffic from 8:00 a.m. until 3:00 p.m. The Market was intersected by the Third Street Promenade (a pedestrian promenade), which permanently blocked vehicular traffic beginning in 1987.

According to Avery, beginning in 1981, barricades and signs were placed perpendicular to the center line of all four of the street boundaries of the Market. After 1987, the barricades consisted of 10-foot long orange and white striped parade barricades suspended between two A-frame sawhorses and two folding barricades. A Road Closed warning sign was attached to one of the folding barricades. In addition, an orange and black Caltrans C-19 sign stating Road Closed Ahead was placed in the center of each street at the cross street nearest the Market boundary. The same configuration of barricades and signs was used in the Market from 1987 to the date of the incident in July 2003. Attached to Averys declaration was exhibit 6 (see appen. A, post), which she claimed was the one page design for the Citys traffic control plan for the . . . Market. Exhibit 6 was prepared and implemented in 1987, and reflects the traffic control plan used at every Wednesday Market from the date of its implementation in 1987 through the incident of July 16, 2003.

Fuchiwaki declared that in 1979 he became a registered professional traffic engineer, and in 1982 he became a registered professional civil engineer in California. He had extensive experience with, and knowledge of, the safety and operational policies, standards and practices established by the various federal and state agencies related to traffic control. From 1987 through 2000, he was employed by City as its Parking and Traffic Engineer, responsible for both in-house traffic engineering and field operations. From 2000 through February 2001, Fuchiwaki was Citys traffic operations manager responsible for field operations.

Fuchiwaki stated that in 1987, he was vested with discretionary authority pursuant to the Santa Monica Municipal Code to approve traffic control plans for the City, including the traffic control plan used in the . . . Market. He exercised this authority when, in 1987, he told Laura Avery how to draw the traffic control plan represented in Exhibit 6. The design met with [his] approval. He directed the preparation of the traffic control plan represented in Exhibit 6, reviewed the plan, and, pursuant to [his] extensive experience with and knowledge of the applicable Federal standards for temporary traffic controls set forth in the Manual on Uniform Traffic Control Devices (MUTCD), the State standards for temporary traffic controls set forth in the Caltrans Traffic Manual (CTM), as well as the guidelines in the local WATCH manual, [he] determined the traffic control plan was reasonable and approved it. According to Fuchiwaki, exhibit 6 identifies the boundaries of the . . . Market and specifies the type and location of the placement of barricades and signs at each of the four street boundaries of the Wednesday Market.

In opposition to the motion, plaintiffs offered evidence, including excerpts from the November 2005 deposition of Avery and the April 2006 deposition of Fuchiwaki, and argued that triable issues of fact existed with respect to the design immunity defense. Plaintiffs contended (1) that exhibit 6 did not constitute a traffic control plan because it lacked any indication of approval by the traffic engineer (such as the engineers name and stamp and date of approval), and it lacked items such as traffic lights, traffic lanes, traffic control signs, and the location of the booths and parking spaces; (2) that neither Avery nor Fuchiwaki declared that exhibit 6 was the traffic control plan that was approved by City; (3) that triable issues existed as to whether exhibit 6 was the approved plan because Fuchiwaki admitted in his deposition testimony that he did not know whether exhibit 6 was the same document that Avery showed him for his approval; (4) that triable issues existed as to whether the parade barricades were part of the traffic control plan because exhibit 6 failed to mention parade barricades; and (5) that changed conditions in and around the Market precluded application of the design immunity defense.

In his deposition taken after his March 2006 declaration, Fuchiwaki testified that he began employment with City in 1987. Early in his employment with City, Avery contacted him about expanding the existing Market and about recommendations for appropriate traffic control for the expansion. Fuchiwaki and Avery walked the boundaries of the Market and he recommended the use of the standard traffic control barricades, including the parade barricade and the A frame barricade, to provide a physical and a visual barrier to indicate that the road is closed beyond that point. Fuchiwaki did not take any notes or keep records of his recommendations and he did not recall whether Avery was taking notes or making records of what he said at the Market. Sometime thereafter, Avery came to his office in City Hall and showed him a traffic control plan, which he approved. Although Fuchiwaki was unable to identify exhibit 6 as the plan that he had approved, he testified that he had never seen any other document relating to the traffic control plan for the Market and he had no reason to believe that exhibit 6 was not a correct copy of the traffic control plan given to him by Avery. He did not know, but believe[d] that Avery had prepared exhibit 6.

According to Fuchiwaki, exhibit 6 was not a traffic engineering drawing, but a traffic control plan. A traffic engineering drawing calls for the stamp of either the design engineer or another engineer involved in the design. Exhibit 6 contained neither his signature nor an engineering stamp showing that an engineer had reviewed and approved the plan. He did not recall whether the handwritten notations on exhibit 6 were on the plan shown to him by Avery and he did not know who wrote the handwritten notations on exhibit 6. Fuchiwaki admitted that before he approved the traffic control plan for the Market he did not conduct any traffic safety assessment of the Market, did not hire anyone else to do so, and did not discuss the plan with anyone else. As a traffic engineer, he was supposed to do an assessment of the possibility of a driver of a vehicle losing control and going into the Market, but he did not recall whether he made such an assessment in this case. But Fuchiwaki testified that he thought about the issue of pedestrian safety in the Market, as it was a routine factor to consider, but he could not recall his exact thoughts about it.

Fuchiwaki testified that he felt that the standard traffic control devices he discussed with Avery were adequate and that the use of bollards at the Market was not necessary.^[5]In 1987, bollards were used at the Third Street Promenade, which intersected Arizona Avenue immediately to the west of the Markets eastern boundary.

After a hearing, the court on July 3, 2006, granted Citys motion for summary adjudication on the design immunity defense, but denied the motion on the ground of lack of a dangerous condition, because the court determined that City did not meet its burden of establishing that the Market was not in a dangerous condition on the date of the incident.

On August 4, 2006, plaintiffs filed a petition for a writ of mandate. By order of August 17, 2006, the petition was summarily denied. (Supino v. Superior Court, B192821.) On October 11, 2006, our Supreme Court denied plaintiffs petition for review. (S146155.)

C. Citys Motion for Summary Judgment

In September 2006, City filed a motion for summary judgment based on four purported undisputed material facts: (1) The complaint alleged that Bayside, Southland and Step Up were independent contractors of City; (2) on July 3, 2006, the court ruled that City was immune from liability under section 830.6 on plaintiffs first cause of action for dangerous condition of public property; (3) the acts and omissions alleged against the independent contractors in the third cause of action were identical to and entirely contained in the list of acts and omissions alleged in the first cause of action; and (4) the fifth, sixth, and seventh causes of action (respectively for loss of consortium, wrongful death, and negligence-bystander theory) have no independent statutory basis and therefore cannot be brought against City. Plaintiffs opposed the motion on the ground, among others, that the design immunity defense did not negate the theory of liability based on a failure to warn of a dangerous condition where the failure to warn is an independent, concurring cause of the accident. After a hearing, the court on January 19, 2007, denied the summary judgment motion on the grounds, among others, that City did not negate each theory of liability alleged in the complaint, including the failure to warn of a dangerous condition, and City did not establish that the independent contractors duties were entirely covered by Citys traffic control plan for which City has design immunity.

D. Citys Writ Petition

City filed the instant petition for a writ of mandate, seeking to vacate the courts January 19, 2007 order denying its summary judgment motion on the ground that the previous order granting summary adjudication was dispositive of all of the claims against City and that it was entitled to summary judgment.

On June 1, 2007, we issued an order to show cause why we should not (1) direct the trial court to change its order of July 3, 2006, granting Citys motion for summary adjudication on the ground of design immunity and (2) direct the trial court to change its order of January 19, 2007, denying Citys summary judgment motion. We afforded the parties the opportunity to file briefs on the design immunity issue, which they did, and oral argument was held pursuant to the order to show cause.

As briefed by the parties, two principal issues in this proceeding are whether triable issues of fact are presented as to the first and second elements of the design immunity defense  that is the element of a causal relationship between the plan and the incident and the element of discretionary approval of the plan prior to construction. Specifically, plaintiffs contend that the evidence permits the inferences that City did not consider the design feature of a rigid physical barrier, such as a bollard, to prevent errant vehicles from entering the Market, and that there was no admissible evidence that the City actually approved the diagram [exhibit 6] proffered by the City as its traffic control plan.

DISCUSSION

A. Standard of Review

We review an order granting summary adjudication under the same principles applicable to review of a summary judgment. (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1471.) Our review of a summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) A defendant moving for summary judgment based on an affirmative defense must present evidence that supports each element of its affirmative defense. (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 12921293.) [I]f the moving papers make a prima facie showing that justifies a judgment in the defendants favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.) In determining whether the parties have met their respective burdens, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence [citations] and such inferences [citations] . . . in the light most favorable to the opposing party. (Id. at pp. 121122.)

Thus, [b]ecause a summary judgment denies the adversary party a trial, it should be granted with caution. [Citation.] Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)

B. Design Immunity

Plaintiffs contend that triable issues of fact exist as to the design immunity defense. We agree because although there are contrary reasonable inferences as to whether exhibit 6 was the plan approved by Fuchiwaki, the record permits a reasonable inference that it was not.

As stated, the public entity claiming the defense of design immunity must establish (1) a causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; and (3) substantial evidence supporting the reasonableness of the design. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939 (Grenier).) Only the first two elements are at issue here and we do not opine on the third element. The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. (Id. at p. 940.) The first element, a causal relationship between the plan and the accident, requires proof that the alleged design defect was responsible for the accident, as opposed to some other cause. (Ibid.)^[6]

The second element, discretionary approval prior to construction, simply means approval in advance of construction by the legislative body or officer exercising discretionary authority. [Citation.] A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval. [Citation.] Design immunity does not immunize decisions which were not made. [Citation.] Thus, the injury-producing feature must have been a part of the plan approved by the governmental entity. [Citation.] The immunity only applies to a design-caused accident. (Grenier, supra, 57 Cal.App.4th at pp. 940941, fn. omitted.) As noted by the court in Grenier, there is some overlap in the analysis of the elements of causal relationship and discretionary approval. But [t]he distinction is academic. If the injury-producing element was not a part of the discretionarily approved design, immunity is defeated. (Id. at p. 941, fn. 7.)

There is no requirement that the design be expressed in any particular form. The plan need only be sufficiently explicit to assure that it is understandable to the employee giving the approval. (Thomson v. City of Glendale (1976) 61 Cal.App.3d 378, 385 [shop drawing of a stairway handrail by an outside fabricator was sufficient evidence to support design immunity defense].) There is also no requirement that the public entity make a detailed showing of the factors it weighed in deciding to adopt a design. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 735 [in a freeway head-on collision, where the lack of a median barrier conformed to applicable standards, the state was not required to show the factors its engineers weighed and then rejected in deciding to design the freeway without a median barrier].)

In some instances, the omission of a design feature from a plan may indicate that the entity failed to consider that element of design, making inapplicable the design immunity defense (Cameron, supra, 7 Cal.3d at p. 326 [no design immunity where approved design of S curve on highway did not mention factor of superelevation or grade]), but where the design plan is comprehensive, it is less likely that the omission of some feature commonly associated with a roadway was not a conscious design choice. (Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 90 [Cameron distinguished; where plan omitted warning signs before curve in roadway, but detailed plan mentioned other signs, there was inference that warning signs had been considered and rejected].)

As we shall discuss, triable issues of fact exist with respect to the first two elements of the design immunity defense. Although there are contrary reasonable inferences, the record before us permits the reasonable inference that exhibit 6 was not the plan approved by Fuchiwaki. And without a determination of the features of the plan, it cannot be determined whether there was a causal relationship between the plan and plaintiffs injuries.

Avery declared that exhibit 6 was prepared and implemented in 1987, but she does not expressly assert that she showed exhibit 6 to Fuchiwaki in 1987. For his part, Fuchiwaki declared that he directed the preparation of the traffic control plan represented in Exhibit 6, and that he determined the traffic control plan was reasonable and approved it. But Fuchiwaki also did not expressly aver that exhibit 6 was indeed the traffic control plan; rather, it only represented the traffic control plan and that he approved the traffic control plan. He could not recall whether the handwritten notations on exhibit 6 were on the plan shown to him by Avery. He did not unequivocally declare that the plan which he approved in 1987 was exhibit 6. And in his deposition taken after his declaration, Fuchiwaki forthrightly admitted that he was unable to identify exhibit 6 as the traffic control plan that he had approved in 1987, although he had not seen any other document relating to the traffic control plan and he had no reason to believe that exhibit 6 was not a copy of the plan. Accordingly, the details surrounding exhibit 6 are fraught with sufficient uncertainty to raise a reasonable inference that it might not be the plan approved by Fuchiwaki.

Additional uncertainties arise as to exhibit 6 because it fails to depict any barricades, a design feature that both Avery and Fuchiwaki claimed was considered and then implemented. Fuchiwaki asserted in his declaration that exhibit 6 showed the boundaries of the Market and specified the type and location of the placement of the barricades and signs at each of the four street boundaries of the Market. Fuchiwaki testified that he recommended to Avery the use of the parade barricade and the A frame barricade. But exhibit 6 makes no mention of any barricades, although it contains references to yellow road closed signs and orange road closed ahead signs.

Because the record permits the reasonable inference that exhibit 6 was not the plan approved by Fuchiwaki, Citys summary adjudication motion on the design immunity defense should have been denied. As we have determined that triable issues of fact preclude summary adjudication based on the design immunity defense, we need not address the issues of the loss of design immunity due to changed conditions and whether plaintiffs remaining theories of liability would survive the successful assertion of a design immunity defense. In light of the foregoing, we conclude that the trial court correctly denied Citys summary judgment motion, which piggy-backed onto the summary adjudication order, so that aspect of Citys petition for a writ of mandate is denied.

DISPOSITION

Let a peremptory writ of mandate issue requiring respondent court to vacate its July 3, 2006 order granting City of Santa Monicas motion for summary adjudication and to enter a new and different order denying the motion. In all other respects, the petition is denied.

The parties shall bear their own costs.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

JACKSON, J.^*

ROTHSCHILD, J., Concurring.

I agree with my colleagues that the evidence permits a reasonable inference that exhibit 6 was not the plan approved by Fuchiwaki but I write separately to explain the grounds of my concurrence.

The inference that exhibit 6 represents the plan is contradicted by the fact exhibit 6 itself does not show barricades at the boundaries of the market to deter traffic from entering the market area.

Fuchiwaki and Avery both agreed barricades were to be part of the traffic control plan. Avery testified that when she walked the perimeter with Fuchiwaki they discussed the use of barricades and Fuchiwaki showed her where they should be placed. She also testified that the barricades were included when she and Fuchiwaki decided on the whole street closure plan. Fuchiwaki testified that when he and Avery were developing the plan: I recommended the use of standard traffic control barricades, including the parade barricade as well as the A frame barricade.

A reasonable inference from the testimony of Fuchiwaki and Avery is that Fuchiwaki would not have approved a traffic control plan which did not include barricades. Exhibit 6 depicts boundaries and traffic signs but it does not depict barricades. Therefore it can be inferred that exhibit 6 does not represent the traffic control plan Fuchiwaki approved.

ROTHSCHILD, J.

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Appendix A

^[1]Real parties in interest are plaintiffs in the following Los Angeles Superior Court cases: SC080283 (lead case), SC080406, SC080636, SC080651, SC080881, SC081103, SC081983, SC082241, SC082277, SC082238, SC082235, SC082236, SC079694, SC079851, SC080826, SC081832, SC081617, SC081879, SC081971, SC081853, SC082266, SC082547, SC082513, SC082674, SC086296, SC082239, SC082237, SC082645, SC082242, SC082240, SC082234, SC082243, SC082233, SC082425, SC082387, SC082282, SC082714.

^[2]Unspecified statutory references are to the Government Code.

Section 835 provides in pertinent part: Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

^[3]Section 830.6 provides: Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor. Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.

^[4]The trial court sustained evidentiary objections to portions of the evidence offered by both City and plaintiffs. The parties do not challenge the trial courts evidentiary rulings here, so we consider only the evidence admitted by the trial court, disregarding evidence to which objections were sustained. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108, fn. 5.)

^[5]Citys transportation planning manager, Lucy Dyke, defined a bollard as a design feature usually fixed or stable that can be used to delineate or discourage willful violation of an access restriction.

In his deposition, Fuchiwaki was asked the following question: When you looked at the bollards at the [Third Street] Promenade, did it ever cross your mind that maybe similar things could be used for the Farmers Market when theyre having a market? Fuchiwaki answered, No. He was then asked, Why not? Fuchiwaki responded, I didnt believe it was necessary.

^[6]Design immunity does not immunize the public entity from liability caused by negligence independent of design, even though the independent negligence is only a concurring, proximate cause of the accident. (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 747.) Thus, where a public entity is immune from liability for injuries caused by a dangerous condition of its property because the dangerous condition was created as a result of a plan or design which conferred immunity under section 830.6, the [entity] may nevertheless be liable for failure to warn of this dangerous condition where the failure to warn is negligent and is an independent, separate, concurring cause of the accident. (Cameron v. State of California (1972) 7 Cal.3d 318, 329 (Cameron).)

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.