TANSAVATDI v. CITY OF RANCHO PALOS VERDES (2026)

INTRODUCTION

Under Government Code section 830.6,¹ public entities may be immune from tort liability for dangerous conditions “caused by the plan or design” of public property. This protection, afforded to public bodies for the construction of public infrastructure, is generally called “design immunity.”

In a prior opinion in this case, our Supreme Court reaffirmed the longstanding rule that design immunity does “ ‘not necessarily shield the state from liability for a failure to warn of the same dangerous condition.’ ” (Tansavatdi v. City of Rancho Palos Verdes (2003) 14 Cal.5th 639, 657 (Tansavatdi I).)² The Supreme Court explained that, if, for example, a design for a roadway created a dangerous traffic condition, design immunity might shield a public entity from liability for creating the dangerous traffic condition. But design immunity does not necessarily immunize the public entity from failing to warn the public of it. (Id. at pp. 658–659.)

The Supreme Court's prior opinion expressly left open the following question: “whether design immunity might apply if the public entity is able to show that the presence or absence of warning signs was part of the approved design.” (Tansavatdi I, supra, 14 Cal.4th at p. 661.) In other words, the Supreme Court has not yet resolved whether and how design immunity applies when warning signs about a danger are themselves part of an approved public design. Following further proceedings in the trial court, that question is now squarely before us.

We hold as follows. When (a) the public entity has provided some warning of the allegedly dangerous condition, and (b) that warning was included as part of a reasonable plan or design that would be otherwise entitled to design immunity under section 830.6, then (c) design immunity may apply.

In our view, there is an important distinction between cases in which the public entity has provided no warning at all of the dangerous condition, and cases (like this one) in which the public entity has provided some warning of the allegedly dangerous condition—but a plaintiff alleges the warning was insufficient. Complaints about the adequacy of an existing warning approved as part of a government's design for public infrastructure are, in essence, complaints about the government's design of the warning. Such complaints fall into the area where design immunity has long applied.

Applying this reasoning to the facts of the case, we affirm the trial court's grant of summary judgment. We also affirm the trial court's award of expert fees to the respondent, the City of Rancho Palos Verdes.

FACTUAL AND PROCEDURAL HISTORY

This case arises from a tragic death. In 2016, Jonathan Tansavatdi was killed when his bicycle collided with a turning truck at an intersection in the City of Rancho Palos Verdes. Jonathan's mother, Betty Tansavatdi,³ sued the City alleging that the accident resulted from a dangerous condition of public property under section 835. Tansavatdi contended that the City was liable for creating a dangerous condition in designing the roadway and in failing to adequately warn of that danger.

While the factual record is extensive and the procedural history lengthy, we resolve the bulk of the appeal based on an issue of immunity. Our discussion is therefore focused on the record relevant to that issue.

A. The Accident

The facts surrounding the accident are largely undisputed. On the afternoon of March 18, 2016, Jonathan was riding his bicycle on Hawthorne Boulevard in the City. Although most of Hawthorne includes a bicycle lane, the bicycle lane stops at Dupre Drive (to the north of the intersection at issue) and then restarts after Vallon Drive (the intersection at issue). The block between Dupre and Vallon pitches sharply downhill in the southbound direction and curves to the right. (Tansavatdi I, supra, 14 Cal.5th at p. 648.) There is a right-turn-only lane on southbound Hawthorne at the intersection with Vallon. (Ibid.)

At the time of the accident, Jonathan was traveling south (downhill) along the right side of Hawthorne. (Tansavatdi I, supra, 14 Cal.5th at p. 649.) As he approached the intersection with Vallon, he rode his bicycle into the right turn lane. But rather than turn right onto Vallon, he continued riding straight through the intersection. As Jonathan entered the intersection, an 80-foot tractor trailer was making a right turn from Hawthorne onto Vallon. Due to the length of the trailer, the truck started its turn to the left of the right turn only lane, causing it to cut across the right turn lane at a perpendicular angle. Jonathan collided with the truck and died from his injuries. (Ibid.)

The truck driver testified that he was stopped at the red light at Vallon with his right turn signal on, with his truck straddling the right lane and the right turn only lane. He then slowly began his turn onto Vallon. He checked his mirrors as he did so, but did not see anyone. A witness who turned onto southbound Hawthorne after seeing Jonathan bike past testified that Jonathan was traveling an estimated 35 to 40 miles an hour. She followed behind Jonathan in the right lane, but she moved to the left lane when she saw the truck in the right lane with his right turn signal on, waiting at the red light at Vallon. She testified that as she came down the hill, the light at Vallon turned green and the truck started its right turn. She noticed that Jonathan, who was still in the right lane, had not slowed down, so she began honking her horn to get his attention. The witness recalled that when Jonathan was about 40 feet from the turning truck he looked up and attempted to stop. He slowed to about 10 to 15 miles per hour before hitting the side of the truck.

B. Tansavatdi's Complaint

Tansavatdi filed a complaint against the City and others alleging a single cause of action for dangerous condition of public property pursuant to section 835.⁴ The complaint alleged that the intersection of Hawthorne and Vallon constituted a dangerous condition the City had “created or allowed to be created” under section 835. The complaint further alleged the City had provided “inadequate warning of dangerous conditions not reasonably apparent to motorists” driving through that intersection. As discussed below, that the intersection itself constituted the allegedly dangerous condition is significant to our resolution here.

C. First Motion for Summary Judgment

The City moved for summary judgment, focused on Tansavatdi's theory that the absence of a bicycle lane on Hawthorne north of Vallon constituted a dangerous condition. The City asserted the affirmative defense of design immunity under section 830.6. (Tansavatdi v. City of Rancho Palos Verdes (2021) 60 Cal.App.5th 423, 429, review granted Apr. 21, 2021, S267453 (Tansavatdi v. City).)

“In support of its claim for design immunity, the city submitted plans for a 2009 street resurfacing project (2009 plans), which included the resurfacing and restriping of Hawthorne Boulevard. Among other specifications, those plans included directions to install specific striping details, pavement markings, and signs.” (Tansavatdi v. City, supra, 60 Cal.App.5th at p. 429.)

The City also filed a declaration and deposition excerpts from Nicole Jules, a former senior engineer and deputy director of public works for the City. “Jules testified that in 2009, the city had carried out a resurfacing project that included Hawthorne Boulevard. She explained that the project relied on federal funding, and that the city was required to submit plans signed by the city to secure that funding.” (Tansavatdi v. City, supra, 60 Cal.App.5th at p. 430.) “Regarding the site of the accident and the portion of Hawthorne Boulevard preceding it, Jules opined that it met or exceeded all applicable government standards, and that the 2009 plans, including the absence of a bicycle lane, were reasonably approved.” (Id. at p. 431.) The conclusion that the 2009 plans were reasonable and in compliance with applicable guidelines was echoed by Rock Miller, the City's traffic engineering expert. (Ibid.)

The trial court granted summary judgment for the City based on design immunity. The court found that the City had established the elements of design immunity as a matter of law—a causal relationship between the design and the accident, the relevant City employee's discretionary approval of the 2009 plans, and substantial evidence that the plans were reasonable. (Tansavatdi v. City, supra, 60 Cal.App.5th at p. 433.) The trial court did not address Tansavatdi's failure to warn claim. (Ibid.)

On appeal, Tansavatdi argued that design immunity did not protect the absence of a bicycle lane and, alternatively, that her failure to warn theory should survive the application of design immunity. (Tansavatdi v. City, supra, 60 Cal.App.5th at p. 433.) This court affirmed the trial court's finding that the City established the elements of design immunity as to the absence of a bicycle lane at the site of the accident. (Id. at pp. 435–441.) We also considered Tansavatdi's failure to warn claim, specifically, that “the absence of a bicycle lane at the area of the accident constituted a concealed trap for which a warning was necessary.”⁵ (Id. at p. 441.) We concluded that “design immunity does not, as a matter of law, preclude liability under a theory of failure to warn of a dangerous condition.” (Ibid.) We remanded the case for the trial court to consider the failure to warn theory in the first instance. (Id. at p. 442.)

The Supreme Court granted the City's petition for review. In Tansavatdi I, supra, 14 Cal.5th at page 647, the court held that “design immunity does not categorically preclude failure to warn claims that involve a discretionarily approved element of a roadway.” The Supreme Court accordingly affirmed the decision in Tansavatdi v. City and remanded the matter so that Tansavatdi's failure to warn claim could be considered by the trial court. (Tansavatdi I, supra, 14 Cal.5th at p. 670.) But the court noted that the City had not proffered evidence of whether City officials considered whether to include warnings about the alleged dangerous condition as part of its design plan. Thus, the court cautioned, “we have no occasion to consider, and express no view on, how design immunity might affect a failure to warn claim when a public entity does produce evidence that it considered whether to provide a warning.” (Id. at p. 661.)

D. Second Motion for Summary Judgment

1. City's Motion

Upon remand, the City filed a new motion for summary judgment focused on the issue left open by the Supreme Court in Tansavatdi I. Specifically, the City argued that it had expressly considered the signs and pavement markings that were present at the time of the accident, and it included those warnings as part of the 2009 plans. Thus, the City contended the warnings were subject to design immunity under section 830.6.

Alternatively, the City argued that even if design immunity was inapplicable, there was no triable issue as to the elements of a failure to warn claim. The City argued that there was no dangerous condition as a matter of law (citing evidence of an absence of other accidents), the City had no notice of any such condition, there was no evidence of a concealed trap, the City provided warnings of the purportedly dangerous condition of the roadway, and the absence of additional warnings was not a substantial factor in the accident.

In support of its motion, the City presented evidence of the warning signs and markings on Hawthorne to the north of the intersection with Vallon. These warnings included broken striping for 200 feet in advance of the preceding intersection (Dupre and Hawthorne) to signal the end of the bicycle lane. In the center median, about 500 feet south of Dupre, there was a yellow curve warning sign showing a curved arrow, and below that a 35 miles per hour advisory plate. Adjacent to these signs were “35” markings stenciled in white on the pavement in each lane. Miller, the City's engineering expert, testified about the California Manual on Uniform Traffic Control Devices (MUTCD), the standard for design decisions regarding traffic controls. Miller explained that the curve warning signs were advised by the MUTCD where the comfortable speed around a curve (here, 35 miles per hour) was lower than the speed limit (45 miles per hour). At the same location, on the right shoulder, there was a yellow pictorial sign showing a truck on a steep grade and below that a sign indicating an “8% GRADE.” These signs were located approximately 225 feet from the start of the right-hand curve, which begins about 700 feet south of Dupre. Along the curve in the median were posted six yellow and black chevron signs, spaced equally. Miller explained that these signs are recommended under the MUTCD because the comfortable speed posted around the curve was ten miles per hour lower than the speed limit. About 570 feet north of Vallon, there was a warning sign depicting a traffic signal ahead, as well as “SIGNAL AHEAD” messages stenciled on the pavement in each lane. According to Miller, these warnings are recommended under the MUTCD because the traffic signal is not visible to approaching traffic due to the curve. This area also included a flashing yellow beacon in the median about 550 feet north of Vallon, near one of the chevron signs. Finally, the right turn lane was marked with striping beginning 220 feet north of Vallon, with painted arrows on the pavement. There were also two “RIGHT LANE MUST TURN RIGHT” signs, one near the start of the turn lane and one about 100 feet from the intersection. Miller opined that all of these signs and markings were in conformance with the MUTCD. Miller also opined that the intersection and approach were safe when used with reasonable due care and were in compliance with all applicable government standards.

The City presented evidence that the marking and signs identified were part of the construction plans for the City's 2009 street resurfacing project. Former employee Jules provided a declaration stating that at the time of the 2009 project, “the city considered what signage, striping and stenciling to include on Hawthorne Boulevard regarding the bike lane and any other warnings, and those were included in the final plans and installed or kept in accordance with the plans.” She stated that the warning signs described above were already in place in 2009 and the “2009 plans expressly acknowledged existed and consciously chose to keep them in place, making their retention part of the 2009 approved plans.”

Miller noted that between 2022 and 2023 (several years after the accident), the City decreased the advisory speed around the curve from 35 to 30 miles per hour, added three more chevron signs around the curve, and added additional warning signs on the right shoulder near the start of the curve.

2. Tansavatdi's Opposition

In her opposition to the City's motion for summary judgment, Tansavatdi argued that the intersection and the southbound approach to the intersection created a dangerous condition.☐ She also contended there were triable issues as to whether the condition was a concealed trap, whether the City had notice of the danger, and whether the dangerous condition caused the accident. In addition, she argued that the City was not entitled to design immunity for the failure to adequately warn of the dangerous condition.

Tansavatdi's expert, Edward Ruzak, opined that the signage concerning the intersection and the approach to the intersection was inadequate. While Ruzak acknowledged that the City had installed numerous signs warning of the upcoming intersection, in Ruzak's view this signage was not enough. For example, he opined that the City should have positioned a “radar speed feedback” sign on Hawthorne to raise “user awareness of their speed.” He opined that the City should have installed a “flashing warning beacon system to warn users of the upcoming intersection.” And he asserted that “various” additional signs should have been installed in advance of the intersection, including ones stating “BE PREPARED TO STOP” “WATCH FOR STOPPED VEHICLES,” and “PROCEED AT OWN RISK.” Finally, he opined that the City should have painted bicycle stenciling with painted chevrons in the roadway (i.e., sharrows) to indicate the presence of cyclists.

Ruzak further opined that the intersection and approach was a dangerous condition and concealed trap at the time of the accident that was or should have been known to the City. Tansavatdi presented evidence of traffic collision reports and argued that the accident rate at the intersection was higher than the City claimed.

3. Trial Court's Ruling

In a written ruling filed September 6, 2024, the court granted summary judgment for the City.

The trial court accepted “as decided that the City is immunized under section 830.6 for the design of the 2009 repaving project.” The court considered the issue left open by the Supreme Court regarding the application of design immunity to the warning signs. To do so, the trial court first found it necessary to define the “dangerous condition” at issue in Tansavatdi's failure to warn claim. It found that the relevant “dangerous condition” was the intersection itself. It then found that the City had presented evidence to show that it considered and included warnings about the intersection as part of the approved design for the 2009 plan.

Thus, the trial court found that the City had met its burden to establish that the warnings were part of the 2009 design plan and that the 2009 plan was entitled to design immunity. Accordingly, the court concluded that the City had established that it was immune from liability “for the design of the warnings in place at the time of the collision as a matter of law.” On that basis, the court granted summary judgment.⁶

This appeal followed.

E. Motion to Tax Costs

On April 25, 2018, the City served a statutory offer to compromise on Tansavatdi pursuant to Code of Civil Procedure section 998 (998 offer). The City offered a waiver of costs “[i]n full settlement of this action” in exchange for dismissal of the action and a release of liability. In particular, the offer required “execution and transmittal of a General Release by [Tansavatdi], in favor of [the City]; and Each party is to bear their own costs and attorney fees and the settlement will include all existing and future medical, legal and other liens arising in any way from the subject accident.” Tansavatdi did not accept the offer.

In October 2024, after the trial court's order granting summary judgment, the City served its memorandum of costs. The City sought over $79,000, including $36,372 in expert witness fees. Tansavatdi filed a motion to strike and/or tax the City's costs. As relevant here, she argued that the City was not entitled to expert witness fees because the 998 offer was uncertain and was made in bad faith.

In a written ruling following a hearing on January 17, 2025, the court granted the motion to tax costs in part and denied it in part. As to the 998 offer, the court found that it was “not so uncertain as to render it invalid.” In particular, the court found that the inclusion of a “general release” in the offer was “insufficient to invalidate a 998 offer if the offer is limited to claims related to the instant lawsuit.” In total, the court awarded $75,979.22 in costs to the City as the prevailing party.

Tansavatdi separately appealed from the order awarding costs to the City. We consolidated the appeals for the purpose of briefing, argument, and decision.

DISCUSSION

I. Design Immunity

Tansavatdi contends the trial court erred in granting the City's motion for summary judgment. For the reasons discussed below, we hold that the City was entitled to immunity under section 830.6. We therefore affirm the grant of summary judgment.

A. Legal Standards

1. Summary Judgment

Where a defendant moves for summary judgment based on an affirmative defense, the defendant must show that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) “ ‘We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) “The appellant, however, still ‘has the burden of showing error, even if he did not bear the burden in the trial court.’ ” (640 Octavia, LLC v. Pieper (2023) 93 Cal.App.5th 1181, 1189.)

2. Government Tort Claims and Immunities

“Under the Government Claims Act, ‘[a] public entity is not liable for an injury’ ‘[e]xcept as otherwise provided by statute.’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).) Section 835 provides that a public entity may be liable for injuries caused by a dangerous condition of its property under two circumstances. First, a public entity may be held liable for an act or omission by a government actor that created the dangerous condition (§ 835, subd. (a)). Second, a public entity may be held liable for a failure “to protect against” a dangerous condition of which the entity had notice (id., subd. (b)). The phrase “protect against” includes “warning of a dangerous condition.” (§ 830, subd. (b); see also Tansavatdi I, supra, 14 Cal.5th at p. 653.) A dangerous condition is one that “creates a substantial ․ risk of injury” when the property is “used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).)

The public entity may raise an affirmative defense of immunity, even if a dangerous condition was established. At issue here is the immunity under section 830.6, i.e., “design immunity,” discussed below. (See Tansavatdi I, supra, 14 Cal.5th at pp. 653, 660.) Design immunity is often raised on a motion for summary judgment, “enabling the trial court to find the defense established as a matter of law.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939–940 (Grenier).)

B. Tansavatdi I

The touchstone of our analysis is the Supreme Court's opinion in Tansavatdi I. Tansavatdi I is not only a prior decision in this same case. It is also the Supreme Court's most thorough and recent consideration of the doctrine of design immunity. We therefore discuss it at length.

At the outset of Tansavatdi I, the Supreme Court made clear that there was one question before it—whether design immunity under section 830.6 “categorically precludes any claim that the public entity is liable for having failed to warn of a dangerous traffic condition resulting from that approved design.” (Tansavatdi I, supra, 14 Cal.5th at p. 652, italics added.) The high court ultimately answered that question in the negative. It found that this outcome was controlled by its prior opinion in Cameron v. State of California (1972) 7 Cal.3d 318 (Cameron). (Tansavatdi I, supra, 14 Cal.5th at p. 648.) The Supreme Court declined the City's request to overrule Cameron as “illogical” or poorly reasoned. (Ibid.)

In explaining and reaffirming Cameron, Tansavatdi I extensively analyzed another case, Flournoy v. State of California (1969) 275 Cal.App.2d 806 (Flournoy). (Tansavatdi I, supra, 14 Cal.5th at pp. 654–655.) It did so because the “holding in Cameron is based largely on the analysis set forth” in Flournoy. (Id. at p. 654.)

Flournoy was a wrongful death action resulting from a car accident on an icy bridge. The plaintiffs alleged that the bridge design caused moisture to condense on the roadway, creating a dangerous condition in freezing weather. (Flournoy, supra, 275 Cal.App.2d at p. 808.) The plaintiffs also alleged that despite notice of numerous accidents caused by ice on the bridge, the state had not posted any signs warning motorists about the danger. (Ibid.)

Flournoy found that design immunity “could affect only one of two [alternative] theories of recovery.” (Flournoy, supra, 275 Cal.App.2d at p. 810.) Each theory “postulated a separate, although concurring, cause of the accident. [Citation.] The first theory asserted causation in the state's active negligence in creating a danger, the second in the state's passive negligence in failing to warn of it.” (Id. at p. 811.)

Thus, as Tansavatdi I observed, under section 835, “ ‘[r]egardless of the availability of the active negligence theory, plaintiffs were entitled to go before a jury on the passive negligence theory, i.e., an accident caused by the state's failure to warn the public against icy danger known to it but not apparent to a reasonably careful highway user.’ ” (Tansavatdi I, supra, 14 Cal.5th at p. 655, quoting Flournoy, supra, 275 Cal.App.2d at p. 811.) As such, “ ‘[b]y force of its very terms the design immunity of section 830.6 is limited to a design-caused accident. [Citation.] It does not immunize from liability caused by negligence independent of design.’ ” (Tansavatdi I, supra, at p. 655, quoting Flournoy, supra, at p. 811.)

Turning from Flournoy to Cameron, the Tansavatdi I court discussed the facts of that case. In Cameron, the plaintiff alleged that the state negligently constructed an improperly banked curve and also failed to post any warnings to drivers to reduce their speed. (Cameron, supra, 7 Cal.3d at p. 322.) The Supreme Court reversed a grant of nonsuit based on design immunity, finding that the state was not entitled to immunity because it presented no evidence that the curve's banking was part of the approved design. (Id. at p. 326.) Additionally, the court found that even if the curve's banking was protected by design immunity, the state could be liable for a failure to warn where there was evidence that the curve was a concealed trap and the failure to warn “is an independent, separate, concurring cause of the accident.” (Id. at p. 329.)

Tansavatdi I then addressed the issue before it in light of these authorities. It rejected the City's argument that failure to warn claims against public entities are categorically limited to situations in which the entity fails to warn of a dangerous condition not protected by design immunity. Instead, the court concluded that a claim could sometimes lie for a failure to warn of a dangerous condition created by the design of public infrastructure, even if liability for the dangerous condition itself would be barred by design immunity. (Tansavatdi I, supra, 14 Cal.5th at p. 652.)

In so concluding, the Supreme Court made several points that are important for our analysis here. First, quoting its previous decision in Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69 (Cornette), the Court explained the purpose of design immunity. It noted that “ ‘[t]he 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.’ ” (Tansavatdi I, supra, 14 Cal.5th at pp. 653–654.) Thus, Tansavatdi I emphasized that the fundamental point of design immunity is to preserve the ability of public officials to weigh questions of risk without later interference by juries, a separation-of-powers concern.

Second, the reasons for not categorically extending design immunity to failure to warn claims is rooted in a distinction between “active” and “passive” negligence. (Tansavatdi I, supra, 14 Cal.5th at pp. 659–660.) That a governmental entity might be immune from suit for its “active” negligence in creating an approved infrastructure project does not necessarily immunize it from suit for the “passive” failure to warn of the danger it created, so long as the entity had notice of the danger. (Ibid.)

Third, the Supreme Court cautioned that for a failure to warn claim, “the plaintiff must prove the absence of a warning was an ‘independent, separate, concurring cause of the accident.’ ” (Tansavatdi I, supra, 14 Cal.5th at p. 661, quoting Cameron, supra, 7 Cal.3d at p. 329.) As such, “if a plaintiff is not able to establish that the absence of a warning sign was a substantial factor in causing the injury, the claim will fail.” (Tansavatdi I, supra, 14 Cal.5th at p. 661.)

Finally, as we previously noted, the Supreme Court expressly declined to address “whether design immunity might apply if the public entity is able to show that the presence or absence of warning signs was part of the approved design.” (Tansavatdi I, supra, 14 Cal.5th at p. 661.) The Court noted that the plaintiffs in Cameron “specifically alleged that the state's failure to warn was not part of any approved plan.” (Ibid.)

C. The City is Entitled to Design Immunity Under Section 830.6

1. Design Immunity May Apply to Challenges to the Adequacy of the Design of Signage

With Tansavatdi I in mind, we turn to the issues before us.

We start with what is not in dispute. Tansavatdi agrees, as she must, that the City is entitled to design immunity for any dangerous conditions resulting from the 2009 plans. (See Tansavatdi v. City, supra, 60 Cal.App.5th at p. 441.) Tansavatdi also agrees, as she must, that the relevant “dangerous condition” is the intersection and the approach to the intersection. And she agrees that there were multiple signs warning of the intersection and the approach to the intersection that were part of the approved 2009 plans. These included a curve warning sign with a reduced speed limit advisory of 35 miles per hour, corresponding pavement markings, six chevron signs, a flashing beacon around the curve, a sign noting the steep grade of the hill, and a sign and pavement markings advising of the traffic signal ahead. Thus, there is no dispute that the City provided some warning of the relevant dangerous condition. And there is no dispute that these warnings were installed as part of an approved design (the 2009 plans).

The parties disagree about the legal consequences of these facts. The City argues that design immunity bars Tansavatdi's failure to warn claim, because the City “considered which warnings to provide” as part of an approved design. According to the City, this means that the decision to not provide additional warnings is automatically protected by design immunity. Tansavatdi argues that design immunity does not apply because, according to her, “failure to warn claims ․ are not subject to design immunity” “at least when they are based on a history of collisions after the roadway was constructed.”

We adopt a more limited rule than urged by either of the parties. In our view, when (a) there is some warning of the relevant dangerous condition provided as part of (b) an approved design, but (c) the plaintiff claims that additional or different warnings were necessary, such claims may be barred by design immunity (assuming that all the other requirements of design immunity are met). That more limited rule is sufficient to resolve this case.

We reach our conclusion for several reasons.

First, “the prime requisite of ․ design immunity” is a “design-caused accident.” (Flournoy, supra, 275 Cal.App.2d at p. 812.) When, as here, there are warnings included in the public entity's design, a plaintiff complains that the design should have included different or additional warnings, and alleges that the failure to have different warnings caused an accident, it is difficult to conclude that we have anything other than a “design-caused” accident. Thus, design immunity should apply.

A comparison to Flournoy is instructive. As noted, in that case the Court of Appeal found that design immunity applied to claims based on the design of an ice-prone bridge, but did not apply to claims based on a failure to warn that the bridge might become icy. (Flournoy, supra, 275 Cal.App.2d at pp. 810–811.) It further reasoned that this distinction “incorporated the ‘active’ and ‘passive’ theories of negligence recognized in the common law.” (Tansavatdi I, supra, 14 Cal.5th at p. 659 [discussing Flournoy].) Flournoy’s core holding was that the design immunity created by section 830.6 “ ‘does not immunize from liability caused by negligence independent of design.’ ” (Tansavatdi I, supra, at p. 655, quoting Flournoy, supra, at p. 811.) But here we do not have negligence “independent of design.” Here, warnings were provided, and they were considered as part of the roadway's design. The only question is whether the warnings were sufficient. In this case, liability is intricately bound up with a question of design.

Second, the Supreme Court has emphasized that “to establish liability for failing to warn of a dangerous traffic condition that is otherwise subject to design immunity, the plaintiff must prove the absence of a warning was an ‘independent, separate, concurring cause of the accident.’ ” (Tansavatdi I, supra, 14 Cal.5th at p. 661, quoting Cameron, supra, 7 Cal.3d at p. 329.) For purposes of design immunity, when a warning is provided as part of a design, it is difficult to conclude that inadequacy of that warning is an “independent” or “separate” failing different than the design itself, such that it can give rise to a separate cause of action independent of design immunity.⁷

Third, allowing design immunity for claims like this one helps to fulfill the core purpose of design immunity. As explained by the Supreme Court: “[T]he law's purpose is to avoid the dangers involved in permitting reexamination and second-guessing of governmental design decisions in the context of a trial: ‘While it is proper to hold public entities liable for injuries caused by arbitrary abuses of discretionary authority in planning improvements, to 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.’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 349, quoting Recommendation Relating to Sovereign Immunity (Jan. 1963) Proposed Legislation, com. foll. § 830.6, 4 Cal. Law Revision Com. Rep. (1963) p. 823; see also Cornette, supra, 26 Cal.4th at p. 69 [discussing same]; Tansavatdi I, supra, 14 Cal.5th at pp. 653–654 [discussing same].) This purpose is better served by imposing design immunity in cases where the issue is the adequacy of an existing warning.

True, as Flournoy, Tansavatdi I, and Cameron recognize, the separation-of-powers values design immunity protects are not imperiled by allowing juries to assess whether public entities should warn about foreseeable dangers when the public entity has failed to provide or consider a warning at all. (See Tansavatdi I, supra, 14 Cal.5th at pp. 667–668 [explaining that the rule of Cameron and Flournoy “recognizes that a design might be the best engineers can do under the circumstances but still leave foreseeable dangers that can and should be addressed through appropriate warnings”].)

But a case where the issue is whether a warning should have been provided at all is different than a case where the issue is whether a particular warning was adequate.

Take this case. Here, were the case to go to trial, the question before the jury would not be whether the City should have provided some form of warning about a dangerous intersection. There is no dispute that it did so. Rather, the jury would be asked to determine the best form of a potential warning, a fundamental question of traffic engineering. Should, as Tansavatdi contends, the City have painted additional chevrons on the roadway, have positioned a “PROCEED AT OWN RISK” sign, and have installed a flashing warning beacon and a radar speed feedback sign? Or were the City's flashing yellow beacon, “SIGNAL AHEAD” sign, and other City infrastructure enough?

While we do not think a jury is incapable of answering such questions, asking a jury to do so implicates interference with significant infrastructure planning decisions made by governments. Design immunity, when it applies, reserves such decisions to public officials, not the courts. We also note that extending design immunity to claims about the design of warnings may be particularly appropriate in the context of traffic engineering. In the traffic context, lines between a “warning” and the fundamental architecture of a roadway are blurry. Are rumble strips (changes to road structure designed to encourage drivers to slow down) a warning, or a part of an infrastructure project? Is lane striping a “warning” or a design project? At what point does a warning sign convey too much information, and at what point are so many signs installed that any individual sign is ignored? At a minimum, the answer to these questions is not obvious.

By contrast, Tansavatdi urges us to adopt a very different rule. She contends that design immunity should never immunize a claim that a particular warning of a dangerous condition was inadequate, as long as the public entity had notice of the dangerous condition. Under Tansavatdi's proposed rule, public entities would never have design immunity for anything that could be characterized as a “warning” of a known dangerous condition, no matter how much consideration was put into the design of the warning. Such a rule would substantially weaken design immunity. If we adopted Tansavatdi's proposed rule, even when a public entity thoroughly considers how to warn of a known dangerous condition, a plaintiff could contend that the warning needed to be designed differently. Of course, once an accident has occurred, it is a somewhat trivial task to raise a triable issue of fact as to whether a different warning would have been better at preventing accidents. Thus, under Tansavatdi's interpretation, in most cases where an accident occurred and a dangerous condition is alleged, design immunity would not protect against a trial or verdict. Such a rule is not persuasive—and no case of which we are aware has adopted such a rule—because it appears fundamentally inconsistent with the Legislature's purpose in creating design immunity in section 830.6.

We also note that our reading of Tansavatdi I is consistent with the decision of our sister court in Stufkosky v. Department of Transportation (2023) 97 Cal.App.5th 492 (Stufkosky). There, the plaintiffs’ father died in a traffic accident resulting from another motorist striking a deer on the highway. The plaintiffs alleged that the highway design and inadequate number of deer crossing signs created a dangerous condition for motorists. (Id. at p. 495.) The Court of Appeal affirmed the grant of summary judgment on the grounds of design immunity. (Id. at p. 496.) The court rejected the plaintiffs’ argument that design immunity did not bar their failure to warn claim. It observed that “Caltrans produced evidence that its design plans specified the quantity and placement of deer crossing signs. [Plaintiffs] did not dispute Caltrans warned motorists of this danger, only that it did not do so adequately.” (Id. at p. 496.)

On balance, therefore, lawsuits over the adequacy of warnings made on a roadway as part of a public design—when a warning has been provided—appear to us to be similar to the kind of infrastructure planning issues that design immunity is intended to protect. We have little difficulty applying design immunity on the facts here.

Tansavatdi suggests a variety of deleterious or illogical consequences would arise from a ruling allowing the City to invoke design immunity here. We address the concerns she raises in turn.

Tansavatdi's primary argument is that imposing design immunity would “eviscerate liability for failure to warn in any case in which there were design plans, which includes virtually every road.” She notes that there is almost always some consideration of the provision of warnings when roads are designed. Thus, she argues, if design immunity bars a failure-to-warn claim based on a public entity's mere consideration of a warning, that would effectively bar failure-to-warn claims generally in cases involving roads or highways, despite the Supreme Court's recognition of such claims in Tansavatdi I and Cameron.

But the rule we adopt is not as broad as Tansavatdi fears. And it does not, we think, have the consequences of which Tansavatdi warns.

A comparison to Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 89 (Anderson) marks the limits of our holding today. In Anderson, the court considered a road with an allegedly dangerous curve, which the plaintiff claimed could not safely be navigated at more than 45 miles per hour, although the posted speed limit was 65 miles per hour. (Id. at p. 86.) The city, in that case, had not posted any roadway signs—whatsoever—warning of the upcoming curve. (Id. at p. 87.) The Anderson court found that, in general, the city's decisions regarding placement of warning signs and speed limits might be protected by design immunity. (Id. at pp. 89–91.) However, it nonetheless found that the plaintiff might be able to assert a claim for failure to warn, based on the city's failure to warn of the dangerous upcoming curve, citing Cameron. (Id. at pp. 91–92.)

Nothing in our ruling today is inconsistent with Anderson. In cases where no warning has been provided of a dangerous condition, it is difficult to see how the purposes of design immunity are implicated. In such cases, as in Flournoy, a jury is tasked only with determining whether or not a governmental entity failed to warn of a known danger. But, for the reasons we explain above, that is quite different than a case like this one, in which a warning of the dangerous condition was designed by and approved by a public entity as part of the design of public infrastructure, and the jury would be tasked with assessing the adequacy of the design of that warning. Design immunity should apply where design is at issue—but not to cases, like the warnings in Anderson or Flournoy, where it is not.

Tansavatdi also argues that “granting public entities design immunity” in cases like this one “would allow public entities to withhold badly needed warnings with impunity in perpetuity, no matter how great the danger to life and limb.” This is not so. For decades, since Baldwin v. State of California (1972) 6 Cal.3d 424, 434 (Baldwin), it has been California law that “when a public entity has notice that changed physical conditions have caused an approved design to become dangerous in operation, the entity ‘must act reasonably to correct or alleviate the hazard,’ ” and that despite design immunity a public entity “remains ‘ “under a continuing duty to review its plan in the light of its actual operation.” ’ ” (Tansavatdi I, supra, 14 Cal.5th at p. 667 [discussing Baldwin].) The Legislature codified Baldwin (and slightly softened its financial ramifications) in its current version of section 830.6. (Id. at p. 663 [discussing legislative history].) The current version of section 830.6 provides that “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.” (§ 830.6, italics added; see Tansavatdi I, supra, 14 Cal.5th at p. 663.) Thus, even when design immunity applies, a public entity may have a duty to provide warnings when changed physical conditions or other circumstances have caused the design to become dangerous—consistent with the ordinary rules for design immunity. If changed physical conditions have caused the design of a warning to no longer be reasonable, the existing parameters of design immunity already restrict its application.⁸

We also do not agree with Tansavatdi's argument that a finding of design immunity in this case would render a separate immunity—so-called “signage immunity” under section 830.8—“superfluous.” Section 830.8 provides that public entities are not liable for “an injury caused by the failure to provide traffic or warning signals, signs, markings or devices,” (§ 830.8) except when “necessary to warn of a dangerous condition which would not be reasonably apparent to, and would not have been anticipated by, a person using the highway with due care.” (Cameron, supra, 7 Cal.3d at p. 327; see Tansavatdi I, supra, 14 Cal.5th at p. 660.)

Tansavatdi argues that “if design immunity ․ applies to failure-to-warn claims ․ it is hard to imagine how a public entity could ever be liable” for failing to provide a sign “necessary to warn of a dangerous condition” and not anticipated by a person using the highway with due care. But there is no inconsistency between signage immunity under section 830.8 and design immunity.

Section 830.8 signage immunity provides a general immunity for a public entity's failure to provide traffic signage, with an exception for signage concerning what are called “concealed trap[s],” i.e., dangerous conditions that a person using due care could not reasonably anticipate. (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196–1197 [discussing signage immunity and “concealed trap” exception].) When signage immunity applies, it protects a government entity's decision to not post any warning signs at all, even of a dangerous condition. (Ibid.) Where the dangerous condition is a “concealed trap,” a government may be liable for failure to post any warnings, or, as several cases have held, for providing warnings that were inadequate. (E.g., Briggs v. State of California (1971) 14 Cal.App.3d 489, 497 [discussing cases].)

But the concern of signage immunity is something quite different than design immunity. Signage immunity is not focused on the design of public projects. Rather, it is intended to provide a general immunity for governments against claims deriving from the failure to post signs—except when the concealed trap exception applies, in which case there is no immunity at all. Our holding here renders neither signage immunity nor its concealed trap exception superfluous. In cases where design immunity does not provide immunity for a government's failure to place signs, signage immunity might apply and provide a separate protection from liability for a government. In cases, like Anderson, where there is a “concealed trap” and neither design immunity (because no warning was provided, or because the other requirements of design immunity are not met) nor signage immunity applies, then a governmental entity might still be held liable for the failure to post a warning sign. The two immunities, under our interpretation here, do not work at cross-purposes.

Finally, Tansavatdi argues that applying design immunity to cases such as hers will, at least in some cases, allow governments to escape liability for providing inadequate warnings of dangerous conditions. While this concern is understandable, it does not alter our conclusion. To some extent, Tansavatdi's concern is simply a complaint about the consequences of providing an immunity at all. As we discuss above, the point of design immunity is to limit governmental liability in some cases. While providing limits to liability has consequences, as courts have long emphasized the point of design immunity is that the weighing of the risks and benefits of infrastructure design should generally be a task undertaken by authorized government officials, not courts and juries. Under our holding here, that means some entities may indeed escape liability for designing a warning a plaintiff views as inadequate (just as Tansavatdi views the warnings provided in this case).

But we also stress that design immunity does not immunize truly unreasonable design, including the design of warnings. Design immunity, to apply at all, requires evidence of “substantial evidence supporting the reasonableness of the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69; see § 830.6 [courts must determine whether “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”].) While this is a generous standard for governmental entities, it is not a limitless one. It does require a showing of reasonableness and does not apply in all cases. (E.g., Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 798–799 [finding no substantial evidence to support design immunity].) If, under our holding here, a city designs a warning without substantial evidence of reasonableness, the design of that warning will not be protected by design immunity. And, of course, in addition to the substantial evidence requirement, all the other requirements of design immunity are necessary for it to apply, and design immunity can be lost over time. (Cornette, supra, 26 Cal.4th at pp. 69, 70–73.)

Put simply, for the reasons given above, we conclude that design immunity may apply (assuming all other requirements of design immunity are met) when, as here, a government provided a warning about a dangerous condition, and the concern raised by the plaintiff is not whether a warning should have been provided at all, but rather whether the design of the warning of that dangerous condition was adequate.

2. The City Made a Sufficient Showing to Invoke Design Immunity

As an alternative argument, Tansavatdi argues that even if design immunity might in general protect against claims based on the adequacy of a warning, it would not apply in this particular case. She argues there was no evidence the City considered the “specific warnings at issue here.” According to Tansavatdi, to obtain design immunity, the City was required to show that it considered the specific warnings her expert identified and then intentionally omitted them.

This argument finds no support in the design immunity caselaw. Design immunity is not limited to features expressly considered by the public entity. Our sister court in Stufkosky rejected the same argument. (Stufkosky, supra, 97 Cal.App.5th at p. 498 [“Limiting design immunity to those features expressly considered would be tantamount to requiring the public entity to address all conceivable design features during the approval process”]; Hampton, supra, 62 Cal.4th at p. 351 [discussing “practical problems” of such proof].) Similarly, in Rodriguez v. Department of Transportation (2018) 21 Cal.App.5th 947, 956–959 (Rodriguez), the court rejected a plaintiff's argument that the public entity “cannot establish discretionary approval because the purported decision maker never considered the particular feature or design element at issue.” (Id. at p. 956.)

Nor do the cases that Tansavatdi cites support her argument. They concern cases in which there was no evidence of a formal plan that adopted the design feature at issue. (See Cameron, supra, 7 Cal.3d at p. 326 [reversing nonsuit on design immunity where “state has presented no evidence that the superelevation which was actually constructed on the curve in question ․ was the result of or conformed to a design approved by the public entity”]; Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 372 [no immunity “in the absence of evidence of the discretionary approval required by section 830.6” as the county presented no evidence of a formal plan].) Accordingly, we do not believe that Tansavatdi's interpretation of the requirements of design immunity is correct.

Tansavatdi also argues there was no evidence the City “took the insufficient sight distance on southbound Hawthorne Boulevard into account” as part of the 2009 plan. But we agree with the trial court's finding to the contrary. The City may not have expressly considered what Tansavatdi now terms the “sight distance limitation,” but it did consider the facets of the roadway that result in this purportedly dangerous condition. Specifically, as we have discussed, the City included warnings of the curve, including a 10-mile-per-hour reduction in speed, the steep grade, and the limited visibility of the upcoming traffic signal. The warnings the City considered and ultimately included were targeted at the very conditions Tansavatdi now cites.

Thus, we conclude that the City made a sufficient showing to obtain summary judgment that it was immune from liability under section 830.6. We therefore affirm the trial court's grant of summary judgment.⁹

II. Expert Fees

A. Timeliness of Appeal

Tansavatdi separately appealed the court's order on her motion to tax costs. The City moved to dismiss the costs appeal. It argues that the appeal was untimely. We conclude the appeal was timely filed pursuant to California Rules of Court, rule 8.104(a)(1)(B).¹⁰

Rule 8.104(a)(1) provides, subject to exceptions not relevant here, “a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.” The term “judgment” for purposes of this rule includes an appealable order. (Rule 8.104(e).)

The record indicates that on January 17, 2025, the same day the court issued its minute order ruling on the motion to tax costs, the court clerk mailed a copy of the order to the parties. The 10-page minute order is not filed-endorsed. At the conclusion of the order, the court directed the clerk “to give notice of the ruling on the motion. Otherwise, the Plaintiff to give notice.” The order further stated, “Certificate of Mailing is attached.” The record also includes a filed-endorsed certificate of mailing, reflecting the service of the minute order and the date.

On January 21, 2025, Tansavatdi served on the City a notice of entry of judgment or order. She attached a copy of the January 17, 2025 minute order on the motion to tax costs. Tansavatdi's notice did not include the court clerk's certificate of mailing.

Tansavatdi filed her notice of appeal from the costs order on March 20, 2025, more than 60 days after the clerk's service on January 17, but less than 60 days after her notice of entry. Thus, if the documents mailed by the court clerk satisfied rule 8.104(a)(1)(A), then Tansavatdi's notice of appeal was late. But if those documents did not satisfy the rule, then rule 8.104(a)(1)(B) governs and the notice of appeal was timely.

Tansavatdi contends that the documents served by the clerk—the January 17, 2025 minute order and attached certificate of mailing—did not comply with rule 8.104(a)(1)(A). She notes that neither document was a filed-endorsed copy of the order or a notice of entry.

The Supreme Court addressed the requirements of former rule 8.104(a)(1)¹¹ in Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 (Alan). There, the court clerk mailed two documents to the parties in a single envelope. (Id. at p. 898.) The first document was a file-stamped statement of decision denying the motion at issue. The second document was a minute order, which was not file-stamped, reflecting issuance of the statement of decision and the date of service of both documents on the parties. (Ibid.) The Supreme Court found that the documents did not satisfy former rule 8.104(a)(1) because the file-stamped statement of decision was not appealable and the appealable minute order was not file-stamped. (Id. at p. 902.) The court reiterated the rule that “documents mailed by the clerk do not trigger the 60–day period for filing a notice of appeal unless the documents strictly comply” with rule 8.104(a)(1), thus a notice of entry “must bear precisely that title,” and a file-stamped copy of the judgment “must truly be file stamped.” (Id. at pp. 902–903.)

The Supreme Court also rejected the notion that the two documents could be read together for purposes of rule 8.104(a)(1). The court held that rule 8.104(a)(1) “require[s] a single document—either a ‘Notice of Entry’ so entitled or a file-stamped copy of the judgment or appealable order—that is sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed.” (Alan, supra, 40 Cal.4th at p. 905.) However, the court noted, “we see no reason why the clerk could not satisfy the single-document requirement by attaching a certificate of mailing to the file-stamped judgment or appealable order, or to a document entitled ‘Notice of Entry.’ Obviously a document can have multiple pages.” (Ibid.)

The City contends that under Alan, the clerk's service of a minute order that is not filed-endorsed but is attached to a filed-endorsed certificate of mailing satisfied all of the requirements of rule 8.104(a)(1)(A). In other words, we should look to the attached certificate of mailing to satisfy both the requirement that the document be filed-endorsed and that it contain the date of service.¹² We are unaware of any courts that have held that the appealable order itself need not be filed-endorsed, and the City cites none. The language in Alan suggesting that it would satisfy the single-document requirement to attach “a certificate of mailing to the file-stamped judgment or appealable order” still expressly contemplates that the order itself will be filed-endorsed, echoing the language of the rule. (Alan, supra, 40 Cal.4th at p. 905; see also rule 8.104(a)(1)(A) [requiring service of a “filed-endorsed copy of the judgment”]; Huff, supra, 107 Cal.App.5th at p. 979 [deadline not triggered because minute order was not filed-endorsed]; MSY Trading, Inc. v. Saleen Automotive, Inc. (2020) 51 Cal.App.5th 395, 401 [later deadline applied where appealable order served by clerk “was neither file stamped nor entitled ‘notice of entry’ ”].)

We are mindful of the long-standing rule that “ ‘[t]he time of appealability, having jurisdictional consequences, should above all be clear.’ [Citation.] ‘[B]right lines are essential in this area, to avoid both inadvertent forfeiture of the right to appeal and excessive protective appeals by parties afraid they might suffer such a forfeiture.’ [Citation.] ‘ “Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.” ’ ” (Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 649–650.) Based on these principles, courts have long required strict compliance with rule 8.104(a)(1)(A) to trigger the 60–day period for filing a notice of appeal. (See Alan, supra, 40 Cal.4th at p. 902; Wing Inflatables, Inc. v. Certain Underwriters at Lloyd's (2025) 112 Cal.App.5th 1108, 1117 [“the clerk's certificate of service must be attached to, stamped on, or imbedded in the notice of entry or file-endorsed copy of the judgment or appealable order being served” to trigger time to appeal].)

Bearing these guidelines in mind, we find that the documents mailed by the court clerk did not satisfy rule 8.104(a)(1)(A) because they did not include “a filed-endorsed copy” of the appealable order being served. Although Alan advises that we may consider an attached certificate of service for the requisite date of service, we will not extend that holding to also mean that a filed-endorsed certificate of service may satisfy the rule where the appealable order itself was not filed-endorsed. We therefore deny the City's motion to dismiss and proceed to the merits of the appeal.

B. Validity of 998 Offer

Tansavatdi argues that the trial court erred in awarding expert fees as part of the award of costs. She contends the City is not entitled to expert fees because its 998 offer was invalid. Although she asserted multiple grounds for invalidity below, on appeal she argues only that the offer was conditioned on a release of claims beyond the current litigation.

“[W]here the issue is interpretation of a section 998 offer as to undisputed facts, our review is de novo.” (Timed Out LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933, 942; see also Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86 (Ignacio) [“We independently review whether a section 998 settlement offer was valid”].) The burden is on the offering party to demonstrate that the offer is valid under section 998 and we interpret any ambiguity in the offer against its proponent. (Chen v. Interinsurance Exchange of the Automobile Club (2008) 164 Cal.App.4th 117, 122 (Chen); Barella v. Exch. Bank (2000) 84 Cal.App.4th 793, 799.)

It is well established that to be valid a section 998 offer “must not dispose of any claims beyond the claims at issue in the pending lawsuit.” (Chen, supra, 164 Cal.App.4th at p. 121; see also Ignacio, supra, 2 Cal.App.5th at pp. 86–87; Valentino v. Elliott Sav–On Gas, Inc. (1988) 201 Cal.App.3d 692, 699–700 (Valentino).) “That limitation exists because of the difficulty in calculating whether a jury award is more or less favorable than a settlement offer when the jury's award encompasses claims that are not one and the same with those the offer covers.” (Chen, supra, 164 Cal.App.4th at p. 121.)

Tansavatdi contends that the inclusion of a “general release” in the City's 998 offer renders it invalid, relying on Ignacio, supra, 2 Cal.App.5th at page 89. There, the Court of Appeal found a 998 offer was invalid because it included release of “any and all claims” against the releasors “whether now known or unknown, suspected or unsuspected, that have existed or may have existed or which do exist, or which hereinafter can, shall or may exist.” (Ibid.) Other courts have invalidated 998 offers containing similarly broad releases. (See Valentino, supra, 201 Cal.App.3d at p. 699 [offer invalid where it expressly included release of claims outside the litigation]; Chen, supra, 164 Cal.App.4th at p. 122 [offer invalid where it includes release of “all claims”].)

By contrast, in Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899 (Goodstein), the case relied on by the trial court here, the court concluded that a “general release” did not invalidate a 998 offer after construing it to apply only to the litigation before it. (Id. at p. 907; see also Ignacio, supra, 2 Cal.App.5th at p. 89 [“The rule to be taken from Goodstein is not that a ‘general release’ does not invalidate a section 998 offer; the rule is that a release of unknown claims arising only from the claim underlying the litigation itself does not invalidate the offer”].) In Goodstein, the 998 offer stated that it was made “in full settlement of this action” and included the “execution and transmittal of a General Release” by the plaintiff in favor of the defendant. (Id. at p. 905.) Applying the legal principles applicable to contracts generally, the court relied on the language of the offer stating that it was made “in full settlement of this action.” (Id. at p. 907.) Read together with that phrase, the court concluded that the general release was limited to the instant action. (Id. at pp. 907–908.) The court also noted that the release did not expressly include claims outside of the litigation, as distinguished from the invalid offer in Valentino. (Id. at p. 908.)

Similarly, in Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272, the court relied on Goodstein to conclude that a 998 offer requiring the release of “all current claims” was valid when read together with the rest of the offer. That case explained that the “point” of Goodstein is that “general rules of contact construction apply to section 998 offers” and that “one of the cardinal rules of contract construction is that, if possible, the contract [i.e., the 998 offer] should be construed to render it valid and enforceable.” (Ibid.)

We find the language of the 998 offer here is in line with Goodstein and Linthicum. The “general release” did not expressly include claims outside of the litigation, and it did state that the offer was made “in full settlement of this action,” identical to the key language in Goodstein, supra, at page 907. In addition, the offer expressly stated that “the settlement will include all existing and future medical, legal and other liens arising in any way from the subject accident.” Taken together, we conclude that, when read in context and properly construed, the release contained in the section 998 offer included only the claims and parties in the current litigation. As such, we find no error in the trial court's ruling that the proposed release did not invalidate the City's section 998 offer.

DISPOSITION

The judgment is affirmed. The City is entitled to recover its costs on appeal.

FOOTNOTES

1.   Undesignated statutory references are to the Government Code.

2.   Design immunity requires that a public entity 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.’ ” (Tansavatdi I, supra, 14 Cal.5th at p. 653.)

3.   We refer to Jonathan by first name for clarity, as he shares a surname with the plaintiff. No disrespect is intended.

4.   Tansavatdi also sued other governmental entities, the driver of the truck, and the trucking company. Only the City is pertinent to this appeal.

5.   A failure to warn claim may also be subject to signage immunity under section 830.8, which precludes liability “for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices.” As we discuss further below, the “concealed trap” exception to signage immunity allows for liability for injury “ ‘caused by such failure if a signal, sign, marking or device ․ 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; see also Tansavatdi I, supra, 14 Cal.5th at p. 654.) We do not reach signage immunity or the concealed trap exception here, because we conclude the relevant warnings were protected by the City's design immunity.

6.   The trial court made other rulings, less significant to our resolution on appeal. The trial court found that there were triable issues of material of fact as to whether the City had notice of the dangerous condition, as to whether the dangerous condition was a concealed trap, and whether the failure to warn was a substantial factor in causing the injury. In addition, the court found that the City was entitled to signage immunity under section 830.8 “for the decisions made as to what signs to post and where.”

7.   To be sure, the Supreme Court emphasized the “independent, separate, concurring cause” language to make a different point (having to do with substantial factor causation). (Tansavatdi I, supra, 14 Cal.5th at p. 661.) However, the court's focus on independent causation supports the application of design immunity here.

8.   In this case, however, Tansavatdi did not invoke these provisions. She made no attempt to show that design immunity was lost due to a change in physical conditions. So she cannot invoke that remedy here.

9.   Because we affirm summary judgment for the City for this reason, we need not reach the City's alternate grounds for summary judgment—that it is entitled to signage immunity under section 830.8, and that Tansavatdi lacked the evidence to establish the elements of a failure to warn claim.

10.   Undesignated rules references are to the California Rules of Court.

11.   In 2016, the Judicial Council amended rule 8.104(a) to change “file-stamped” to “filed-endorsed.” (See Huff v. Interior Specialists, Inc. (2024) 107 Cal.App.5th 970, 981 (Huff).) “Replacing ‘stamped’ with ‘endorsed’ was a ‘technical’ change made throughout the rules ․ to account for the fact that electronic documents should not require a physical stamp.” (Ibid.) The other amendments to rule 8.104 since Alan are not relevant here.

12.   Tansavatdi asserts that the certificate of mailing was “separately filed” but provides no evidence or explanation to support this statement. She does not directly dispute that the certificate of mailing was attached to the copy of the minute order served by the court clerk. Indeed, Tansavatdi's notice of appeal attached both the minute order and the clerk's certificate of mailing. But, as we explain, even assuming the certificate of mailing was attached, we conclude that the documents did not satisfy rule 8.104(a)(1)(A).

DAUM, J.

We concur: ZUKIN, P. J. MORI, J.