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Wong v. 396 Investment Co.5/17/2005
lside. To hold that the Evidence Code section 1151 remedial measures exclusion was inapplicable because 396 was not the developer that actually undertook the demolition and reconstruction effort would be to deter a defendant such as 396 from settling a case and effectuating the remediation of a potentially dangerous failed slope. Anaheim has not convinced us that 396's role as a facilitator of the remedial measures is insufficient to make section 1151 applicable.
Even were we to agree with Anaheim, however, we would find the exclusion of evidence proper on the alternate ground of Evidence Code section 352. We agree with the trial court's suggestion that to put before the jury the concept of re-grading as evidence of plans that could have been utilized with due care in the first place versus the concept of those plans as evidence of causation would be to confuse the jury. Moreover, we agree that the evidence of subsequent grading plans would be more prejudicial than probative, considering that the re- grading project came into being only after years of litigation. Evidence of the plans that are drawn only after obtaining knowledge of the litigation is of dubious probative value with respect to the type of plans that would be drawn with due care in the absence of that knowledge.
"The trial court is `vested with broad discretion in ruling on the admissibility of evidence.' [Citation.] ` he court's ruling will be upset only if there is a clear showing of an abuse of discretion.' [Citation.] `"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . ." [Citation.]' [Citation.]" (Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at p. 1431.) The court did not abuse its discretion in excluding evidence of the re-development of the slope.
C. DESIGN IMMUNITY
(1) Introduction
As our Supreme Court stated in Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66: "A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures. [Citations.]" (Fn. omitted.) "However, a public entity may avoid such liability by raising the affirmative defense of design immunity. ([Gov. Code,] ยง 830.6.) A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. [Citations.]" (Ibid.)
As the Supreme Court further stated, "Design immunity does not necessarily continue in perpetuity. [Citation.] To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. [Citations.]" (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66.)
Anaheim asserts that the Government Code section 830.6 design immunity provides it with a complet
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