Pagan v. City of San Rafael

Filed 3/12/26; Certified for Publication 4/1/26 (order attached)




        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                         DIVISION TWO


 KAYLIN PAGAN, a Minor, etc.,
         Plaintiff and Appellant,
                                                          A171344
 v.
 CITY OF SAN RAFAEL,                                      (Marin County
                                                          Super. Ct. No. CIV1902225)
         Defendant and Respondent.

        On a January afternoon in 2018, a day on which it had rained, 16-year-
old Kaylin Pagan was a passenger in a car driven by her 16-year-old friend,
Lesly Velasquez. They were driving on Lincoln Avenue in the City of San
Rafael, in the vicinity where Lincoln Avenue turns left into another road. As
Velasquez approached the turn the car hydroplaned and crossed over the
double yellow line, and as Velasquez attempted to correct the situation, she
oversteered, lost control, and the car went down a hillside, injuring Pagan.
Through her guardian ad litem, Pagan filed a complaint against several
defendants, including the City, alleging against it a dangerous condition of
public property. The City moved for summary judgment, which the trial
court granted, and entered judgment for the City. Pagan appeals. We affirm.




                                                   1
                                 BACKGROUND
      The General Setting
      In the afternoon of January 4, 2018, 16-year-old Pagan was a passenger
in a car being driven by her friend Velasquez, driving northbound on Lincoln
Avenue in the City of San Rafael (the City), near where Lincoln Avenue
curves to the left and turns into Los Ranchitos Road—a roadway later
described in the accident report as “ ‘a relatively smooth and flat asphalt
paved roadway.’ ” Velasquez was familiar with the road, having driven it
three other times.
      It had rained that day, both girls knew the road was wet, and
Velasquez knew she had to be more careful. The speed limit on Lincoln
Avenue as it approached Los Ranchitos Road was 30 miles per hour.
Velasquez was driving between 30 and 40 miles per hour, and as she
approached the curve, the car hydroplaned because of the wet roadway, and
the back left side of the car crossed the double yellow lines into the
southbound lane. Velasquez turned the car to the right and, as Pagan would
later describe it, “began over-steering to try to correct the car” in order to
avoid an oncoming car in the southbound lane. The car then moved “like a
snake,” i.e., fish-tailed left to right, Velasquez lost control of the car, and it
went off the roadway on the righthand side and down a hillside. Pagan was
injured.
      Velasquez had a provisional driver’s license, and both girls knew they
were not supposed to be in the car together, as both had been specifically
instructed by their parents: Velasquez’s father told her she was not
permitted to drive other students in the car alone; Pagan’s mother told her
not to ride in cars with any teenager who had a provisional driver’s license.
Velasquez was cited for violating the provisional license instructions (Veh.

                                          2
Code, § 12814.6, subd. (b)(1)) and for making an unsafe turn (Veh. Code,
§ 22107). The traffic collision report determined that in addition to the
unsafe turn, Velasquez’s unsafe speed was an associated factor in causing
Velasquez to lose control while navigating the turn.
      The Proceedings Below
      On June 7, 2019, Pagan, through her guardian ad litem, filed a
complaint, which complaint is not in the record. We do not know what
pleadings ensued, but on August 3, 2021, Pagan filed a second amended
complaint (SAC), the operative complaint here. The SAC named as
defendants Velasquez, her father, the City, the County of Marin, and the
State of California. The claim against the City was for dangerous condition,
and as to this Pagan’s brief describes the pertinent allegations against the
City this way:
      “As alleged in the SAC, the subject roadway was defective and
dangerous for numerous reasons, including but not limited to the following:
      “a. There were no warning signs, lights or other mechanisms or devices
alerting motorist traveling northbound on Los Ranchitos Road of the
upcoming sharp left curve in the roadway;
      “b. There were no warning signs, lights or other mechanisms or devices
alerting motorist traveling northbound on Los Ranchitos Road to slow their
vehicle due to a combination of a sharp curve and slippery roadway when wet
conditions exist;
      “c. There were no barriers of any kind; including but not limited to,
curbs, guardrails, fences, walls, or similar devices or materials at the location
where the subject Corolla left the roadway that would prevent a vehicle
traveling northbound on Los Ranchitos Road from leaving the roadway and
then go tumbling and/or rolling down a steep hillside embankment

                                        3
immediately adjacent to the north-northeast side of the Los Ranchitos Road.”
In short, she alleged no warnings of an “upcoming sharp left curve,” no
warnings of a “combination of a sharp curve and slippery roadway,” and “no
barriers.”
      In light of what would become a significant—if not the most
significant—part of Pagan’s position below, we note that nowhere in these
charging allegations is there any references to the roadway itself, no
allegation, as her brief here would come to describe it, of a “severely damaged
and crumbling pavement surface” or to “severe degradation, alligator
cracking, delamination, potholes, settlement and depressions in the wheel
path.”
      The record provided by Pagan contains nothing after the SAC until the
motion involved here, filed some two and a half years later, specifically on
January 26, 2024, when the City filed a motion for summary judgment or, in
the alternative, summary adjudication, seeking summary adjudication of six
specific issues, the fourth of which was “Is Plaintiff’s Cause of Action for
Premises Liability insufficient because the alleged defects are open and
obvious.” The motion was accompanied by a memorandum of points and
authorities, over 200 pages of exhibits and evidence, and a request for judicial
notice.
      On April 30, Pagan filed her opposition, which included a 17-page
memorandum of points and authorities and her evidence, the most significant
of which was the declaration of Shakir Shatnawi, Professional Engineer,
attached to which were four exhibits: his curriculum vitae; the traffic
collision report; what he called the “Freeway Maintenance Agreement”; and




                                        4
his “Expert Technical Report.” Pagan did not oppose the City’s request for
judicial notice or submit any evidentiary objections.1
      As to the arguments made in Pagan’s memorandum, the focus was not
on what Pagan pleaded in her SAC, but rather the roadway. For example,
the “Statement of Facts” begins with this: “The January 4, 2018, rollover
collision occurred because the vehicle in which Ms. Pagan was a passenger
hydroplaned and lost control. The hydroplaning was caused by a severely
damaged and crumbled pavement surface where the pavement completely
lost its structural integrity and created a depression. The vehicle
hydroplaned when it drove over the defective pavement section, plunging into
a steep embankment that had no guardrail.” And the statement went on,
“[a]s of the May 17, 2022, inspection, the condition of the roadway at the
accident site was documented to be poor with severe degradation, alligator
cracking, delamination, potholes, settlement and depressions in the wheel
path especially in the location where the subject vehicle lost control due to
hydroplaning.”
      Pagan’s substantive argument was similar, beginning this way: “Dr.
Shatnawi’s declaration and expert report concludes that the January 4, 2018,
rollover collision occurred because the vehicle in which Ms. Pagan was a
passenger hydroplaned and lost control. The hydroplaning was caused by a
severely damaged and crumbled pavement surface where the pavement
completely lost its structural integrity and created a depression. The vehicle
hydroplaned when it drove over the defective pavement section, plunging into
a steep embankment that had no guardrail. [Citation.] [¶] [¶]

1     The trial court would later chastise Pagan’s counsel for attempting to
assert evidentiary objections in the course of her opposition, which the court
noted was improper.

                                       5
As of the May 17, 2022, inspection, the condition of the roadway at the
accident site was documented to be poor with severe degradation, alligator
cracking, delamination, potholes, settlement and depressions in the wheel
path especially in the location where the subject vehicle lost control due to
hydroplaning. . . .”
      The roadway was also the focus of Dr. Shatnawi’s opinion set forth in
his declaration, as follows:
      “7. As detailed in my Report, the January 4, 2018, rollover collision
occurred because the vehicle in which Ms. Pagan was a passenger
hydroplaned and lost control. The hydroplaning was caused by a severely
damaged and crumbled pavement surface where the pavement completely
lost its structural integrity and created a depression. The vehicle
hydroplaned when it drove over the defective pavement section, plunging into
a steep embankment that had no guardrail. . . . [¶] . . . .
      “9. The City of San Rafael and the County of Marin have failed to
repair the roadway at the accident site. My Report documents that the
roadway at the accident site was defective and in a dangerous condition for
many years. On May 17, 2022, I observed the condition of the roadway at the
accident site to be poor with severe degradation, alligator cracking,
delamination, potholes, settlement and depressions in the wheel path
especially in the location where the subject vehicle lost control due to
hydroplaning.”
      On May 9, the City filed its reply, along with objections to Pagan’s
evidence, specifically objecting to Dr. Shatnawi’s testimony, objections
discussed in more detail below. Suffice to say here that the City filed 45
separate objections directed to Dr. Shatnawi, the first 18 to specific portions
of his declaration itself, the remainder to his report.

                                        6
      The motion came on for hearing on May 13, prior to which the trial
court had issued a tentative ruling granting it. And on May 20, the trial
court entered its order granting the motion, expressly adopting its tentative
ruling, a tentative ruling that was comprehensive indeed, seven single-spaced
pages. The trial court granted summary adjudication as to issue number
four, that the conditions were open and obvious as a matter of law. With
respect to the alleged dangerous condition of failure to warn of the
slipperiness of the roadway, the trial court found that based on the City’s
evidence it was “undisputed[] that it had been raining on the day of the
accident, that both Pagan and Velasquez observed that the surface of the
road to be wet from the rain, and that Velasquez knew that when she was
driving in the rain she had to be more careful than usual.” The trial court
also took judicial notice of the fact that a roadway may be slippery when wet
from rain. Based on this, the trial court found the City had “carried its initial
burden to establish that there is no material dispute as to the fact that the
roadway at issue was obviously wet with rain and obviously carried the
enhanced danger typically associated with a wet road, as compared with a
dry one,” and Pagan presented no evidence to counter the obviousness of the
risk posed by the rain.
      The trial court’s ruling that the conditions were open and notorious
meant that as a matter of law Pagan could not establish liability against the
City. Thus, the trial court did not address issue nos. 1, 2, 3, 5 and 6. The
trial court also did not rule on the City’s evidentiary objections “because they
were not material to its disposition of the motion,” citing to Code of Civil
Procedure section 437c, subdivision (q).2

2   Which provides as follows: “In granting or denying a motion for
summary judgment or summary adjudication, the court need rule only on

                                        7
      Finally, the trial court noted the emphasis in Pagan’s opposition on the
roadway, noting that “Plaintiff spends much of her opposition advocating for
a fourth ‘dangerous condition’—that the roadway at the site of the accident
featured ‘severe degradation, alligator cracking, delamination, potholes,
settlement and depressions in the wheel path[,]’ and that this is what caused
the vehicle to hydroplane. . . . Plaintiff’s SAC does not plead this defect in the
roadway surface as one of the ‘dangerous conditions’ on which her claim is
predicated. It pleads only the lack of any warning of the sharp left curve, the
lack of any warning to slow down under wet conditions to accommodate the
curve and the slipperiness of the roadway, and the lack of a barrier.
      “ ‘The materiality of a disputed fact is measured by the pleadings,
which “set the boundaries of the issues to be resolved at summary
judgment.” ’ (Conroy v. Regents of University of California (2009) 45 Cal.4th
1244, 1250 [quoting Oakland Raiders v. National Football League (2005) 131
Cal.App.4th 621, 648].) As a result, ‘[t]o create a triable issue of material
fact, the opposition evidence must be directed to issues raised by the
pleadings. . . . As a result, Plaintiff cannot defeat summary judgment by
relying-on a new legal theory relating to the cracked surface of the road.”
      Judgment was entered for the City, from which Pagan appealed.
                                 DISCUSSION
      Summary Judgment Law and the Standard of Review
      Code of Civil Procedure section 437c, subdivision (c) provides that
summary judgment is properly granted when there is no triable issue of
material fact and the moving party is entitled to judgment as a matter of law.


those objections to evidence that it deems material to its disposition of the
motion. Objections to evidence that are not ruled on for purposes of the
motion shall be preserved for appellate review.”

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(Code of Civ. Proc., § 437c, subd. (c).) As applicable here, a moving defendant
can meet its burden by demonstrating that “a cause of action has no merit,”
which it can do by showing that “[o]ne or more of the elements of the cause of
action cannot be separately established . . . .” (Code of Civ. Proc., § 437c,
subd. (o)(1); see also Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479,
486–487.) Once a defendant meets this burden, the burden shifts to plaintiff
to show the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).)
      “On appeal ‘[w]e review a grant of summary judgment de novo; we
must decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law. [Citations.]’
(Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we
exercise our independent judgment, and decide whether undisputed facts
have been established that negate plaintiff’s claims. . . .
      “ ‘. . . [W]e accept as true the facts . . . in the evidence of the party
opposing summary judgment and the reasonable inferences that can be
drawn from them.’ [Citation.] And we must ‘ “view the evidence in the light
most favorable to plaintiff[] as the losing part[y]” and “liberally construe
plaintiff[’s] evidentiary submissions and strictly scrutinize defendant’s own
evidence, in order to resolve any evidentiary doubts or ambiguities in
plaintiff[’s] favor.” ’ (McDonald v. Antelope Valley Community College Dist.
(2008) 45 Cal.4th 88, 96–97.)” (Nazir v. United Airlines Inc. (2009) 178
Cal.App.4th 243, 253–254.)
      In addition to the above is the well-recognized admonition, set forth, for
example, in Claudio v. Regents of University of California (2005) 134
Cal.App.4th 224, 230 this way: “On review of a summary judgment, the
appellant has the burden of showing error, even if he did not bear the burden
in the trial court. [Citation.] . . . ‘[D]e novo review does not obligate us to cull

                                          9
the record for the benefit of the appellant in order to attempt to uncover the
requisite triable issues. As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and, therefore,
to point out the triable issues the appellant claims are present by citation to
the record and any supporting authority. In other words, review is limited to
issues which have been adequately raised and briefed.’ (Lewis v. County of
Sacramento (2001) 93 Cal.App.4th 107, 116.)”
        Dangerous Condition of Public Property
        Five years ago we had an appeal that involved a claim of dangerous
condition of public property in the setting where the claimed dangerous
condition was open and obvious, there, the effect of the glare of the morning
sun: Thimon v. City of Newark (2020) 44 Cal.App.5th 745 (Thimon). The
guardian ad litem for two sisters, one of whom was struck in a crosswalk,
sued the City of Newark, which moved for summary judgment. The trial
court granted the motion, and we affirmed, in an opinion whose analysis
began with this exhaustive discussion of the law of dangerous condition of
public property:
        “The governing law . . . is the Government Claims Act (Gov. Code, § 810
et seq. (the Act)).[3] ‘Section 835 . . . of the [Government Claims]
Act . . . prescribes the conditions under which a public entity may be held
liable for injuries caused by a dangerous condition of public property.
[Citation.] Section 835 provides that a public entity may be held liable for
such injuries “if the plaintiff establishes [1] that the property was in a
dangerous condition at the time of the injury, [2] that the injury was


3       All further undesignated statutory references are to the Government
Code.


                                        10
proximately caused by the dangerous condition, [and] [3] that the dangerous
condition created a reasonably foreseeable risk of the kind of injury which
was incurred.’ In addition, the plaintiff must establish [4] that 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) ‘[t]he public entity had . . . notice of the dangerous condition . . . a
sufficient time prior to the injury to have taken measures to protect against
the dangerous condition.’ ” ’ (Cordova v. City of Los Angeles (2015) 61 Cal.4th
1099, 1105 (Cordova).)
      “ ‘The Act defines a “ ‘[d]angerous condition’ ” as “a condition of
property that creates a substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property or adjacent property is used
with due care in a manner in which it is reasonably foreseeable that it will be
used.” (§ 830.) Public property is in a dangerous condition within the
meaning of section 835 if it “is physically damaged, deteriorated, or defective
in such a way as to foreseeably endanger those using the property itself.” ’
(Cordova, supra, 61 Cal.4th at p. 1105.) . . . ‘A dangerous condition of public
property can come in several forms and may be based on an “amalgam” of
factors.’ (Salas v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1069
(Salas).) ‘A condition is not dangerous “if the trial or appellate court, viewing
the evidence most favorably to the plaintiff, determines as a matter of law
that the risk created by the condition was of such a minor, trivial, or
insignificant nature in view of the surrounding circumstances that no
reasonable person would conclude that the condition created a substantial
risk of injury when such property or adjacent property was used with due
care in a manner in which it was reasonably foreseeable that it would be



                                         11
used.” (§ 830.2.)’ (Cordova, at pp. 1104–1105.)” (Thimon, supra, 44
Cal.App.5th at p. 753–754.)
      And we went on to hold: “[A] public entity is not required to assume
that third parties such as Soudachanh [the driver of the car] will act
negligently or recklessly. ‘As one court has observed, any property can be
dangerous if used in a sufficiently improper manner. For this reason, a
public entity is only required to provide roads that are safe for reasonably
foreseeable careful use. [Citation.] “If [ ] it can be shown that the property is
safe when used with due care and that a risk of harm is created only when
foreseeable users fail to exercise due care, then such property is not
‘dangerous’ within the meaning of section 830, subdivision (a).” ’ (Chowdhury
v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.)” (Thimon, supra, 44
Cal.App.5th at pp. 754–755.)
      In short, a public entity is only required to maintain its property in a
way that is safe for “careful use.” (Chowdhury v. City of Los Angeles, supra,
38 Cal.App.4th at p. 1196.) Or, as we put it in Sun v. City of Oakland (2008)
166 Cal.App.4th 1177, 1183: “ ‘If [ ] it can be shown that the property is safe
when used with due care and that a risk of harm is created only when
foreseeable users fail to exercise due care, then such property is not
“dangerous” within the meaning of section 830, subdivision (a)’ [citation.].” ’ ”
(Accord, Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466
[dangerous condition only if the property creates a substantial risk of injury
when used with due care].)
      We said in Thimon that “ ‘Ordinarily, the existence of a dangerous
condition is a question of fact, but whether there is a dangerous condition
may be resolved as a question of law if reasonable minds can come to but one
conclusion. [Citation.] “[I]t is for the court to determine whether, as a matter

                                       12
of law, a given defect is not dangerous. This is to guarantee that cities do not
become insurers against the injuries arising from trivial defects.” ’
[Citation.]” (Thimon, supra, 44 Cal.App.5th at p. 755.)
      Numerous decisions have affirmed summary judgment for various
public entities holding as a matter of law that no dangerous condition was
demonstrated, including opinions from this court (see, e.g., Thimon, supra, 44
Cal.App.5th at p. 755 and Sun v. City of Oakland, supra, 166 Cal.App.4th at
p. 1197), and from our colleagues. (See, e.g., Cerna v. City of Oakland (2008)
161 Cal.App.4th 1340, 1348–1352 (Cerna).) Here we add another.
      Summary Judgment Was Properly Granted
      To allege a claim for dangerous condition, plaintiff must “specify in
what manner the condition constituted a dangerous condition.” (Cerna,
supra, 161 Cal.App.4th at pp. 1347–1348; Mixon v. Pacific Gas & Electric Co.
(2012) 207 Cal.App.4th 124, 131.) We have quoted above Pagan’s own
description of what was alleged. It did not include the so-called defective
roadway—and thus cannot be the basis for Pagan to demonstrate a defective
condition.
      A summary judgment motion must show that the “material facts” are
undisputed. (Code Civ. Proc., § 437c, subd. (b)(1).) Thus, the pleadings serve
as the outer measure of materiality in a summary judgment motion, and the
motion may not be granted or denied on issues not raised by the pleadings.
(Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; see Nieto v.
Blue Shield of Calif. Life and Health Ins. Co. (2010) 181 Cal.App.4th 60, 74
[“the pleadings determine the scope of relevant issues on a summary
judgment motion”]; Hutton v. Fidelity National Title Co. (2013) 213
Cal.App.4th 486, 493 [summary judgment defendant need only “negate
plaintiff’s theories of liability as alleged in the complaint; that is, a moving

                                        13
party need not refute liability on some theoretical possibility not included in
the pleadings,” original italics].)
      Pagan does not meaningfully attempt to argue that the supposedly
damaged roadway was alleged in her SAC. Nor could she, as her attorney
admitted at the hearing below, where as he described it Dr. Shatnawi’s
opinion is that “this road is defective for multiple different reasons. Most of
them are in the amended complaint, and one of them is not.”4 (Italics added.)
      We thus turn to the items alleged in the SAC, no warning signs, no
guardrails, and Pagan’s positions on them, all based on Dr. Shatnawi’s
opinion. But before doing so, we offer some comments on Pagan’s briefing,
particularly as it pertains to the evidence she claims supports her position.
Pagan’s opening brief lists these citations for claimed supporting evidence:
“AA 404–408, 410–414, 445–466.” The first pages are to Pagan’s separate
statement; the second to her appendix of evidence; and the third to Dr.
Shatnawi’s report. This same reference is repeated over 30 times in the brief
in claimed support of all her arguments. The same 32 pages. It is manifestly
improper.
      As the leading appellate commentary describes the law: “Any
statement in a brief concerning matters in the appellate record—whether


4     While Dr. Shatnawi’s views cannot be considered, we note that they
would not assist Pagan in any event. For example, Dr. Shatnawi inserts
Google images into his report claiming to show that the alleged “severe
degradation” had existed for years, but never explains how the photos depict
degradation of the road, let alone severe degradation. Beyond this, there is
no evidence that there was any depression, settlement, or pothole in the
roadway on the day of the accident. Finally, Dr. Shatnawi never connects his
assumed facts that Velasquez drove over a depression with his ultimate
conclusion that this is what caused the car to hydroplane, never explaining
how a car can “hydroplane” due to a pothole or depression.

                                       14
factual or procedural and no matter where in the brief the reference occurs—
must be supported by a citation to the record. The purpose of this
requirement is to enable appellate justices and staff attorneys to locate
relevant portions of the record quickly. [Cal. Rules of Court, rule]
8.204(a)(1)(C); [citation]; Helm v. City of Los Angeles (2024) 101 Cal.App.5th
1219, 1228–1230, fn. 5–7—‘It is not our role to scour the record to find
evidence to support [appellant’s] contention or create a triable issue of fact.
That burden is [appellant’s] alone’].” (Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2025) ¶ 9:36 (Eisenberg).)
      And the next section elaborates with this specificity: “Form of
citation: Record citations must refer to the appropriate transcript, its
volume number and the exact page number (e.g., ‘I RT 25’). [Cal. Rules of
Court, rule] 8.204(a)(1)(C); Nazari v. Ayrapetyan (2009) 171 [Cal.App.]4th
690, 694, fn. 1—‘Plaintiff’s single citation to a reporter’s transcript with block
page references, for example, “RT Vol. 6, 2480-2501,” frustrates this court’s
ability to evaluate which facts a party believes support his position’
(emphasis in original).” (Eisenberg, supra, ¶ 9:37, italics omitted.) In short,
Pagan’s brief does not comply with the law.
      Despite this, we will nevertheless address Pagan’s arguments, all of
which rely on Dr. Shatnawi. And conclude that such reliance is misplaced, in
light of the law regarding expert testimony.
      A declaration stating an expert’s opinion may be admissible to defeat a
summary judgment motion, but only if the requirements for admissibility are
established in the same manner as if the declarant were testifying at trial.
(See Towns v. Davidson (2007) 147 Cal.App.4th 461, 472; Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.5th 536, 541.) And Evidence Code section 801,
subdivision (b) restricts expert testimony to opinions based on

                                        15
“matter . . . perceived by or personally known to the witness” when that
matter “is of a type that reasonably may be relied upon by an expert in
forming an opinion . . .” An “ ‘expert opinion based on speculation or
conjecture is inadmissible.’ ” (Mitchell v. United National Ins. Co. (2005) 127
Cal.App.4th 457, 478, italics added.)
        As mentioned above, the City’s reply papers on the motion included 45
objections to Dr. Shatnawi’s testimony, 18 to his declaration, the balance to
his report. The 45 objections were precise and specific, each objection setting
forth the basis—perhaps, more accurately, bases—of each objection, running
the gamut, from hearsay, to lack of foundation, speculation, conjecture, no
personal knowledge—many of which are, as will be seen, well-taken.
        The facts upon which Dr. Shatnawi’s opinions were based consisted of:
the traffic collision report; the CalTrans Agreement; historical Google images;
a site inspection performed in May 2022, almost 4 and 1/2 years after the
accident; a California Manual on Uniform Traffic Control Devices
(“MUTCD”), which is referenced but not offered as evidence; and a Caltrans
Traffic Safety Systems Guidance, which is also referenced but not offered as
evidence.
        Turning first to Dr. Shatnawi’s opinion as to a warning sign before the
curve, his opinion is based on the MUTCD, generalized statements such as
“[c]urve warning signs and advisory speed signs are traffic control devices
that are necessary to protect the traveling public,” and a few assumptions of
fact.
        Dr. Shatnawi relies on the MUTCD for his opinions that a warning was
“required” for the curve, but the MUTCD is not offered as evidence. Instead,
Dr. Shatnawi includes what purports to be excerpts from the MUTCD, in
fact, excerpts from at least four different versions of the MUTCD. These

                                        16
excerpts are hearsay, and Dr. Shatnawi does not establish that this hearsay
is the type ordinarily relied on by experts in his field. (Evid. Code, § 801,
subd. (b).) Nor can he, since he does not provide any detail about the
MUTCD(s).5
      More fundamentally, the excerpts provided by Dr. Shatnawi do not
support the opinion. As one example, his report states that “[a]s can be seen
in Figure 19 a proper sign is necessary per the [Manual].” But Figure 19
merely provides “Example warning signs for a horizontal curve,” and an
example of warning sign that can be used for a turn is not the same as
requiring a warning sign for a turn. Finally, and as the trial court noted, any
opinion by Dr. Shatnawi about what is “required” by the MUTCD is
inadmissible expert opinion on questions of law or legal conclusions.
      Dr. Shatnawi asserts that the City removed signs warning of the curve
during the construction of a bike path, which Pagan uses as evidence that
warning signs were required. However, Dr. Shatnawi has no foundation to
make such statements, as he has no personal knowledge as to who removed
signs, when they did so, or why.



5     The trial court was critical of the MUTCD, saying this: “ ‘CA MUTCD’
refers to the California Manual on Uniform Traffic Control Devices. (See
Shatnawi Dec., Ex. 4, p. 4.) Nowhere in her moving papers does Plaintiff
explain what this document is, who issued it, or what, if any, legal effect it
has. To the extent the CA MUTCD has binding legal effect, any statements
from Mr. Shatnawi, Plaintiff’s expert, about what it ‘requires’ are
inadmissible because ‘an expert is not permitted to give an opinion on
questions of law or legal conclusions.’ (City of Rocklin v. Legacy Family
Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 728.) Mr. Shatnawi’s
report describes the CA MUTCD as setting forth ‘standards,’ making it
unclear that this document ‘requires’ anything. (Shatnawi Dec., Ex. 4, p.
14.)”

                                       17
      Dr. Shatnawi opines that the City was responsible for maintenance of
the roadway at the accident site pursuant to a “Freeway Maintenance
Agreement”, which Pagan cites as evidence that the City should have
repaired the allegedly deteriorated roadway. However, Dr. Shatnawi has no
foundation to authenticate an agreement between the City and the State of
California, let alone to opine about what this document does or does not
obligate the City to do.
      Finally, as to the lack of a guardrail, Dr. Shatnawi opines that the lack
of a guardrail was a “factor[] that caused the severe crash . . . .” To begin
with, Dr. Shatnawi never explains how the lack of a guardrail caused the
crash, when the evidence is that Velasquez had already lost control of her
vehicle before encountering the location where a guardrail would be placed.
But beyond this, Dr. Shatnawi purports to quote excerpts from the
“Guardrail Installation Criteria” apparently found in a Caltrans 2017 Traffic
Safety Systems Guidance, which is not attached to his report and is therefore
hearsay. (Evid. Code, § 801, subd. (b).) Regardless, Dr. Shatnawi notes that
the installation criteria “provide criteria about when it [is] safer to install a
guardrail” and then claims that, in this case, “it is safer to place a guardrail.”
Liability for dangerous condition cannot be premised on a claim that the
property could have been made safer, as we ourselves have held. (See Belcher
v. City and County of San Francisco (1945) 69 Cal.App.2d 457, 463 [“liability
is not to be fastened upon a municipality merely because it may appear that
certain property, in nowise dangerous either in its construction or intended
use, could possibly be made safer by other means”].)
      Pagan asserts that there was a “concealed trap.” To no avail. As our
colleagues in Division Four have held, there in a design defect case, the
concealed trap principle is inapplicable where the alleged dangers are

                                        18
reasonably apparent and would have been anticipated by a person exercising
due care. (Sutton v. Golden Gate Bridge, Highway & Transportation Dist.
(1998) 68 Cal.App.4th 1149, 1165.) And Pagan presented no evidence of a
concealed trap for a person operating a vehicle with due care. As noted, the
roadway was flat and “relatively smooth.” Other than a general allegation
that the curve was “sharp” and the roadway “slippery” from the rain, there is
no evidence that anything about the curve was unusual, deceptive, or
concealed from motorists. Velasquez herself admitted that she had
previously driven in that exact location three times and thus was aware of
the curve; she was also aware that she should drive with more caution when
it is raining. There are no allegations, let alone evidence, that Velasquez
could not see the curve in time to slow down, that vegetation or any other
object obscured her view of the curve, or that the curve was sharper than
permitted for the conditions.
      Pagan claims the alleged dangerous condition was not obvious because
“[r]oadway curves are considered locations for serious crashes that often
result in injuries and death,” asserts that proper signage warning of the
curve was required, and then claims that the City removed signs that had
previously been in place. But the sign issue has no bearing on whether the
curve was obvious to northbound drivers exercising due care. If a condition is
open and obvious, there is no duty to warn because the condition itself serves
as a warning.
      In Thimon we affirmed a summary judgment granted in the face of an
expert opinion, doing so in language that can be said to be equally applicable
here. We noted that the expert’s opinion there did not create a triable issue
of material fact for several reasons: “[f]oremost among them . . . that there is
no evidence in the record to support these conclusory opinions. Also

                                       19
problematic is the expert’s failure to address the fact that, as pointed out by
Newark’s expert, with exceptions not relevant here, the provisions in the
manuals he relied on provide only ‘general guidance’; they do not set forth
hard and fast rules for marking crosswalks but instead encourage
government personnel to consider a list of factors in exercising engineering
discretion to determine an intersection’s design.” (Thimon, supra, 44
Cal.App.5th at p. 759.)
        The same is true here, as it has been in numerous other cases. (See,
e.g., Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 484–485
[finding trivial defect as a matter of law despite expert’s declaration that a
dangerous condition existed]; McKray v. State of California (1977) 74
Cal.App.3d 59, 62–63; Davis v. City of Pasadena (1996) 42 Cal.App.4th 701,
705.)
                                DISPOSITION
        The judgment is affirmed. The City shall recover its costs on appeal.




                                       20
                     RICHMAN, ACTING P. J.




We concur.




MILLER, J.




DESAUTELS, J.




(A171344N)




                21
Filed 4/1/26
                      CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                                    DIVISION TWO

 KAYLIN PAGAN, a Minor, etc.,
         Plaintiff and Appellant,
                                              A171344
 v.
 CITY OF SAN RAFAEL,                          (Marin County
                                              Super. Ct. No. CIV1902225)
         Defendant and Respondent.
                                             ORDER CERTIFYING OPINION
                                             FOR PUBLICATION



THE COURT:
       The opinion in the above-entitled matter, filed on March 12, 2026, was
not certified for publication in the Official Reports. After the court’s review of
a request under California Rules of Court, rule 8.1120, and good cause
established under rule 8.1105, it is hereby ordered that the opinion should be
published in the Official Reports.




Dated:                          _______________________________
                                       Stewart, P. J.




                                         1
Trial Court:      Marin County Superior Court

Trial Judge:      Stephen P. Freccero

Counsel:

Law Offices of Ira Leshin, Ira Leshin for Plaintiff and Appellant.

Orbach Huff & Henderson, Kevin E. Gilbert, Kelly Houle-Sandoval for
Defendant and Respondent.




                                        2