Ronald Wilmot et al vs State of California Department of Transportation (Caltrans) et al

Case Number

22CV00456

Case Type

Hearing Date / Time

Fri, 10/27/2023 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons set forth herein the motion of Defendant CALTRANS for summary judgment is denied

Background:

            Plaintiff Ronald Wilmot was struck by a vehicle driven by Defendant Susan McCurnin on January 3, 2021, while riding a bicycle with friends on the Arroyo Quemado Bridge.  Mr. Wilmot suffered multiple injuries as a result of the accident.  He alleges that the substandard lanes and the absence of a shoulder on the narrow bridge, which required bicyclists to travel in the same lane as motorists, created a dangerous condition. Plaintiff asserts causes of action against the California Department of Transportation (Caltrans) for dangerous condition of public property (3^rd c/a), and negligent act or missions of public entity or public employee (4^th c/a).  He also asserts a cause of action against Susan McCurnin for negligence.  

            Caltrans moves for summary judgment against Plaintiff based on the following grounds, as stated in Caltrans” Notice of Motion:

1. As a matter of law, no dangerous condition is shown because Plaintiff has failed to prove that some physical characteristic of the subject roadway was closely connected to the collision and increased the risk of harm.

2. The accident history at the subject location shows it has been operating safely for drivers and bicyclists exercising reasonable care.

3. Susan McCurnin’s actions alone caused the accident.

4. Even if there were any question as to whether there is a dangerous condition, the State still cannot be held liable because it has design and sign immunity.       

In opposition to the motion Plaintiff argues that triable issues of material fact exist as to:

1. Whether the substandard lanes and absence of a shoulder are physical characteristics of the roadway that increased the risk of harm from third party negligence and created a dangerous condition on the bridge;

2. Whether Caltrans has lost any design immunity it may initially have had as to the bridge;

3. Whether the “concealed trap” exception to Caltrans’ claim of sign immunity applies; and

4. Whether Caltrans is independently liable for a failure to warn, regardless of whether it has design immunity.

Factual background

            The Accident

Plaintiff, then 84 years old, was struck by Ms. McCurnin’s vehicle on the morning of January 3, 2021, while riding his bicycle with three friends on the Arroyo Quemada Bridge on Southbound 101.  [Defendant’s SSUMF (DSSUMF) 1.1; Plaintiff’s SSUMF (PSSUMF)].  The four bicyclists were riding in a single file formation in a portion of the number 2 lane, as close as possible to the concrete wall on the right side of the bridge, when Plaintiff, the last rider in the formation, was struck by Ms. McCurnin [PSSUMF 55, 70, 73, 77]. 

The cyclists were travelling at 10 to 12 mph [PSSUMF 72].  Ms. McCurnin was travelling 70 mph, 5 mph above the posted speed limit of 65 mph, but not faster than the flow of traffic [PSSUMF 62, 8].  A witness, Mr. Utke, who observed the accident in his rear- view mirror, has testified that Ms. McCurnin was travelling straight forward in lane 2 when she struck Plaintiff with her right fender and exterior passenger window [PSSUMF 75].

The Bridge

The bridge was built in 1917.  It is located on a segment of Southbound 101 that is a 4-lane expressway.  [DSSUMF 1.2] The Bridge itself is a narrow, 2 lane roadway.  The lanes are 11 feet wide, with 12 inches between the concrete wall on the right side of the bridge and the closest lane, lane 2. [DSSUMF 1.8].  The posted speed limit on the Bridge is 65 mph [PSSUMF 8]

As a result of the absence of a shoulder, the only place a cyclist can ride on the Bridge is in the traffic lane.  [PSSUMF 12, 31]

Signage on the Bridge

At the time of the accident, signage posted on the approach to the Bridge included the warnings to (1) share the road with bicycles; (2) slow down to 55 mph to negotiate a curve before and after the bridge; (3) not pass on the Bridge; and (4) that the Bridge is narrow.  [DSSUMF 1.6] There was also a sign with flashing beacons, installed in 2013, warning “When Flashing, Bicyclist on Bridge”. [PSSUMF 47].  However, there was no sign warning drivers approaching the Bridge that “bicyclists may share the lane”. [PSSUMF 1, 6]   

Analysis:

1. Standards of review and burden of proof on motions for summary judgment

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact, and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must “show” that either (a) one or more elements of the “cause of action … cannot be established”; or (b) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)  To “show” a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.)

Where a plaintiff has the burden of proof at trial by a preponderance of evidence, a defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857

Once the defendant has met its initial burden of proof the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. (Aguilar, supra, 25 Cal.4th at 857.)   If the plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.)  However, if the defendant fails to meet its initial burden the motion must be denied, and the plaintiff need not make any showing at all. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

The court’s sole function on a motion for summary judgment is issue-finding, not issue-determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) To be “material” for summary judgment purposes, the fact must relate to some claim or defense in issue under the pleadings. Also, it must be in some way essential to the judgment—i.e., if proved, it could change the outcome of the motion. ( Zavala, supra, 58 Cal.App.4th at 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470; see also Cal. Rules of Court, rule 3.1350(a)(2).)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at 850.)  If there is a single such issue, the motion must be denied. (Versa Tech., Inc. v. Superior Court (Motsinger) (1978) 78 Cal.App.3d 237, 240.)

In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences “in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at 843; Ragland v. U.S. Bank Nat’l Ass’n (2012) 8 209 Cal.App.4th 182.

2. Opposition to Caltran’s motion by Susan McCurnin

While neither Caltrans or Ms. McCurnin have filed cross-complaints against each other, and Caltrans has not brought its motion for summary judgment against Ms. McCurnin, she has filed a “joinder” in Plaintiff’s opposition to this motion, a separate Memorandum of Points and Authorities, and her own Separate Statement with Additional Undisputed Material Facts supported by her own evidence.  Ms. McCurnin’s Notice of Joinder states that the reasons for her joinder are that her arguments are “nearly identical to those of the moving party”, which is Caltrans, not Plaintiff.   Caltrans moves to strike her entire opposition for lack of standing and as untimely.  

The Court grants Caltrans motion to strike, and will not consider or address the evidence she presents or the arguments she raises in her opposition.  

3. Triable issues of material fact exist as to whether a dangerous condition of public property existed on the Bridge at the time of the accident

Caltrans argues that Plaintiff cannot establish a cause of action for dangerous condition of public property, because (1) the Bridge does not meet the definition of a dangerous condition of public property under Govt. Code section 830(a) (one that presents “a substantial…risk of injury” to those using it “with due and in a manner in which it is reasonably foreseeable that it will be used”); (2) he cannot show that some physical characteristic of the subject roadway was closely connected to the collision and increased the risk of harm (Cerna v City of Oakland ((2008) 161 Cal. App. 4^th 1340, at 1347-1348); and (3) that third party conduct that is unrelated to the condition of the property does not constitute a dangerous condition.  (Id., at 1348). 

Caltrans relies on certain characteristics of the Bridge to assert that it has no defects (no unusual roadway condition noted by the investigating Officer Guterriez, a straight approach with no blind curve, visible and adequate signage to allow motorists to adjust for bicyclists on the bridge). [DSSUMF 7.1, 7.2, 8.12].  Caltrans also relies on a claim of adequate signage and the absence of any collision history between vehicles and bicyclists on the Bridge in the nine years preceding the accident to argue that it is safe when used by drivers with due care [DSSUMF 9.1].

1. Triable issues of fact exist as to whether the physical characteristics of the Bridge increased the risk of harm

Plaintiff present the following evidence which creates a triable issue of fact as to whether the narrow lanes and the lack of a shoulder on the Bridge are physical defects which created a risk of injury to those using the road with due care:

• The 12-inch space between the wall and the traffic lane requires a bicyclist to travel in the same lane as motorists [PSSUMF  11, Deposition of Officer Jonathan Gutierrez, 4/24/23, 72:17 -25, attached as Exhibit “5” to Declaration of Lawrence D. Marks].

• The 11-foot-wide lanes do not conform to modern design standards, which require a minimum lane width of 12 feet. The 12-inch distance between the concrete wall on the right side of the bridge and lane 2 does not comply with the Highway Design Manual, which requires that the right shoulder adjacent to a freeway lane should be a minimum of 8 feet in width, with a 10-foot shoulder preferred.  While the Bridge is classified as a Class III Bikeway, on which bicyclists may share routes with motor vehicles, it does not conform to the Highway Design Manual for such Bikeways, which requires a minimum separation of 5 feet plus the standard shoulder width between the edge of a bike path and the edge of a parallel road.  [PSSUMF 1, 4, 6,7 Highway Design Manual].

• Plaintiff’s expert, Shakir Shatnawi, Ph.D, P.E., who has 33 years of professional engineering experience in matters relating to roadway design and traffic controls on public property, declares as follows: (1) requiring bicyclists travelling at 10-12 mph to travel in the same lane as motorists travelling up to 70 mph is a safety hazard and increases the risk of accidents.  [PSSUMF 10, 26-- Declaration of Shakir Shatnawi, Ph.D, P.E. parag 35] (2) Drivers approaching the Bridge have a limited ability to see bicyclists on the Bridge in sufficient time to take action, which is a significant danger [PSSUMF 17-Declaration of Shakir Shatnawi, parag. 31]; (3) the lanes meet the definition of a substandard lane under Veh. Code section 2120(a)(3) as “too narrow for a bicycle and vehicle to travel safely side by side within the lane” [PSSUMF 34- Declaration of Shakir Shatnawi, parag. 38]

Caltrans’ Objections 1-35 to Mr. Shatnawi’s declaration as to these issues (unqualified or improper expert opinion, relevance, hearsay, lack of foundation/personal knowledge, secondary evidence rule), are overruled.

2. Triable issues of material fact exist as to the signage was adequate

Plaintiff presents the following evidence which creates a triable issue of fact as to whether the signage present on the day of the accident was adequate to allow drivers to adjust for bicyclists on the Bridge:

• A Caltrans traffic investigation report of the accident, dated 7/9/21, which states that “the curve of the bridge limits the ability of drivers to see bicyclists in time for drivers to take necessary action of moving over or slowing down”. [PSSUMF 1.7]

• Deposition testimony of Ms. McCurnin stating that there was no sign when she was approaching the bridge warning approaching drivers that there could be a bicyclist in the driver’s lane of travel.  [PSSUMF 1.6, Ex. 1 to Declaration of Lawrence Marks, Deposition of Susan McCurnin, 18:23]

• The California Manual on Uniform Traffic Control Devices (MUTCD), 

Section 9B.06, expressly recommends that a “Bicycle May Use Full Lane” sign be used on roadways where there are no bicycle lanes or adjacent shoulders usable by bicycles and where travel lanes are too narrow for bicycles and motor vehicles to operate side by side. [PSSUMF 56-- Declaration of Shakir Shatnawi, Ph.D., parag. 49]

3. Triable issues of material fact exist as to whether the accident history demonstrates a risk of injury

Plaintiff presents evidence which disputes DSSUMF 9.1 and creates a triable issue of material fact as to whether the accident history demonstrates that the conditions of the bridge present a risk of injury when drivers use due care:

• Testimony of regular travelers on the Bridge that they have never seen a bicyclist on the bridge before, suggesting that the lack of accidents between vehicles and bicyclists may be due to the infrequent use of the Bridge by bicyclists [PSSUMF 59-- Deposition of Susan Gail McCurnin, 6/1/23, 32:5-19, 58:3-7, attached as  Exhibit “1” to Declaration of Lawrence D.Marks; PSSUMF 60--Deposition of Officer Jonathan Gutierrez, 4/24/23, 15:23, 8 -25, 79:15-20, 83:5-11, attached as Exhibit  “5” to Declaration of Lawrence D. Marks; PSSUMF 61--Deposition of John Todd Utke, 5/11/23,31:13 – 32:4¸ attached as Exhibit “3” to Declaration of Lawrence D. Marks]

• Evidence that accidents have increased over the years to twice the statewide rate as of 2020, which demonstrates the difficulty drivers have in negotiating the narrow lanes and absence of a shoulder. [PSSUMF 24,25--Declaration of Shakir Shatnawi, Ph.D. P.E., ¶32, 33; Caltrans documents, Accident History, attached as Exhibit “5” to Declaration of Shakir Shatnawi, Ph.D., P.E.]

4. Triable issues of fact exist as to whether Caltrans had notice of the dangerous condition

Although lack of notice is not a ground stated in Caltrans’ Notice of Motion, it argues that Plaintiff cannot establish a cause of action for dangerous condition of public property, because the lack of accident history between bicyclists and motorists demonstrates that it did not have notice of any dangerous condition on the Bridge. Plaintiff creates a triable issue of material fact as to this issue with the following evidence:

• In a 2019 incident there were a series of automobile collisions when drivers slammed on their brakes to avoid a slower moving bicyclist. [PSSUMF 26, 27- Caltrans Traffic Investigation Report, July 25 9, 2021, pg. 2 (Caltrans Bates No. 26 CT001478), attached as Exhibit “4” to Declaration of Shakir Shatnawi, Ph.D., P.E; to Declaration of Shakir Shatnawi, Ph.D., P.E; parag. 34-35]

• Caltrans had long recognized that “due to shoulder widths (12 inches) ... bikes are required to ride with traffic." [PSSUMF 79--Caltrans Project Initiation Form, 7/22/11, attached as Exhibit "3" to the Declaration of Shakir Shatnawi, Ph.D., P.E]

5. Triable issues of fact exist as to causation

Caltrans argues that the negligence of Susan McCurnin was the sole cause of the accident.  In support of this assertion Caltrans relies on the investigation report of Officer Gutierrez.  Plaintiff objects to the admission Officer Gutierrez’ report, citing Robinson v Cable (1961) 55 Cal. 2d 425, 429 (“traffic collision report is inadmissible as evidence as to which driver was more at fault”).  [Plaintiff’s Objections 1-5] Caltrans responds that the report is admissible under Ev. Code section 800, as it is based on matters personally received.  Officer did not personally observe the accident itself, however.  Plaintiff’s Objections 1-5 are therefore sustained.

To the extent that Officer Gutierrez’ deposition testimony is admissible as to the cause of the accident, his conclusions are contradicted by the observations made by Mr. Utke at the time of the accident, that Ms. McCurnin was driving straight forward in her lane when she struck Plaintiff. [PSSUMF  71-- Deposition of John Todd Utke, 5/11/23, 44:2-9, 61:13-17, 61:22-25, attached as Exhibit “3” to Declaration of Lawrence D. Marks.]. 

Moreover, even if Ms. McCurnin was negligent, Caltrans remains liable for a dangerous condition of public property if some physical characteristic of the property exposes the users to increased danger from third party negligence.  Bonanno v Central Contra Costa Transit Authority (20030 30 Cal. 4^th 139, 152.  As discussed above, triable issues of fact exist as to whether the physical characteristics of the Bridge (narrow lanes, absence of a shoulder,) exposed Plaintiff to an increased risk of danger from the negligence of Ms. McCurnin.

       

6. Triable issues of fact exist as to Caltrans’ claim of design immunity 

Caltrans asserts design immunity under Govt. Code section 830.6 as an affirmative defense based on a 1997 Seismic Retrofit Project and a 2011 Caltrans Project to install electronic flashing beacons north of the Bridge to warn drivers of the presence of bicycles on the bridge.  Caltrans asserts that it has established the legal criteria for design immunity, because in approving these Projects the state engineers exercised their discretionary authority in approving the design on which this lawsuit is based (narrow lanes, lack of shoulder); and their approval was reasonable. 5 Witkin, Summary of Al. Law (10^th Ed. 2005 Torts, section 280 pp. 456-457.

Plaintiff does not appear to dispute that the design of the bridge by state engineers in 1917 was reasonably approved and qualified for design immunity, but asserts that Caltrans lost that immunity.  Design immunity is lost where (1) the plan or deign has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition this 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 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.  (Govt. Code 830.6; Cornette v Dept of Transp. (2001) 26 Cal. 4^th 63, 66.) 

Plaintiff presents the following evidence creating triable issues of a material fact as to each of these criteria:

• The volume of traffic using the bridge (48 million vehicles) in the 9 years preceding the accident vastly exceeds the expectations of use when the bridge was approved in 1917; and the average speed of vehicles at that time was 12 mph. [PSSUMF 40-- Declaration of Shakir Shatnawi, Ph.D., P.E., ¶40.]  A large increase in traffic can constitute a change in physical conditions. Baldwin v State of Calif. (1972) 6 Cal. 3d 424, 438. 

• In March 1999, Caltrans proposed and approved a permanent bypass of the Bridge and the closure of the existing bridge for use as a vista point and bike path, finding that the Bridge was in a “state of deterioration” and that the Bridge’s substandard lanes have contributed to accidents. [PSSUMF 37-39-- The Project Scope Summary Report, Caltrans Bates Nos. CT001084 – CT001107, attached as Exhibit “6” to declaration of Declaration of Shakir Shatnawi, Ph.D., P.E.]  

• The plan for the bypass was approved in 1999, which gave Caltrans 24 years to execute the plan. The project was recommended for approval by Caltrans’  Project Manager Habib Sabzehzar, and was approved by Bart Bohn, Caltrans District Director, Central Region, on April 25,1999, and by Jay D. Walter, Caltrans District Director, District 05, on August 22, 1999 [PSSUMF 38, 39--  Project Scope Summary Report, Caltrans Bates Nos. CT001084 –CT001107 , attached as Exhibit “6” to declaration of Declaration of Shakir Shatnawi, Ph.D., P.E.]

Caltrans disputes PSSUMF 37-39 with objections, and argues that a Project Scope Summary Report is not a proposal or an approval, and that the bypass plan was not proposed or approved.  However, Caltrans does not provide any evidence to dispute Plaintiff’s evidence that the project was recommended for approval, and was approved.

Plaintiff presents evidence which disputes Caltrans’ claim that the 1997  Project established design immunity.  Caltrans asserts that in approving the 1997 Seismic Retrofit Project the state engineers upheld the reasonableness of the nonstandard lane widths under a “Design Exception”, and determined that they did not need to be widened.  This is controverted by the following evidence:

• The 1997 Project Scope Summary (Ex 21 to Declaration of Christopher Flores) states:

“One non-standard feature was identified. The bridge is 24 feet

wide. This width does not meet the minimum standard for a 4-1ane

divided highway. The standard for a bridge is 39 feet (10-foot

outside shoulder and 5-foot inside shoulder). A design exception

was discussed. with Ken Hintzman, SLPD coordinator on May 15, 1996

in context with Tim Craggs' December 12, 1994 memorandum. It was

determined that correcting the nonstandard feature is beyond the

project scope and that a formal design exception is not required.

Funds for this upgrade are unavailable through the seismic

program and must be pursued through alternative highway programs. [PSSUMF 44-- Declaration of Shakir Shatnawi, Ph.D., P.E., ¶44.]

            Plaintiff presents further evidence creating a triable issue of material fact as to whether Caltrans’ 2011 Project establishes design immunity:

• The purpose of the 2011 Project “…was to warn drivers of the presence of bicycles on the Bridge.” It was never the purpose of the 2011 Project to consider any separate bike lane of barrier separation on the bridge. [Declaration of Caltrans Senior Electrical Engineer Kenneth Vomaske, ¶ 7].

• The design plan and as built plan for the 2011 Project do not include any engineering design or activity that is closer than 660  feet north of the bridge. Declaration of Shakir Shatnawi, Ph.D., P.E., ¶45.

7. Triable issues of material fact exist as to whether Caltrans has sign immunity

A public entity has immunity for a failure to provide traffic or warning signals 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”.  Govt. Code section 830.8.

A triable issue of material fact exists as to whether this exception to sign immunity for a hidden danger, or a “concealed trap”, applies, based on the following evidence:

• There was no sign on the day of the accident waring drivers approaching the bridge that there is no bike lane on the Bridge, or that bicyclists may be in their lane of travel. [PSSUMF 1.6, Ex. 1 to Declaration of Lawrence Marks, Deposition of Susan McCurnin, 18:23] PSSUMF 46--Declaration of Shakir Shatnawi, Ph.D., P.E., ¶46.]

• A Caltrans traffic investigation report of the accident, dated 7/9/21, states that “the curve of the bridge limits the ability of drivers to see bicyclists in time for drivers to take necessary action of moving over or slowing down”. [PSSUMF 1.7]

Caltrans Objection to this report as inadmissible remedial action is overruled.

• If Ms. McCurnin had seen a sign when approaching the Bridge warning her that “Bicycle may use full lane” she would have approached the Bridge much differently and more cautiously.  [PSSUMF 46--Deposition of Susan Gail McCurnin, 6/1/23, 73:6-17, 74:10-18, 74:20 – 75:5, attached as Exhibit “1” to Declaration of Lawrence D. Marks].

• The California Manual on Uniform Traffic Control Devices (MUTCD), 

Section 9B.06, expressly recommends that a “Bicycle May Use Full Lane” sign be used on roadways where there are no bicycle lanes or adjacent shoulders usable by bicycles and where travel lanes are too narrow for bicycles and motor vehicles to operate side by side. [PSSUMF 56-- Declaration of Shakir Shatnawi, Ph.D., parag. 49]

8. Triable issues of material fact exist as to whether Caltrans is liable for a failure to warn 

Even if Caltrans establishes design immunity “it may nevertheless be liable for failure to warn of this dangerous condition where the failure to warn is negligent and is an independent, separate and concurring cause of the accident.  Tanasavadti v City of Rancho Palos Verdes (2023) 14 Cal. 5^th 639, 647.

Based on the evidence discussed above, there are triable issues of fact as to whether a dangerous condition existed; whether Cal trans was negligent in failing to post a sign warning drivers that that “Bicycle may use full lane” on the approach to the Bridge; and whether this failure was a substantial factor in Ms. McCurnin’s failure to see Plaintiff in sufficient time to avoid hitting him with her vehicle.    

9. Conclusion 

Based on the foregoing evidence and disputed UMFs, the Court finds that triable issues of material fact as to whether Plaintiff can state a cause of action for dangerous condition of public property against Caltrans, and whether Caltrans has a complete defense to this cause of action based on design and/or sign immunity.

Evidentiary issues

The court need only rule on the objections to evidence that it “deems material to its disposition of the motion.”  CCP Section 437(q).  The Court has noted and ruled on the objections to the evidence that it deemed material to the disposition of this motion in the above discussion, and declines to rule on the remaining objections.

Caltrans’ Request for Judicial Notice, RJN No. 1, Michigan Court Rule 8.108, is granted.