He v. Metropolitan Transit System CA4/1

Filed 10/26/26 He v. Metropolitan Transit System CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA SHUXIA HE, Individually and as D085566 Successor in Interest, etc. et al., Plaintiffs and Appellants, (Super. Ct. No. 37-2021- v. 00002319-CU-PO-CTL) METROPOLITAN TRANSIT SYSTEM et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Strongin, LLP, Eric B. Strongin and Daniel J. Libbey for Plaintiffs and Appellants. Hanson Bridgett LLP, Alexandra V. Atencio, Patrick Burns and Breana L. Burgos for Defendant and Respondent Metropolitan Transit System. Sims Law Firm, Michael E. Murphy, Jerome D. Rybarczyk and Selim Mounedji for Defendant and Respondent North County Transit District.  Bremer Whyte Brown & O’Meara and JohnPaul Salem for Defendant and Respondent San Diego Association of Governments. Wentian Zheng was struck and killed by a moving Amtrak train just after 4:00 p.m. on February 18, 2020. Zheng had just exited a trolley operated by the Metropolitan Transit System (MTS) and had attempted to cross the parallel tracks utilized by Amtrak at the Washington Street railroad station (the Washington Street Station). Zheng’s wife, Shuxia He, and daughters, Lillian Zheng, Lihong Zheng, and Lihua Zheng (collectively, Appellants or the Zhengs), sued MTS, North County Transit District (NCTD), and the San Diego Association of Governments (SANDAG) (collectively, Respondents).1 They asserted claims for dangerous condition of public property (Gov. Code § 835)2 and negligence (§ 815.2) against Respondents, based primarily on the layout of the Washington Street Station and the presence of a masonry wall separating the two sets of parallel tracks. The trial court granted motions for summary judgment filed by each of the Respondents based on governmental immunity. The Zhengs appeal and assert that the grant of summary judgment was error and that triable issues of material fact remain. On our own independent review, we affirm the summary judgments. 1 The Zhengs also asserted causes of action for negligence and wrongful death against other defendants who were subsequently dismissed. Those claims are not at issue in this appeal. 2 Further unspecified statutory references are to the Government Code. 2  I. FACTUAL AND PROCEDURAL BACKGROUND A. The Complaint3 In their complaint (the Complaint), the Zhengs allege: “On February 18, 2020, Decedent was struck and killed by a Pacific Surfliner Amtrak train near the Washington Street trolley station (the ‘Incident’).[4] Plaintiff Shuxia He, Decedent’s wife of 55 years, was only a few feet from her husband when he was tragically killed by the train and witnessed the events.” “[A]t approximately 4:10 p.m., Decedent and his wife . . . disembarked a[n] MTS trolley at the Washington Street Station, located at 2136 West Washington Street, San Diego, California 92110 (the ‘Subject Location’).”[5] “After exiting the trolley, Decedent and his wife walked south on the pedestrian sidewalk of the Washington Street Station, next to a wall which completely obstructed their view of the Amtrak tracks on their right. The couple were making their way to the bus stop located west of the Washington Street Station, at the intersection of Washington Street and Pacific Coast Highway, to board a bus and return to their home.” “When Decedent reached the end of the wall, he turned right (west) toward the bus stop, and was immediately hit by southbound Amtrak train #A578.” According to the Complaint, “At the time of the Incident, the Subject Location had numerous dangerous conditions,” including: 3 The Complaint notes that Appellants timely served written government claims, which were rejected, before proceeding to the Complaint. Appellants’ compliance with this process is not at issue on appeal. 4 We will adopt this definition of “the Incident” throughout our opinion. 5 We will adopt this definition of “Subject Location” throughout our opinion. 3 “A wall which obstructed pedestrians’ ability to realize, understand and comprehend the danger of southbound Amtrak trains immediately to their right (west) of the wall; “A wall which was constructed only a few feet from the southbound Amtrak tracks such that it created an extremely dangerous condition for pedestrians proceeding right (west) at the end of the wall; “No signage or other warnings to alert pedestrians that active southbound Amtrak train tracks were only a few feet to the right (west) of the wall; “Insufficient signage or warnings to alert pedestrians that active Amtrak train tracks were only a few feet to the right (west) of the wall; “No signage or other warnings that pedestrians should look both ways before turning right (west) at the end of the wall running along the pedestrian sidewalk; “Insufficient signage or other warnings that pedestrians should look both ways before turning right (west) at the end of the wall running along the pedestrian sidewalk; “No pavement markings on the pedestrian sidewalk warning pedestrians to watch for moving trains at the end of the wall before proceeding right (west) at the end of the wall; “Insufficient pavement markings on the pedestrian sidewalk warning pedestrians to watch for moving trains at the end of the wall before proceeding right (west) at the end of the wall; “No safety measures to prevent or impede pedestrians from unknowingly stepping into the path of a southbound Amtrak train, including but not limited to a physical barrier and/or gate; and “Signage, lights, and bells which confused and misled pedestrians regarding the areas of danger due to moving trains and vehicles, thereby significantly increasing the risk of serious injury or death.” 4  The Zhengs alleged that there had been other deaths at the Subject Location and that Respondents “did nothing to improve the dangerous conditions.” In addition, they alleged that there was a “Look Both Ways” sign and a “Watch For Moving Trains” pavement marking at the Subject Location that were removed sometime after April 2014 and before the Incident. Finally, they alleged that Respondents were common carriers with heightened duties; that they violated “various government safety regulations”; and that they had actual or constructive notice of the dangerous conditions at a sufficient time period prior to the Incident to have taken measures to protect against the dangerous condition. Based on these allegations, the Zhengs asserted causes of action for dangerous condition of public property (§ 835) and negligence (§ 815.2). The allegations in the Complaint supporting each cause of action are nearly identical and each includes the same list of alleged dangerous conditions created by the design, construction, maintenance, and repair of the Washington Street Station. B. The Motions for Summary Judgment MTS, NCTD, and SANDAG each filed a motion for summary judgment. In its motion, MTS summarized the Zhengs’ claims as: “[T]he Washington Street Station/Crossing constitutes a dangerous condition of public property for the following reasons: (1) a concrete wall separating the light-rail/heavy- rail tracks in the Washington Street Station presents a visual obstruction to the heavy-rail tracks to persons in the Station; (2) absent and/or inadequate signage to alert pedestrians of active heavy-rail tracks immediately west of the Station; (3) absence of signage/warnings that pedestrians should ‘look both ways’ before turning west at the end of the wall on the public sidewalk; (4) absence of pavement markings on the public sidewalk warning pedestrians to ‘watch for moving trains’; and (5) absence of safety devices, including physical barriers and/or gates to 5  prevent or impede pedestrians from stepping into the path of a southbound heavy-rail train.” MTS, NCTD, and SANDAG each asserted that they could not be liable for either cause of action because they were entitled to design immunity under section 830.6. In addition, MTS argued that section 835 also precluded liability (i.e. provided a different form of immunity) because there was no evidence that it had actual or constructive notice of any alleged dangerous condition at the Washington Street Station before the Incident. In support of the design immunity contention, MTS asserted that it is subject to the regulations of the [CPUC], “the regulatory agency designated by the Legislature to adopt rules and regulations regarding the procedures for all rail transit systems in California.” MTS explained that it had submitted an application to the CPUC for the “Old Town LRT [light rail] Extension Project”—which included the addition of the light rail tracks at the Washington Street Station—and that the application included “plan view drawings which had been prepared considered and approved by a certified design engineer and [Metropolitan Transit Development Board (MTDB)] Project Engineer (David Ragland).” The CPUC issued a written decision authorizing the construction of the station per the design plans and noted therein that the plans were reviewed by the CPUC’s safety division traffic engineering staff. After completion of the project, “the plans were stamped with a certified engineer’s as-built stamp,” certifying that the Washington Street Station was “built in compliance with [the] pre-approved plans.” Thus, MTS asserted, the design was both reasonable and approved by qualified engineers. NCTD asserted that it had no authority to install safety devices because the CPUC had exclusive authority, and NCTD did not maintain control of the sidewalk or surrounding area. In response to a contention from 6 the Zhengs that it should have changed the manner in which trains use the parallel heavy rail tracks (i.e., the direction of travel on the easternmost track), NCTD asserted that its “decision to have southbound trains use the easternmost track and northbound trains use the westernmost track where there are parallel tracks, implemented in approximately 2018, [was] reasonable and based on station and platform placement along the coastal corridor.” SANDAG explained that it had completed certain upgrades to underground conduit at the Washington Street Station 18 months and 10 months before the Incident. Those upgrades required demolishing and re- pouring a slab of sidewalk. SANDAG asserted that all its repairs were done according to the approved as-built design plans. Like MTS, SANDAG relied on the as-built drawings signed by registered engineer, Mark Randall, as well as hardscape plans that were designed, drafted, reviewed, checked, and approved by “the competent engineers at Estrada Land Planning.” They noted that those plans did not call for any pavement or sidewalk markings at the Subject Location. C. Evidence Submitted in Support of the Motions for Summary Judgment 1. MTS MTS supported its motion with declarations from civil engineer, Heather Furey, and system safety manager, Fabeann Soberg; copies of its application to CPUC and CPUC’s written decision approving the Old Town LRT Extension—including the addition of the Washington Street Station; various design documents detailing the approved design; and excerpts from the depositions of Appellant Shuxia He and Yuliang Xiao, another individual that was present on the day of the Incident. MTS also provided videos of the Incident and surrounding area taken from various cameras located at the 7 Washington Street trolley station, on the trolley, and on a bus that was waiting across the street, along with declarations authenticating each. a. Declaration of Heather Furey Furey’s declaration provided background on MTS and the Old Town LRT Extension project that resulted in the addition of the Washington Street Station. Fury explained that the MTDB was MTS’s predecessor and existed under the Public Utilities Code. Some of MTDB’s functions merged into SANDAG, the regional metropolitan planning organization, in or around 2002, and the remaining MTDB entity changed its name to MTS in 2005. Before that occurred, in 1991, MTDB acquired the Old Town Corridor right-of-way, including the land underlying the Washington Street Station, from the Atchison, Topeka, and Sante Fe Railroad Company (AT&SF). “On March 25, 1993, MTDB filed Application No. 93-03-062 with the CPUC for authority to construct the light rail system, known as the Old Town LRT Extension Project . . . along parts of the recently purchased AT&SF right-of- way . . . . The project included the construction of two (2) light rail tracks to parallel existing freight/intercity/commuter rail tracks utilized by AT&SF freight, Amtrak and future commuter rail agencies,” as well as several crossings, including the one at the Subject Location. Relevant to the issues raised in this case, Furey explained that “[p]er design specifications, the LRT right-of-way and track is adjacent to and parallel with freight/Amtrak/intercity heavy rail right-of-way and track, with both crossing the subject streets at-grade. After review, consideration and engineering analysis, MTDB determined it is not feasible to grade separate the crossings because of the proximity to adjacent crossings, lack of sufficient right-of-way, and the cost-benefit ratio associated with available funding [for] at-grade crossings. Additionally, parallel LRT and heavy rail tracks are the 8 most financially/environmentally acceptable choices and is consistent with the open-access concept of the light rail transit.”6 On June 22, 1994, CPUC issued a written decision indicating that it had reviewed and approved MTDB’s proposal for the Old Town LRT Extension Project. All safety and warning devices and signals to be installed at the Washington Street Station and crossing “were subject to CPUC General Order 75–C (superseded by 75-D; effective Sept. 22, 2006.) Pursuant to Section 11 of General Order 75-D, ‘[t]he removal, reduction, addition, or change in type of warning devices at each public at-grade crossing [ ] shall not be permitted unless authorized by the Commission.’ ” MTDB completed the work in June 1996, and received authorization from CPUC to commence service that same month. In December 1996, MTDB requested authorization from CPUC to relocate a crossing gate and cantilever in the northeast corner at Washington Street for crossing safety. CPUC approved the request and, in its written decision dated April 23, 1997 specified that “protections at Washington Street at-grade crossing shall be two Standard No. 9-A automatic gate-type signals with cantilevers, and three Standard No. 9 flashing light-type signals (GO 75-C).” Neither MTDB, CPUC, nor any other entity has requested or issued any other application for change to the safety or warning devices at the Washington Street crossing. b. Declaration of Fabeann Soberg Fabeann Soberg, a system safety manager for MTS, declared: “I have reviewed the relevant MTS business records relating to accidents/incidents occurring at the Washington Street Station/Crossing for the eighteen (18) 6 “An ‘at-grade’ crossing is one that physically crosses the road at street level. A ‘grade-separated’ crossing physically separates the train from traffic by utilizing an overpass or underpass.” (Santa Clara Valley Transportation Authority v. Public Utilities Com. (2004) 124 Cal.App.4th 346, 351, fn. 3.) 9 year period in which MTS has been designated to investigate accidents at this location. I am unaware of and have not identified any heavy-rail versus pedestrian accidents occurring at the Washington Street Crossing prior to the subject date of loss on February 18, 2020, where a passenger alighting from a light rail train at the Washington Street Station was struck by a heavy rail train operating on the adjacent tracks west of the Station.” 2. NCTD NCTD supported its motion for summary judgment with discovery responses from the Zhengs; excerpts from the depositions of Appellant Shuxia He and Yuliang Xiao; and declarations from NCTD Signal Manager, Brian Shultz, and NCTD Director of Engineering, Scott Shroyer. a. Declaration of Brian Shultz Shultz described the layout of the Washington Street Station. He explained that “[t]here are four north/south tracks at the Washington Street grade crossing. The Washington Street trolley station is located just north of the grade crossing. There is a safety wall between the Washington Street trolley station and the two NCTD heavy rail tracks on the west side of the safety wall. The trolley station is on the east side of the safety wall, and has two light rail tracks for Metropolitan Transit System (MTS) trolleys, all of which stop at the station. The south end of the trolley station platform ends at the Washington Street public grade crossing sidewalk, which runs east/west over all four tracks. Amtrak, Coaster and BNSF operate through trains on the two sets of tracks on the west side of the wall.” Shultz explained further: “At the time of the February 18, 2020 accident, the Washington Street public grade crossing was equipped with the following warning devices: California Public Utilities Commission (CPUC) approved warning devices including multiple sets of automatic flashing red lights, multiple electronic bells, multiple gates, multiple cantilever structures 10 with more flashing red lights, pavement markings, railroad cross bucks, number of tracks signs, and tactile strips at the corners, that were designed to detect trains and trolleys approaching the grade crossing and provide more than 30 seconds of warning that a train may be approaching. True and correct copies of three annotated photographs showing the warning devices at the Washington Street grade crossing are attached to this declaration as Exhibits A–C.” Exhibits A and C are reproduced below.7 Exhibit A: 7 Shultz does not state the date upon which these photos were taken. We note that there appear to be words stamped on a yellow background on the sidewalk. As discussed herein, the parties agree that those stamps were not present on the day of the accident. However, they also do not dispute that the annotated warning devices were present. 11 Exhibit C: Shultz stated the warning devices seen in these images “were in accord with accepted industry standards for the given existing local conditions, in accordance with CPUC General Order 75-D, Section 3. The warning devices complied in every respect with CPUC General Order 75-D.” “Pursuant to the provisions of an Amended and Shared Use Agreement, dated June 21, 2016, MTS is responsible for maintenance and repair of signal and gate warning devices for the light rail tracks to the east of the safety wall, and NCTD is responsible for maintenance and repair of signal and gate warning devices for the heavy rail tracks to the west of the safety wall. MTS, as the owner and operator of the trolley station, is responsible for those premises. NCTD does not own, operate, control or maintain the trolley station.” NCTD also “does not control or maintain the sidewalk” that runs between the crossing. 12  Shultz explained that “NCTD has reported accidents at the Washington Street grade crossing to both the Federal Railroad Administration and the CPUC since at least 1994.” He reviewed the records from 1994 to February 18, 2020, and found “no record indicating that a westbound pedestrian was struck by a southbound train on one of the heavy rail tracks. Furthermore, [Shultz] found no record indicating that any person walking from the trolley platform was struck by a train on the heavy rail tracks.” b. Declaration of Scott Shroyer Shroyer explained, “Since 1995, NCTD’s COASTER commuter train has operated north/south train service between the Oceanside Transit Center and the Santa Fe Depot in downtown San Diego. [¶ . . . ¶] Approximately 75% of the COASTER route consists [of] double-tracked segments where there are two parallel tracks. [¶ . . . ¶] There is no federal rule, regulation or standard that requires trains such as the COASTER commuter train to use a specific track in areas where there are two or more parallel tracks (unlike motor vehicles, which are required to drive on the right side of the road). [¶] Operating practices on the COASTER route place southbound trains on the easternmost track (MT 1) and northbound trains on the westernmost track (MT 2). This practice and procedure is followed by Amtrak passenger trains using the coastal corridor. [¶] In approximately 2018, NCTD gave discretionary approval of the plan to have southbound COASTER commuter trains use the easternmost track where there are two parallel tracks . . . . The rationale for this decision was related to station and platform placement. At stations with two platforms, passengers on the route can always expect to board or exit a train on the left side of the train’s direction of travel, which is reasonable since it promotes safety and the orderly flow of passenger traffic to a station or platform.” 13  3. SANDAG SANDAG supported its motion for summary judgment with excerpts of the depositions of Shuxia He and Yuliang Xiao; a copy of the memorandum of understanding between SANDAG, NCTD, and MTS; the as-built plans for the Washington Street trolley station; and declarations from the Project and General Superintendent for Mid-Coast Transit Constructors, Joshua Grimm, SANDAG’s Director of Engineering and Construction, Sharon Humphreys, Resident Engineer Hank Gentile, and civil engineering expert Rock Miller. a. Declaration of Sharon Humphreys Humphreys explained that SANDAG does not control and does not perform any regular maintenance or upkeep on any light rail or heavy rail train tracks, or any streets, roadways, or sidewalks surrounding the Washington Street, or any other, light rail station. “SANDAG lacks the authority or rights to make any modifications or changes to the [Washington Street] Station or the [Subject] Location.” b. Declaration of Hank Gentile Gentile “was the Resident Engineer for SANDAG for the ‘Trolley Renewal Project’ which [made modifications] and improvements to various San Diego trolley stations consisting of larger shelters with new furnishings, digital next arrival signs, and upgrades to the track and train signaling system in order to accommodate the new ‘low-floor trolley’ vehicles, including at the Washington Street Station.” The Trolley Renewal Project took place between 2010 and 2015. Gentile explained that “Plans for the modifications at the Station were designed and drafted by the engineers at CH2M Hill. Prior to construction, the plans were reviewed, checked, and approved by the CH2M Hill engineers. As the Resident Engineer, [Gentile] also reviewed the plans prior to construction.” “The plans did not call for any pavement markings at the [Subject] Location.” 14  c. Declaration of Joshua Grimm Grimm explained, “In July 2015, MCTC contracted with [SANDAG] to construct the Mid-Coast Corridor Improvements Project that would extend the trolly light rail tracks from downtown San Diego to University City, La Jolla, providing an alternative to congested roadways, improve public transit, and enhance travel options.” This included upgrading the conduits at several stations along the light rail track. Under Grimms’ supervision, “MCTC crews performed phase one demolition and conduit duct bank upgrades at and adjacent to” the Washington Street Station in August and September of 2018. “During the phase one work performed in late August and early-mid September 2018, new trenches were dug in the street and new conduits were installed, and some existing conduits were replaced.” Grimm did not recall seeing a “Look Both Ways” sign on the signal pole at the Washington Street Station. MCTC crews did not move or alter the pole during their work. “On April 14–16, 2019, the street trenches were filled, compacted, and covered with asphalt, and in the location where the sidewalk slab was demolished, a new sidewalk slab was poured.” Under Grimm’s direction, “MCTC crews followed the existing as-built plans for the Station which did not include a ‘Watch For Moving Trains’ pavement stamp at the [Subject] Location.” MCTC did not make any further changes between April 16, 2019, and February 18, 2020, the date of the Incident. d. Declaration of Rock Miller Miller inspected the Washington Street Station and opined that “there are no warning signs or other required or recommended signs and other devices that were not present at or near the sidewalk in between the light rail tracks and the heavy rail tracks at the time of the incident.” Likewise, Miller opined that there was no requirement for a “Watch for Moving Trains” 15 sidewalk stamp, and stated that he had seen “no evidence to indicate that MCTC’s work at the Washington Street Station involved anything more than underground conduit upgrades and restoring the Washington Street Station to its approved as-built condition which did not include a ‘Watch For Moving Trains’ pavement stamp on the sidewalk.” D. The Zhengs’ Motion for Continuance and Amended Opposition to the Motions for Summary Judgment Following the motions for summary judgment, the Zhengs filed an ex parte application for continuance. They asserted that changes had been made to the Washington Street Station after the accident, contradicting claims by Respondents that the masonry wall had not been modified since it was originally built, and that they had recently located documents indicating that Respondents had been made aware of dangerous conditions at the Subject Location. 1. The Zhengs’ New Evidence a. Quiet Zone Study The Zhengs attached a report from a Quiet Zone Study conducted in 2018 and 2019. The purpose of the study was to determine if it was feasible to implement a quiet zone, in which train horns would be limited. The report notes, “it could be challenging to keep pedestrians disembarking from a trolley at the Washington Street Station from accessing the crossing during a crossing signal activation as there is insufficient room to provide pedestrian barriers.” Additionally, one representative noted “that an existing wall between the LRT platform and the LOSSAN[8] tracks can block views of oncoming trains.” 8 Los Angeles-San Diego-San Luis Obispo Rail Corridor. 16  The Zhengs also included an e-mail summarizing a site visit related to the quiet zone proposal, in which a utilities engineer noted further, “Due to the high frequency of trains and presence of 4 tracks, a second train may often approach the crossing on a different track while the warning devices remain activated. A number of approaches have very limited sight distance toward approaching trains. The horn is a valuable safety measure in this situation, particularly for pedestrians.” b. The January 2013 CPUC Meeting In addition, the Zhengs identified a letter from CPUC, produced by MTS, describing a January 2013 meeting regarding safety concerns at the Washington Street Station. According to the letter, “There have been four incidents that occurred at this crossing within the past 5 years [since 2013], the last 2 of which involved a pedestrian fatality, and a COASTER train striking a semi-truck stopped over the tracks.” The letter lists three “safety issues,” including: “Pedestrian movements. Especially when there is both MTS and heavy rail traffic at the same time. Pedestrian traffic at this grade crossing is heavy due to the trolley station. To access other commuter bus facilities, pedestrians cross the 2 San Diego Subdivision tracks in which trains operate at maximum of 65 MPH. Fencing encloses the east and west station platforms along the north segment of the 2 transit tracks; the west station fencing separates the trolley station/tracks and San Diego Subdivision tracks. The fencing material is solid stucco that acts as protective barrier, but presents significant reduction 17 in sightline distance and visibility.” CPUC recommended that the City install “LOOK BOTH WAYS” markings on the sidewalk.9 c. Declaration of Lillian Zheng Finally, Zheng’s daughter, Lillian Zheng submitted a declaration describing changes made to the Washington Street Station after the Incident. She stated that she visited the station on August 30, 2024 and “saw that the masonry wall was dramatically changed and significantly lowered.” She measured the wall and determined that it was approximately four feet high, two feet lower than it was on the day of the Incident. She also provided several photographs, attached as exhibits to her declaration. 2. Amended Opposition to Summary Judgment The Zhengs relied on much of the same evidence in their amended opposition to the motions for summary judgment. They asserted that disputes remained regarding whether the Washington Street Station was as- approved at the time of the Incident; whether the physical conditions at the station had changed; whether changed circumstances rendered the original design defective; and whether Respondents knew of the dangerous conditions at the Subject Location. With respect to changes at the station, the Zhengs asserted that the Amtrak train that struck Zheng was being used as a southbound, or alternating track at the time of the Incident, despite being approved as a northbound track. In addition, they pointed to the removal of the “Watch for Moving Trains” pavement stamp that pedestrians would previously cross before reaching the heavy rail tracks. And they pointed to the lowering of the 9 A second version of this letter, dated March 15, 2013, appears in the record as part of a lodgment of documents in support of Plaintiffs’ amended opposition to the summary judgment motions. We will refer to these collectively as “the CPUC meeting letter.” 18 masonry wall after the Incident as an admission that the design was dangerous. Regarding Respondents’ knowledge of the dangerous conditions, the Zhengs relied on the Quiet Zone Study and also provided new evidence regarding a fatality that occurred on August 26, 2022. They asserted that “an elderly pedestrian proceeded westbound after a southbound train passed and was struck by a second northbound train about 7 seconds later,” highlighting “the dangers of multiple trains approaching in quick succession and pedestrians’ difficulty in detecting trains from both directions.” In addition, although there was no indication a trolley was involved in this incident, a CPUC evaluator noted, “There are no flashers visible to westbound pedestrians from the pedestrian storage area between the trolley and the railroad tracks.” The Zhengs asserted that once Respondents were put on notice of these hazards, they had a duty to implement changes to address them within a reasonable time. And they relied on Cameron v. State of California (1972) 7 Cal.3d 318 to argue that design immunity did not necessarily foreclose their failure to warn claims. 3. Declaration of Louis D. Rubenstein The Zhengs also submitted a declaration from their own expert engineer, Louis D. Rubenstein, in support of their opposition. Rubenstein opined that “it is evident that the Washington Street crossing poses numerous dangerous conditions and fails to conform to multiple safety standards and best practices for pedestrian-rail crossings.” He noted that there were five fatalities and four injury incidents at the location between 1996 and February 2020, and provided copies of records from each occurrence. 19  Rubenstein opined further that “[t]here is inadequate sight distance due to a masonry wall on the subject platform that impedes pedestrians’ views of oncoming trains.” He noted that “The California Manual of Uniform Traffic Control Devices . . . recommends a maximum fence height of 43 inches,” well below the 52-inch height of the wall at the time of the Incident. Rubenstein also noted that “CPUC General Order 75-D states, ‘These rules are not intended as complete design or construction specifications. Design or construction specifications shall be in accord with accepted industry standards for the given existing local conditions.’ ” He opined, “When improvements to the station were made in 2010-2015 via the MTS and SANDAG ‘Trolley Renewal Project,’ . . . a back-facing light was not, but should have been, added to the Standard No. 8 flashing light signal in the northwest corner of the crossing.” He also stated that NCTD’s decision to allow bi-directional train travel made the original design of the location less safe. E. Respondents’ Supplemental Evidence In a supplemental declaration, Miller responded to the Zhengs’ new assertions, including those set forth in the Rubenstein declaration. Miller described the prior fatalities at Washington Street Station. He noted that in the first three instances, there was no indication that the pedestrian came from the trolley platform. In the fourth, the deceased was a “confirmed suicidal person,” and in the fifth, an individual was “dumped” out of a wheelchair on the track by an acquaintance. As particularly relevant to the issues on appeal, Miller stated: “Mr. Rubenstein’s contention in paragraph 16 of his declaration that the design of the masonry wall was not approved by MTS or a certified engineer is also incorrect. The design specifications for the masonry wall at the Washington Street Station are depicted on Drawing No. A-21 . . . in Volume II of the As- 20 Built Drawings re: The Old Town LRT Project. The drawings are stamped by a registered landscape architect Michael A. Theilacker . . . in January 1993 and certified/approved by MTDB Project Engineer David Ragland . . . on October 14, 1993. The As-Built Drawings were prepared by Parsons De Leuw, Inc. and certified by City Engineer M. Sammak . . . on January 31, 1997.” In addition, Miller noted that the Quiet Zone proposal was never implemented, and opined that the findings in the report were therefore irrelevant or immaterial to the instant matter. And he opined that “Multi- directional operations on a track promote efficiency and allows flexibility in responding to changing circumstances in the railroad industry.” F. The Trial Court’s Ruling After reviewing the various filings and hearing arguments from the parties, the trial court granted the motions for summary judgment in favor of MTS, NCTD, and SANDAG. The trial court determined that each of the three entities were entitled to design immunity. Regarding MTS, the trial court rejected Appellants’ argument that the masonry wall was approved only by a landscape engineer, who did not fall under the definition of “engineer” as required by statute. The court concluded, “This position lacks merit as Plaintiffs do not dispute facts the design and construction of the masonry wall were approved, inspected and certified by design and civil engineers.” The court went on to find that MTS met its initial burden to prove that the design and construction was reasonable, and rejected Appellants’ assertion that MTS lost immunity due to a change in physical condition. Finally, the court addressed Appellants’ argument that the station was a “concealed trap” by noting that a railroad track is itself a warning of danger. 21  The trial court’s analysis of the motions for summary judgment filed by NCTD and SANDAG was similar. As to NCTD, the court found that the decision regarding the direction of train travel was reasonable and that it did not constitute a change that eliminated design immunity. Likewise, the court found that SANDAG reasonably followed the approved plans for the station. The court noted that design immunity does not necessarily eliminate failure to warn claims, but concluded that Appellants did not adequately analyze the elements for the exception to apply. The Zhengs filed a timely notice of appeal. II. DISCUSSION The Zhengs assert that the trial court erred by granting the summary judgment motions because material issues of fact remain as to whether each of the Respondents is entitled to design immunity and whether Respondents lost design immunity because of changes or the passage of time. In addition, the Zhengs assert their claims based on the alleged failure to warn of a dangerous conditions are not excluded by design immunity, and that the trial court failed to adequately address the concealment of critical documents. A. Standard of Review “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar). We review an order granting a motion for summary judgment de novo and apply the same standards as the trial court. (Id. at p. 860.) “[T]he 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, supra, 25 Cal.4th at p. 850.) “There is a triable issue of material fact if, and only if, the evidence 22 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.” (Ibid.) “Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850