Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIS21769, William S. Cannon, Judge.
McDONALD, J.
Plaintiff Gerardo Fuentes appeals a summary judgment entered in favor of defendants City of Chula Vista (City) and Hazel I. LeTourneau 2003 Trust (Trust) in his premises liability action against them. On appeal, he contends the trial court erred by: (1) granting Trust's motion for summary judgment because there are triable issues of material fact whether it breached its duty to maintain its property in a safe condition and to remedy defective conditions, including installation of a fence that would have prevented him from falling down a slope on the property; and (2) granting summary judgment for City because its joinder in Trust's motion for summary judgment was improper.
FACTUAL AND PROCEDURAL BACKGROUND
On July 18, 2004, Fuentes attended a barbeque party at a friend's house from about noon until about 7:30 p.m. While there, he consumed at least six or seven 12-ounce beers, but could not remember exactly how many. When he left the party, he was about "a five or a six" on a scale of "one being barely feeling drunk at all" to "ten being so drunk you're going to pass out." Someone drove Fuentes to a convenience store on Main Street. From there, he walked for five to 10 minutes to his brother-in-law's house. Finding no one home, Fuentes walked back to Main Street to find a bus stop so he could board a bus to the trolley station. Walking along the south side of Main Street, Fuentes decided to cross to the north side of the street to find a bus stop for a westbound bus. Standing on a dirt footpath, he observed fast-moving traffic. He became frightened when he saw the lights of a fast-moving car close to the curb. He took two or three steps backward, felt his foot slipping, and then fell down a slope and landed on a culvert. He felt pain in his left wrist and stomach.
On August 11, 2005, Fuentes filed a complaint against City and unknown "Doe" defendants alleging he sustained personal injuries when he "fell off a cliff over an irrigation canal" on property adjacent to Main Street in City (Property). He alleged the Property was "left unguarded or [un]protected and did not contain any type of warning." The complaint alleged City negligently maintained the Property and failed to warn of or make safe a dangerous condition on public property (i.e., the Property). On April 13, 2007, Fuentes amended his complaint by substituting Trust in place of the fictitiously named defendant "Doe 1."
On April 16, 2008, Trust filed a motion for summary judgment, arguing it could not be held liable on a negligence or premises liability cause of action because it did not owe a duty to Fuentes to install a fence to protect him from the sloping condition of the Property, which was undeveloped property it owned. Trust alternatively argued the slope was an open and obvious condition for which personal injury liability could not be imposed. In support of its motion for summary judgment, Trust submitted a separate statement of undisputed material facts and various declarations and other exhibits, including excerpts from Fuentes's depositions.
On or about June 27, 2008, City filed a notice of joinder in Trust's motion for summary judgment. That notice simply stated City "hereby joins in the Motion for Summary Judgment" of Trust, scheduled to be heard on July 18. Also on or about June 27, 2008, City filed a notice of its separate motion for summary judgment or, in the alternative, summary adjudication, scheduled to be heard on September 12.
The record on appeal contains only City's notice of its motion and does not include a supporting memorandum, separate statement of undisputed material facts, or other documents.
On or about July 2, Fuentes filed his opposition to Trust's motion for summary judgment. In support of his opposition, he submitted a separate statement of disputed facts--a response to Trust's separate statement; and declarations of two experts, Joseph Balla and Carl Beels. Citing Rowland v. Christian (1968) 69 Cal.2d 108, Fuentes argued, as stated in the declarations of his two experts, Trust had a duty to install a chain-link fence around the open sides of the culvert that would have prevented his fall down the slope. He further argued Trust breached that duty by not installing a fence that would have prevented his fall down the slope.
On or about July 31, Trust filed its reply to Fuentes's opposition. Trust also filed evidentiary objections to the declarations of Balla and Beels.
On August 8, the trial court issued its tentative ruling granting Trust's motion for summary judgment. The tentative ruling stated:
" 'Premises liability is a form of negligence based on the holding in Rowland v. Christian, supra, 69 Cal.2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.' [Citation.] 'As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.' [Citation.]
"The facts, as developed by the papers submitted, are as follows. On July 18, 2004[,] [Fuentes] was walking along Main Street in Chula Vista. It was dark (after 7:30 or 8:00 p.m.) and he was intoxicated (rating himself 'about a five or a six' on a scale of 10, with ten being about to pass out[)]. [Citation.] There was no sidewalk, just a well-worn flat area that paralleled the roadway. [Citations.] When he saw a car traveling near him at a high rate of speed[,] [Fuentes] stepped backwards two or three steps, without looking behind him. [Citation.] In stepping back[,] he slipped on a slope. [Citation.] It is undisputed that [Fuentes] fell onto a concrete culvert. The property on which [Fuentes] was walking and fell was owned by the Trust and was part of an easement controlled by the City.
"[Trust] did not have a duty to place a fence around the culvert. The danger that existed was due to the natural slope located above a concrete culvert. The potential danger of the slope is readily apparent.... [Fuentes] argues the danger is only apparent during the day and the accident happened at night. However, [Fuentes] was acting negligently because he was admittedly intoxicated and he was stepping backwards without looking where he was going. Absent notice that one may act in this manner, [Trust] is entitled to assume nobody would walk backwards at night off of the several foot-wide flat portion along the roadway and onto the sloping surface. [Citation.] Requiring all owners of vacant property to place fences above any portion of their property that trespassers might walk onto at night would impose an unreasonable burden on such owners. It is more reasonable to expect passersby to look where they are walking and to stay on the well-worn pathway." (Italics added.)
The court also rejected Fuentes's reliance on a City ordinance (i.e., Chula Vista Mun. Code, § 15.04.120) and guard rail and fence standards (i.e., "M-30" guard rail and "M-6" fence drawings) as support for his assertion that Trust had a duty to install a fence to prevent falls down the slope. The court concluded the ordinance applied to "land development work" and was therefore inapplicable because the Property was undeveloped. Furthermore, it concluded the guard rail and fence drawings did not apply to private property owners.
On August 8, 2008, the trial court heard arguments of counsel on Trust's motion for summary judgment. The court stated: "I don't think any duty exists as a matter of law that says you must fence off your property when it's abutting the street or when there have been trespassers or... users that have walked across the property at times. [¶] Do you have an obligation to fence off the property from its natural slope, as I understand it is the case[?] It's a natural slope, has been like that for years and years and years, and I'm not willing to jump into that and step that far." (Italics added.) Trust's counsel noted that because the court had sustained its objections to the declarations of Fuentes's two experts, there was no evidence to rebut Trust's showing that the elements of duty, breach, and causation were missing. City's counsel stated that, although it had filed its own motion for summary judgment which was pending, City wished to be included in the court's ruling based on its joinder in Trust's motion for summary judgment. The trial court concluded: "I really am not willing to make that jump to require landowners to put in fencing on a property of this type where particularly they haven't done anything other than natural sloping surface. [¶] So I'm going to leave the tentative [ruling] as it is and I'm going to include [City] in that."
On August 14, 2008, the trial court entered its judgment for Trust and City and against Fuentes. The judgment stated that: "There was no showing of the requisite elements of duty, breach, or legal causation, or of an unreasonably dangerous condition of property owned by [Trust] with an easement by [City], based on the law of negligence and premises liability...." (Italics added.) The judgment dismissed Fuentes's complaint with prejudice and vacated all further court appearances concerning Trust and City.
Fuentes timely filed a notice of appeal.
DISCUSSION
I
Summary Judgment Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "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. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....' (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co.[, supra, 25 Cal.4th at pp.] 854-855.)" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) Code of Civil Procedure section 437c, subdivision (o), provides that a cause of action has no merit if: (1) one or more elements of that cause of action cannot separately be established; or (2) a defendant establishes an affirmative defense to that cause of action. A defendant need not conclusively negate an element of the plaintiff's cause of action, but must only show that one or more of its elements cannot be established. (Aguilar, at p. 853; Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201.) "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, at p. 850.) Although "the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Id. at p. 856.) "If [the] party moving for summary judgment... would prevail at trial without submission of any issue of material fact to a trier of fact for determination," the motion should be granted. (Id. at p. 855.)
All statutory references are to the Code of Civil Procedure.
"On appeal, we exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] 'The appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later. [Citation.] Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' [Citations.]" (Seo v. All-Makes Overhead Doors, supra, 97 Cal.App.4th at pp. 1201-1202.)
II
Summary Judgment for Trust
Fuentes contends the trial court erred by granting Trust's motion for summary judgment. He asserts there are triable issues of material fact whether Trust breached its duty to maintain the Property in a safe condition and to remedy defective conditions. He argues Trust breached its duty to install a fence that would have prevented him from falling down the slope on the Property.
A
To prevail on a negligence cause of action, a plaintiff must show the defendant owed him or her a duty of care, the defendant breached that duty of care, and the breach was a legal cause of plaintiff's injuries. (Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 477.) In a premises liability case, a plaintiff must show the landowner owes him or her a duty to exercise reasonable care to maintain the property in a reasonably safe condition (i.e., in such a manner as to avoid exposing persons to an unreasonable risk of injury). (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) A breach of that duty is negligence. (Barnes, at p. 1478; Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371-372.)
The existence of a duty of care is a question of law to be decided by the trial or appellate court in the circumstances of a particular case. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237-238; Alcaraz v. Vece, supra, 14 Cal.4th at p. 1162, fn. 4; Barnes v. Black, supra, 71 Cal.App.4th at p. 1478.) "The duty analysis... requires the court in each case (whether trial or appellate) to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. 'Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.' [Citation.]" (Castaneda, at p. 1214, quoting Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 280.) In determining the existence and scope of a duty of care in particular circumstances, courts consider the following factors set forth in Rowland v. Christian, supra, 69 Cal.2d 108: "[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]" (Id. at p. 113; Castaneda, at p. 1213; Barnes, at p. 1478.) The existence and scope of a duty is an expression of the sum total of policy considerations that lead a court to conclude a particular plaintiff is owed a duty of care by the defendant. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) "Foreseeability and the extent of the burden to the defendant are ordinarily the crucial [Rowland] considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis. [Citations.]" (Castaneda, at p. 1213.) The existence of a duty of care in the particular circumstances of a case, "being a question of law, is particularly amenable to resolution by summary judgment. [Citation.]" (Parsons, at p. 465.)
B
We conclude the trial court correctly granted Trust's motion for summary judgment because Trust carried its burden to show Fuentes cannot establish the element of duty. (§ 437c, subd. (o).) Fuentes's theory of Trust's premises liability was based on his assertion that the Trust owed him a duty to install a fence at the top of the slope to prevent him from falling down the slope. To satisfy its burden in moving for summary judgment, Trust submitted evidence showing that, on consideration of the Rowland factors, it did not owe Fuentes a duty to install a fence at the top of the slope to prevent him from falling down the slope. That evidence included excerpts from Fuentes's depositions and a declaration of Trust's expert, Brad Avrit. Independently considering and weighing the Rowland factors in the circumstances of this case, we conclude Trust did not owe Fuentes a duty to install a fence at the top of the slope.
Foreseeability. Trust submitted evidence showing harm caused by a fall down the slope by Fuentes, or inebriated pedestrians in general, was not reasonably foreseeable. Our task in determining the existence of a duty is not to decide whether Fuentes's injury was reasonably foreseeable in consideration of his particular conduct, but rather to evaluate more generally whether the lack of a fence was sufficiently likely to result in the kind of harm suffered by Fuentes. (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 476.) Trust submitted the declaration of Dorian Tesh, its trustee, who stated there had "never been any type of accident, injury, claim, or lawsuit on the [Property], where [Fuentes] claims to have fallen." Based on Fuentes's deposition testimony, it was evident he was inebriated and not attentive to his surroundings at the time he took two or three steps backward on the level dirt pathway (apparently about six feet wide), slipped and fell down the slope in the dark. It is not reasonably foreseeable that inebriated (or sober, for that matter) pedestrians would walk along a dirt pathway on undeveloped property, stop, and then take a few steps backward without looking, causing them to fall down the slope and suffer injuries.
Certainty of injury. Fuentes was injured by his fall.
Closeness of connection. There was a connection between the lack of a fence and Fuentes's injuries, but that connection was minimal in comparison to other circumstances. Fuentes's inebriation and inattentiveness to his surroundings had a more direct connection to his injuries than the absence of a fence at the top of the slope.
Moral blame. Because there had been no prior accidents on the Property and Trust submitted evidence regarding the prevalence of similar unfenced slopes in San Diego County and the lack of any custom to install fences in similar situations, there can be little moral blame attributed to Trust's failure to install a fence.
Policy of preventing future harm. Because there had been no prior accidents on the Property and no local custom of installing fences above slopes in similar situations, there does not appear to be any significant public safety policy reason to require a property owner to install a fence above a slope in the circumstances of this case. Furthermore, that conclusion is supported by the apparent lack of any statute, ordinance, or other law requiring property owners to install a fence in these circumstances.
Burden on Trust and consequences to the community. It would be a financial burden on Trust to require the installation of a fence above the slope on the Property. Although that burden may not be substantial, it would be a burden nonetheless. More importantly, were such a duty imposed on all similarly situated property owners, the financial burden of compliance would be, in the aggregate, substantial. Furthermore, the uncertainty regarding which slope situations require fencing would impose on property owners significant time and financial burdens in determining whether fencing would be required above the multitude of varying slopes throughout San Diego County and California. (Cf. Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1456 [burden of determining how to comply with a signage duty].)
Availability, cost, and prevalence of insurance. Absent any evidence showing otherwise, we presume insurance is, or could be made, available to cover the risks were a duty imposed in these circumstances. We do not know whether that cost would, in the aggregate, be a substantial burden on similarly situated property owners. The prevalence of insurance presumably would be widespread so that property owners could readily obtain it.
After considering and weighing all of the Rowland factors, we conclude there is no duty for Trust, or similarly situated property owners, to install fences above slopes in the circumstances of this case. The two most important factors, foreseeability and the burden on Trust, weigh heavily in favor of not imposing that duty on Trust. (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213.) Other factors weighing against a finding of a duty include the closeness of the connection, moral blame, and the policy of preventing future harm. The availability, cost, and prevalence of insurance does not significantly weigh either in favor of or against the imposition of a duty. The certainty of injury weighs in favor of imposing a duty, but that factor is insignificant in comparison to the many more important factors weighing against the imposition of a duty. Accordingly, based on the record in this case, we conclude Trust carried its burden to show Fuentes could not establish the element of duty and that it was therefore entitled to judgment in its favor.
Although in opposing Trust's motion for summary judgment Fuentes submitted the declarations of two experts that purportedly supported his argument that a duty should be imposed on Trust to install a fence above the slope on the Property, the trial court sustained Trust's evidentiary objections to those declarations and Fuentes does not argue on appeal the court erred in so ruling. Because we cannot consider those declarations in independently deciding whether Trust's motion for summary judgment should have been granted (Merrill v. Navegar, Inc., supra, 26 Cal.4th at pp. 476-477; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 767), Fuentes has not presented any evidence rebutting Trust's showing or otherwise persuading us that Trust owed him a duty to install a fence above the slope on the Property. Absent the existence of a duty of care owed by Trust to Fuentes, the trial court correctly granted Trust's motion for summary judgment. (§ 437c, subd. (o); Merrill, at p. 477; Barnes v. Black, supra, 71 Cal.App.4th at p. 1478; Alcaraz v. Vece, supra, 14 Cal.4th at p. 1156.)
III
Summary Judgment for City
Fuentes contends the trial court erred by granting summary judgment for City because its joinder in Trust's motion for summary judgment was improper. He argues City's purported joinder was improper because it did not include a separate statement of undisputed facts or other supporting papers. (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 46.) Although City asserts Fuentes forfeited this contention by not objecting to its joinder before or during the August 8, 2008, hearing, we exercise our discretion and consider this question of law on undisputed facts in this appeal. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.)
A
We conclude the trial court erred by granting summary judgment for City because: (1) City's purported joinder papers did not comply with the statutory requirements for a summary judgment motion; and (2) City's joinder did not comply with the minimum statutory time requirements for a summary judgment motion. City's joinder with Trust's motion for summary judgment therefore cannot be considered to be a motion for summary judgment in favor of City. Rather, its joinder can be nothing more than a statement supporting summary judgment in favor of Trust. First, City's purported joinder consisted solely of a simple joinder notice that did not include any of the other papers required by section 437c, subdivision (b)(1), which states: "The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed...." (Italics added.) Accordingly, City's purported motion for summary judgment by simple joinder in Trust's motion for summary judgment was statutorily deficient because that joinder was not accompanied by supporting papers (e.g., a separate statement of undisputed material facts) showing City, and not just Trust, was entitled to judgment as a matter of law. (Village Nurseries v. Greenbaum, supra, 101 Cal.App.4th at pp. 46-47; Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637.) "While this form of [simple] joinder may be sufficient for some purposes [citations], it is not sufficient for purposes of the summary judgment statute." (Frazee, at p. 636.) To the extent City nevertheless implicitly relied on, or incorporated, the supporting papers filed by Trust in support of its motion, City does not show, and we cannot find, any evidence in Trust's separate statement and other supporting papers that show there are no triable issues of material fact regarding Fuentes's claims against City or that City is entitled to judgment as a matter of law. (Cf. Frazee, at p. 636.)
Second, City's purported joinder was filed on or about June 27, 2008, at which time Trust's motion for summary judgment was scheduled to be heard on July 18. Fuentes was afforded only 22 days' advance notice to oppose City's joinder and prepare for oral argument on City's purported joinder in Trust's motion for summary judgment. Although that hearing was ultimately conducted on August 8, City's notice of joinder nevertheless preceded that hearing date by only 43 days. City's purported motion for summary judgment by simple joinder in Trust's motion did not satisfy the statutory 75-day minimum requirement before the hearing. Section 437c, subdivision (a), provides in pertinent part: "Notice of the [summary judgment] motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing." (Italics added.) Because City did not serve its notice of joinder on Fuentes at least 75 days before the scheduled July 18 hearing (or ultimate August 8 hearing), City's notice of joinder was untimely served on Fuentes and could not provide the trial court with authority to grant summary judgment in City's favor on August 8. (Cf. Frazee v. Seely, supra, 95 Cal.App.4th at p. 636-637 [defendants' motion for joinder in codefendants' motion for summary judgment motion was untimely because it was not filed until 22 days before hearing]; Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764-766.) The Legislature's "use of mandatory language deprived a trial court of the authority to shorten the notice period for hearing summary judgment motions." (Urshan, at p. 766, fn. omitted.) Statutory requirements for summary judgment cannot be ignored as mere technical requirements. "Summary judgment, although a very useful tool in litigation, is also a drastic remedy. Because of this, it is important that all of the procedural requirements for the granting of such a motion be satisfied before the trial court grants the remedy." (Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256.) Because the trial court had no authority to grant summary judgment for City based on its June 27 notice of joinder that did not satisfy the statutory requirements for a motion for summary judgment, the court erred by granting summary judgment for City at its August 8 hearing.
B
Although City asserts the trial court's error was harmless, we conclude that error is reversible per se or, in any event, caused a miscarriage of justice. Although in certain cases "purely technical errors in granting summary judgment can be found harmless" (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 947), the trial court's error in this case cannot be categorized as merely "technical." "[B]ecause of the drastic nature of the remedy sought, [a party moving for summary judgment] is held to strict compliance with the procedural requisites." (Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 284.) By granting summary judgment for City based on City's simple and untimely notice of joinder, the trial court acted without authority and, in effect, granted summary judgment for City sua sponte. (Urshan v. Musicians' Credit Union, supra, 120 Cal.App.4th at pp. 765-766.) Considering the time-deficient and supporting-paper-deficient notice of joinder filed by City, the trial court's grant of summary judgment to City was "tantamount to a denial of due process" and "bordered on granting the motion for summary judgment sua sponte, which undisputedly would have deprived [Fuentes] of a fair trial." (Ibid., fn. omitted.) "Absent a [statutorily compliant] motion, ordering summary judgment denies the opposite party opportunity to allege additional facts justifying trial of factual issues. Depriving him of his right to a fair trial, the procedure falls outside the curative provisions of California Constitution, article VI, section 13." (Dvorin v. Appellate Dept. (1975) 15 Cal.3d 648, 651; cf. Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1232 [spontaneously granted summary judgment reversed as exceeding trial court's jurisdiction], overruled on another ground in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156.) Accordingly, we conclude the trial court's error cannot be deemed harmless and requires reversal of the summary judgment for City, whether the error is considered reversible per se or a miscarriage of justice. (Hawkins, at p. 949; Village Nurseries v. Greenbaum, supra, 101 Cal.App.4th at p. 47; Frazee v. Seely, supra, 95 Cal.App.4th at p. 637; Sierra Craft, Inc. v. Magnum Enterprises, Inc., supra, 64 Cal.App.4th at p. 1256.)
C
Although we reverse the summary judgment for City based on its notice of joinder in Trust's motion for summary judgment, we nevertheless note that on or about June 27, 2008, City filed its own notice of motion for summary judgment with a hearing on that motion scheduled for September 12. Although the record on appeal does not include City's papers in support of that motion, we presume those papers included a memorandum of points and authorities, a separate statement of undisputed material facts, and other supporting papers. However, because the trial court erroneously granted summary judgment for City at the August 8 hearing on Trust's motion for summary judgment, the court also vacated all further hearings involving City, which included the scheduled September 12 hearing on City's motion for summary judgment. City did not request that its motion be heard or consolidated with Trust's motion for summary judgment. Therefore, no hearing was held on City's motion. Furthermore, Fuentes presumably had not filed his opposition to City's motion, which opposition was not due until 14 days prior to the scheduled September 12 hearing (i.e., on or before August 30). (§ 437c, subd. (b)(2).) Because the trial court precluded City from receiving a hearing on its motion for summary judgment and precluded Fuentes from filing his opposition and appearing at the September 12 hearing to oppose that motion, the matter is remanded to allow the parties to proceed in accordance with applicable summary judgment procedures and allow the trial court to properly consider and decide City's motion for summary judgment and conduct further proceedings as may be warranted.
DISPOSITION
The judgment in favor of Trust is affirmed. The judgment in favor of City is reversed. The matter is remanded with directions that the superior court deny City's joinder motion and conduct further proceedings consistent with this opinion. Fuentes shall recover his costs on appeal as to City. In all other respects, the parties shall bear their own costs on appeal.
WE CONCUR NARES, Acting P. J.,McINTYRE, J.