Opinion
A123002
7-8-2009
JAIME SANCHEZ, Plaintiff and Appellant, v. JOANELLE BALA et al., Defendants and Respondents.
Not to be Published in Official Reports
This case involves an intersection collision between plaintiffs car and an Oakland fire engine. Plaintiff Jaime Sanchez sued the City of Oakland, the Oakland Fire Department, and four of its firefighters. Defendants moved for summary judgment. The trial court granted the motion. We affirm because the trial court properly granted the motion on the ground that plaintiff failed to file a separate statement that responded to defendants separate statement of undisputed material facts. We also affirm the trial courts denial of plaintiffs request to amend his complaint.
I. FACTS
The following facts, which we state provisionally, are taken from defendants separate statement.
At 4:14 p.m. on March 14, 2006, the Oakland Fire Department received a call reporting a structure fire in a multi-family dwelling at 1900 26th Avenue. At 4:15 p.m., fire engine 2556 was dispatched to the scene, and was en route by 4:17 p.m. on priority "Code 3"—which meant that emergency lights and siren were activated and three or more firefighting units were assigned. Firefighter Bala was driving engine 2556. Firefighters De Lacy, Liggins, and McNicholas were crew members.
Engine 2556 proceeded eastbound on East 20th Street, with its lights and siren on. At the intersection with 25th Avenue, Bala paused at the stop sign, looked left and right, and saw that it was clear. Blasting her air horn, she proceeded into the intersection. De Lacy, a Fire Department Captain, also saw that the intersection was clear.
After the engine was in the intersection, Bala saw a black car approaching on her left side. When she thought she had cleared the intersection, she felt the car crash into the left rear of the engine. The engine was almost through the intersection when it was hit. It was thrown out of control and crashed into several parked cars before coming to a stop.
Plaintiff was the driver of the car. A witness said he was traveling at a high rate of speed and did not have time to stop before hitting the engine. Plaintiff testified in his deposition that he didnt see the engine until it was directly in front of him, and that he didnt see the lights or hear the siren. At the hospital after the crash, plaintiff told a police officer he was driving at 20 to 25 miles per hour and did not see the engine because of parked cars. Plaintiff said he did hear the siren, hit his brakes, and slid into the engine.
Plaintiff suffered a broken ankle and facial bruises. There was major damage to the front end of his car.
Plaintiff filed a complaint against the City, the Fire Department, and the four firefighters seeking damages for negligence. Defendants moved for summary judgment, arguing that (1) the individual firefighters were immune from liability; (2) plaintiffs complaint did not allege compliance with the Government Tort Claims Act (Gov. Code, § 910 et seq.); (3) there was no basis for statutory liability of the City; and (4) the engine was exempt from traffic regulations when it was responding to the scene of a fire with lights and siren activated. Defendants supported their motion with a separate statement of 37 undisputed material facts, which we have summarized above, as well as 14 declarations, police reports, and excerpts of plaintiffs deposition testimony.
Plaintiff opposed the motion. In his points and authorities he conceded that the individual firefighters—defendants Bala, De Lacy, Liggins, and McNicholas—were not individually liable. He further conceded that his complaint did not allege compliance with the Tort Claims Act, and—in the body of his points and authorities—requested leave to amend his complaint to allege compliance. He also requested leave to amend to allege a statutory basis for City liability—again, in the body of his points and authorities. Finally, he argued that Bala failed to exercise due care and there was no blanket immunity of the City and the Fire Department for their employees negligence.
Plaintiff supported his opposition with his own declaration, in which he states he approached the intersection at 20 to 25 miles per hour, looked both ways and did not see the engine, and did not see the engine until it was directly in front of his car. He also presented the declaration of a mechanical engineer who reconstructed the accident.
More significantly, plaintiff supported his opposition with a one-page separate statement of undisputed facts which did not respond to the undisputed material facts set forth in defendants separate statement. Rather, plaintiffs separate statement presented eight facts which essentially tracked those set forth in his declaration, with the additional "fact" that the engine was speeding and ran the stop sign without stopping or looking for approaching vehicles.
In their reply to plaintiffs opposition, defendants argued, inter alia, that plaintiffs opposition separate statement failed to respond to defendants separate statement of undisputed material facts as required by Code of Civil Procedure section 437c, subdivision (b)(3).
Subsequent statutory references are to the Code of Civil Procedure. We shall use an abbreviated form of statutory citation, e.g., "section 437c(b)(3)."
The trial court granted the motion on two independent grounds. First, the court ruled that defendants had sustained their burden of showing an absence of a triable issue of material fact. Second, the court ruled that plaintiff "failed to submit a response to Defendants separate statement of undisputed facts that indicates for the court which facts are disputed or undisputed. Instead, Plaintiff submitted only a separate statement of undisputed facts in support of opposition (`PSS). Although the Court has made an attempt to review the facts set forth in the PSS, Plaintiffs failure to set forth all relevant facts in the applicable portion of a proper response to Defendants separate statement makes it difficult for the Court to determine which facts are at issue and constitutes grounds for granting the motion." The court cited Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734-735 (Buehler).
The court also denied plaintiffs request for leave to amend: "The court notes that Plaintiff has had several months to request leave to amend and failed to do so. Plaintiff does not give any reason for the delay in seeking leave to amend. The instant motion [i.e., for summary judgment] was filed March 26, 2008, and the declaration of [defendants counsel] indicates that he attempted as early as February 2008 to meet and confer with Plaintiff regarding the deficiencies in the complaint. [The court ruled on June 12, 2008.] Second, the request for leave to amend was not properly requested in a noticed motion. (See C.C.P. § 473(a)(1).) Moreover, Plaintiff did not attach a copy of the proposed amended complaint and failed to comply with CRC 3.1324(a)(2-3)."
The court entered judgment for defendants.
II. DISCUSSION
In his opening brief, plaintiff does not address the issue of his opposition separate statement. Rather, he argues that the trial court erred by denying leave to amend and by finding no triable issue of fact on the issue of whether Bala drove with due care and whether there is government liability for any negligence.
The trial court properly denied plaintiffs request for leave to amend. Plaintiffs delay was, in and of itself, a valid reason for denial in the courts discretion. (See Record v. Reason (1999) 73 Cal.App.4th 472, 486.) Furthermore, plaintiff did not make his request in a properly noticed motion. Finally, plaintiff failed to comply with California Rules of Court, rule 3.1324(a) and (b)—he did not attach a copy of the proposed amended pleading and a supporting declaration as required by the rule.
We need not reach the issue of whether there is a triable issue of material fact. Plaintiffs failure to file a proper opposition separate statement is a sufficient ground for granting the motion for summary judgment.
Section 437c(b)(3) provides: "The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the courts discretion, for granting the motion." (Italics added.)
Both Buehler, on which the trial court relied, and Blackman v. Burrows (1987) 193 Cal.App.3d 889 (Blackman) recognize an independent basis for granting summary judgment based on noncompliance with section 437c(b)(3). (Buehler, supra, 224 Cal.App.3d at pp. 734-735; Blackman, supra, at p. 893.) Indeed, this is the plain wording of the statute.
In their respondents brief, defendants argue that the trial court properly granted their motion under Buehler.
Plaintiff addresses this issue for the first time in his reply brief. First, plaintiff argues the language in Buehler is dicta. It is not, because in that case the trial court relied on section 437c(b)(3) as a separate and independent ground for granting the motion. (Buehler, supra, 224 Cal.App.3d at p. 734.) The language in Buehler is an alternative holding.
Second, plaintiff relies on Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89. But that case recognized the trial courts authority to grant a motion for noncompliance, and simply held the court had abused its discretion under the circumstances before it. (Id. at pp. 93-96.)
Third, plaintiff relies on Kulesa v. Castleberry (1996) 47 Cal.App.4th 103 (Kulesa), a split decision from the Fourth District. The majority interpreted section 437c to require the trial court to review all the papers submitted on the motion, i.e., to reach the merits, despite the opposing partys noncompliance with section 437c(b)(3). (Kulesa, supra, at pp. 111-116.) "The trial court may not grant summary judgment based on the opposing partys failure to file an adequate separate statement in a vacuum: It must first consider all of the submitted papers to determine whether there are triable issues of fact and whether the moving party is entitled to summary judgment as a matter of law." (Id. at p. 116.) We respectfully disagree with this analysis because it puts the cart before the horse. First, there must be a procedurally valid opposition, with a proper separate statement responding to that of the moving party—then, the trial court reaches the merits. Thus, we agree with the dissent in Kulesa:
"Where there is substantial compliance with the separate statement requirement, that is, if each relevant fact is at least alluded to, the obligation of the court to `consider all of the evidence set forth in the papers imposed by section [437c(c)] would arise. However, where, as here, the central determinative fact is not referenced at all, we should not burden the trial court with a duty to search the evidence to determine whether some fact not mentioned in the [opposition] separate statement might require either a grant or denial of the motion." (Kulesa, supra, 47 Cal.App.4th at p. 119 [Rylaarsdam, J., dissenting].) The majoritys statutory interpretation was "[c]ontrary to obvious legislative intent," and would "require the trial judge to search the evidentiary materials for items not referred to in the separate statement, thus frustrating the very purpose of the separate statement requirement." (Ibid.)
The requirement of section 437c(b)(3) is no mere formalism. In this case, for instance, the trial court could not know whether plaintiff disputed whether the engines siren was on, or whether he heard the siren. Plaintiffs own statements in that regard are conflicting: he told a police officer at the hospital that he did hear the siren; he testified at his deposition that he did not; his declaration in opposition to the motion is silent on that point. The trial court also could not know whether plaintiff disputed the witnesss account that he was speeding as he approached the intersection.
We conclude that the trial court properly granted the motion for summary judgment on the separate and independent ground of noncompliance with section 437c(b)(3).
Plaintiff also relies on Shively v. Bozanich (2000) 85 Cal.App.4th 363 in his reply brief. The Supreme Court granted review in that case, and issued its opinion in 2003. (Shively v. Bozanich (2003) 31 Cal.4th 1230.) The court did not decide the section 437c(b)(3) issue. (Shively v. Bozanich, supra, 31 Cal.4th at p. 1241, fn. 4.)
We note that nothing in the record before us shows that plaintiff made any attempt to seek leave from the trial court to file a proper opposition separate statement. We also note that the court ruled on Buehler grounds in a tentative ruling, which plaintiff did not contest.
III. DISPOSITION
The judgment is affirmed.
We concur:
Margulies, J.
Graham, J.