Opinion
B297556
07-26-2021
APOLONIA BAUTISTA, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Law Office of Julie C. Lim, Julie C. Lim and Travis Poteat for Plaintiff and Appellant. Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Senior Assistant City Attorney, Blithe S. Bock, Managing Assistant City Attorney, and Michael M. Walsh, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC625956, Craig D. Karlan, Judge. Affirmed.
Law Office of Julie C. Lim, Julie C. Lim and Travis Poteat for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Senior Assistant City Attorney, Blithe S. Bock, Managing Assistant City Attorney, and Michael M. Walsh, Deputy City Attorney, for Defendant and Respondent.
WILEY, J.
Apolonia Bautista sued the City of Los Angeles after she was hit by a car while jaywalking. Bautista claimed the street was unreasonably dangerous for several reasons. Her main complaint is heavy tree cover shaded the street.
The City sought summary judgment. Bautista failed to oppose on a timely basis. The trial court denied relief and then granted the City's motion.
We affirm. Bautista failed to establish good cause for relief. Summary judgment was proper. Undesignated statutory references are to the Code of Civil Procedure.
I
In December 2015, a car struck Bautista while she was crossing the street near her home. The street is Vinton Avenue in Los Angeles. The accident occurred between Regent Street and Tabor Street. Bautista claims she suffered severe and life-changing injuries from the accident.
Much of Bautista's appeal concerns procedural matters. We detail the procedural timeline leading up to the summary judgment ruling.
Bautista sued the driver, Grayline Rogers, some owners and managers of properties near the accident, and the City on July 1, 2016. The court set trial for March 5, 2018.
On February 16, 2018, less than three weeks before trial, Bautista filed an ex parte application to continue the trial date. She represented all parties had stipulated to the continuance, both her counsel and counsel for a defendant had upcoming trials, and the continuance would enable greater opportunity for settlement. The court set a new trial date of July 16, 2018.
Bautista served her first set of discovery on the City the day she moved for a continuance. This was 19 months after she filed the lawsuit.
Bautista sought court assistance in April 2018 after the City failed to serve discovery responses. The City answered the discovery shortly after Bautista filed her discovery motions and then supplemented a month later. The trial court denied the motions as moot and ordered sanctions of $810.
On June 28, 2018, Bautista filed another ex parte application to continue the trial date. Bautista accused defendant Rogers of gamesmanship for withdrawing his consent to a continuance, complained of discovery conflicts with him, and reported “discovery issues” with the City were pending. The court set a new trial date of February 25, 2019, but it did not reopen discovery.
In November 2018, the City sought to have its summary judgment motion heard within 30 days of trial due to a calendaring error by its counsel.
Bautista then moved to reopen discovery. She claimed attorney error for failing to request this relief earlier, discovery abuse by her opponents, and the need for additional discovery to prepare for trial. Bautista's application highlighted subpoenas she issued to various City departments months earlier in June 2018. The City said Bautista never served it and its counsel with the subpoenas, and they were not aware of them. The parties agreed to a continuance in exchange for reopening discovery. The court set a new trial date of June 3, 2019, and warned it would not continue the matter again for any reason.
In December 2018, the City served responses to the subpoenas. Apparently not content with the responses and believing the verifications should have come from department custodians of records instead of City counsel, Bautista re-issued subpoenas in January and February 2019, including a subpoena to the police department dated February 4th. In the words of Bautista's counsel: “For the record, I did not reserve a motion to compel because I did not think it was going to be effective. I thought it was more efficient and more prudent for the plaintiffs to just subpoena the documents directly.”
On January 3, 2019, the City filed and served its motion for summary judgment. The hearing date was March 20, 2019. Bautista's opposition was due March 6th. That day came and went without a filing.
On March 6 and 8, 2019, City counsel emailed Bautista's counsel requesting her separate statement. City counsel also wrote she had not received Bautista's summary judgment opposition.
On March 11th, five days after the opposition deadline, Bautista moved to continue the hearing under section 437c, subdivision (h). She claimed the City's discovery abuses provided good cause for relief. Specifically, Bautista complained of the police department's refusal to comply with the February 2019 subpoena. Two days after receiving the subpoena, the department wrote Bautista's attorney a letter saying it was returning Bautista's check because the City was a party to the case. A day later, on February 7th, the City asserted objections to the subpoena. Bautista claimed this discovery would show the City's notice of a dangerous condition on Vinton Avenue and maintenance failures.
Bautista's motion included a declaration from her attorney, Julie C. Lim. The declaration says nothing about attorney fault. Lim points to the City's discovery abuses and the need for discovery as the sole basis for the motion.
On March 14, 2019, eight days after the opposition deadline, Bautista filed three ex parte applications. The first sought a continuance. This application and the supporting declaration largely mirror the papers Bautista filed on March 11th. Bautista added that the City refused to respond fully to requests for admission. She sought relief under section 437c, subdivision (h), and section 128, subdivision (a)(8), which empowers courts to amend their orders. Lim's declaration again said nothing about attorney error or fault.
The other two ex parte applications concerned discovery. One was to deem admitted certain requests for admission Bautista served on February 7, 2019. The other was to compel the City to comply with the February 2019 subpoena issued to the police department. The ex parte applications were to be heard on March 18, 2019. This turned out to be a busy day in the case.
The City filed two oppositions that day. Regarding the subpoena, the City noted Bautista should not have used a nonparty deposition subpoena for discovery sought from a City department. Rather, she was required to serve a traditional request for production of documents on the City, as it was a party to the case.
Regarding the continuance, the City claimed Bautista's ex parte applications and her discovery were untimely, failed to establish good cause, and underscored her lack of diligence in the case. Bautista's February 2019 subpoena to the police department covered largely the same ground as earlier subpoenas, which the City properly answered in December 2018. Bautista asked for irrelevant documents and documents the police did not maintain, and the requests should have been made to the City through counsel. Bautista served her requests for admission so late they were inconsequential-the responses were due after Bautista's summary judgment opposition. Bautista also had noticed several depositions in February and March only to take them off calendar. Her claims that she needed discovery to oppose summary judgment thus were hollow, according to the City.
Also on March 18th, Bautista's counsel Lim filed a supplemental declaration. For the first time, Lim declared she was seeking relief under section 473, subdivision (b), “due to a calendar error” and “attorney fault”: she failed to calendar the deadline for moving to continue the summary judgment hearing. Lim says she is a solo practitioner and she had been busy preparing for another trial. The declaration then discusses the City's “continuing discovery abuse” and Bautista's need for documents from the police department.
The trial court heard Bautista's ex parte applications the same day as this flurry of filings-March 18, 2019. The court denied Bautista's two discovery applications. After argument, the court asked Lim to “cut to the chase” and say what she needed from the police department. Lim said traffic engineering reports, and if the department did not have them, a verified declaration saying so. The trial court continued the hearing to March 20, 2019, so the City could get a supplemental response from the police department. The court said it was inclined to deny the continuance, as it could not find good cause.
On March 19th, the day before the scheduled summary judgment hearing, Bautista filed opposition papers without obtaining leave. Lim admitted these papers were “limited”, “not thorough”, and “not complete.”
Also on March 19th, Bautista filed another ex parte application, apparently under the misimpression the court denied her first application seeking a continuance. This time, Bautista also asked the court to accept her late opposition. The notice states relief is warranted due to the City's “ongoing campaign of discovery abuse, ” which impeded Bautista's ability to prepare the opposition. The brief again cited section 437c, subdivision (h), and section 128, subdivision (a)(8), as the bases for relief. It mentioned “attorney error” only in passing.
Lim briefly explained the error and cited section 473, subdivision (b), in a new declaration. She said she had been busy on another case and the late opposition resulted from her “lack of attention” to the case against the City. There was no mention of a calendaring error.
On March 20, 2019, the summary judgment hearing date, the court resumed the hearing on Bautista's continuance request. After extensive argument by counsel, including argument relating to the merits of Bautista's case, the court took the matter under submission. It ordered the City to provide a final verified response from the police department. And it asked Lim to file a supplemental declaration stating whether she received the emails from City counsel asking about her separate statement. Depending on what the submissions showed, the court said it either would continue the summary judgment hearing and allow Bautista to augment her opposition with respect to any new evidence, or it would deny a continuance, strike Bautista's opposition as untimely, and set a date for argument on the City's unopposed motion.
On March 21, 2019, Bautista filed evidentiary objections to the declaration of the City's expert witness and a request for judicial notice of a traffic document.
On March 28, 2019, the City provided a further response to the police department subpoena, as ordered. The response consisted of two pages that detail a complaint made in 2017 regarding improper left turns at an unrelated intersection and citations connected to this complaint. The document appears to be irrelevant to the case.
Also on March 28, 2019, Lim filed another supplemental declaration. Lim again asked for relief for her “calendar error” under section 473, subdivision (b). She discussed her trial preparation in her other case and her inability to manage that case along with the discovery demands in this case. She confirmed City counsel emailed her twice-on March 6th and 8th-asking for Bautista's separate statement. In her words, the second email “caused me to discover that I had blown the deadline by which to bring the motion to continue the hearing pursuant [to section 437c, subdivision (h)].” Lim also said the police department's latest subpoena response showed additional depositions and discovery are necessary. She concluded by requesting leave to file a “more detailed and complete” opposition to the City's summary judgment motion.
On March 29, 2019, the trial court denied Bautista's ex parte applications for a continuance and for leave to accept her late opposition. The court concluded the requests were untimely and lacked good cause, and Bautista had not acted with diligence in pursuing her claims. The court then set the summary judgment hearing for April 9, 2019, and ordered the clerk to give notice.
Neither Bautista nor Lim appeared at the April 9, 2019 hearing, despite written notice and multiple calls to Lim by the clerk. The court continued the hearing to April 24th to ensure Lim received notice of the hearing.
The day before the rescheduled hearing, Bautista filed an ex parte application for an order staying the hearing so she could seek writ relief. She argued the trial court abused its discretion in denying a continuance.
Bautista and her counsel then failed to appear at the April 24, 2019 hearing. Apparently, Lim called the court and then hung up. Then her assistant called to say Lim was sick, possibly with food poisoning, and then hung up without further explanation.
The trial court proceeded with the hearing. It denied the stay application and granted the City's motion for summary judgment. Although the court deemed the motion unopposed, it nevertheless evaluated the City's evidence and the merits and issued a decision concluding the City met its burden of showing no triable issue of material fact existed.
II
Bautista appealed before the trial court entered judgment against her. In the interests of justice and to avoid delay, we treat Bautista's appeal as from a judgment. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1407, fn. 2.)
In her notice of appeal, Bautista challenges the trial court's orders denying a continuance, rejecting her late opposition papers, denying her discovery-related ex parte applications, effectively overruling her evidentiary objections, and granting summary judgment. We address each ruling. We affirm.
A
The trial court did not abuse its discretion in denying Bautista's requests to continue the summary judgment hearing and to accept her tardy opposition.
“A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 (Bozzi).)
Similarly, courts have wide latitude to grant continuances. Section 437c, subdivision (h), curbs this discretion in summary judgment proceedings, but only if invoked properly. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170 (Mahoney).)
The law required Bautista to request relief under this provision on or before the deadline for her opposition. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255 & 259 [§ 437c was amended in 2002 to allow continuance requests to be made any time on or before the opposition is due].) Bautista filed her first continuance motion five days after the deadline. Accordingly, her continuance requests, like her request for the court to accept her late papers, fell within the court's discretion. (See Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765 (Hamilton).)
We review for an abuse of discretion. (Mahoney, supra, 223 Cal.App.3d at p. 170.)
The trial court was right to deny relief. Bautista did not show good cause. (See Mahoney, supra, 223 Cal.App.3d at pp. 170-171; Bozzi, supra, 186 Cal.App.4th at p. 765.)
Bautista sought a continuance only after missing her opposition deadline and after receiving two email reminders from opposing counsel. She initially claimed she needed a continuance due to the City's discovery abuses. But her discovery problems were largely of her own making: she served requests for admission too late to use them. She failed to follow through on noticed depositions. She insisted on using third party subpoenas to get discovery from City departments and then mostly did not follow up on them. Bautista did seek court intervention regarding one subpoena, but she waited too long after the police department stood on its objection. Bautista's initial continuance papers “offered no cogent justification for the extreme tardiness of [her] attempts to gather evidence.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.) If the discovery truly was essential, Bautista should have served it in time to use it and should have followed up diligently.
Bautista then undermined her claim the discovery was essential in later filings when her reasons for a continuance shifted. Recall, two days before the summary judgment hearing and after filing a motion and an ex parte application identifying discovery abuses as the sole reason for a continuance, Bautista's counsel submitted a declaration asserting she was busy with trial preparation in another case and this is why she missed her window to seek a continuance. Presumably, counsel knew this trial date months in advance. Yet she did not seek relief until after the opposition deadline had passed.
Bautista's lack of diligence extended beyond the summary judgment proceedings. She filed the case in July 2016 but did not serve written discovery on the City until February 2018, after discovery had closed. She sought, and obtained, three other continuances in the case. Bautista had years to conduct discovery. She was not diligent.
The trial court did not abuse its discretion in refusing further relief. (See Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531 & 533 [trial court reasonably denied continuance of summary judgment hearing where plaintiff was not diligent in conducting discovery]; Mahoney, supra, 223 Cal.App.3d at p. 172 [no abuse of discretion to deny continuance of summary judgment hearing where counsel failed to request a continuance promptly upon ascertaining the need].)
Bautista moved to compel once, a year before the summary judgment hearing, and obtained nominal sanctions. This does not absolve her dilatory conduct.
Bautista cites eight cases she claims compel us to reverse the trial court. None involves circumstances like those here.
In Hamilton, supra, 8 Cal.App.5th at pages 761 and 765, the trial court abused its discretion in denying a continuance where defense counsel had stipulated to the continuance because they were responsible for the plaintiff's inability to take depositions of key witnesses. The order effectively rewarded the defendant for postponing the depositions “past the point of no return.” (Id. at p. 766.) Although the plaintiff “was not optimally diligent” in seeking the depositions and in following up with defense counsel, “this relatively minor lack of diligence did not justify the substantial injustice the court's order created”-particularly after the court had been lenient in accommodating the defendant's late summary judgment motion. (Id. at p. 766.)
Elkins v. Superior Court (2007) 41 Cal.4th 1337 (Elkins), superseded by statute on other grounds, did not involve summary judgment. It concerned a local court rule allowing declarations but not live testimony in marital dissolution trials and a related scheduling order. (Id. at pp. 1345-1347, 1354.) After concluding this rule conflicted with the hearsay rule, the court found it inappropriate to exclude the bulk of the husband's evidence as a sanction for violating the improper local rule. (Id. at pp. 1359-1360, 1363-1365.)
In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814 does not help Bautista. There, a litigant failed to establish good cause for continuing a contempt hearing. The trial court properly struck her papers opposing a sanctions motion because vacation is no excuse for late papers. (Id. at pp. 823-825.) This holding is not pertinent.
In Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 160 and 167, the trial court granted the defendants' summary judgment motion because the plaintiff filed her opposing separate statement of disputed material facts and declarations one day late. The defendants nevertheless timely replied, and the court had adequate time to consider the matter before the hearing. (Id. at p. 162.) The appellate court reversed summary judgment because the moving papers were flawed: these papers did not address a material fact in the complaint and therefore did not establish any entitlement to judgment. (Id. at pp. 160-162, 171-173.)
Parkview Villas Association, Inc. v. State Farm Fire and Casualty Co. (2007) 133 Cal.App.4th 1197, 1201-1202, reversed a summary judgment, but that case concerned a deficient yet timely separate statement. The defendant did not challenge the statement as inadequate; nor did the trial court comment on the statement at oral argument, when both parties argued the merits of the motion. (Id. at pp. 1205-1206, 1211-1212.) But in ruling on the motion, the court then refused to consider the plaintiff's supporting evidence. The appellate court concluded “there was no showing Parkview Villas had previously violated any pretrial rules or engaged in any dilatory conduct warranting imposition of a terminating sanction.” (Id. at p. 1216.) The trial court should have awarded appropriate, limited sanctions for the plaintiff's curable procedural error. (Ibid.)
In Kalivas v. Barry Controls Corporation (1996) 49 Cal.App.4th 1152, 1158, the appellate court took issue with a confusing “courtroom local rule” that conflicted with the separate statement requirement of section 437c, subdivision (b). This “impermissible” and “flawed” rule led plaintiff's counsel to think the defendant's summary judgment motion had been taken off calendar, so counsel did not file an opposition or a separate statement. (Kalivas, at pp. 1154 & 1161.) The appellate court found this conduct excusable, noting there was no showing the plaintiff previously violated any pretrial rules or engaged in dilatory conduct. The court reversed the summary judgment. (Id. at pp. 1161-1163.)
In Security Pacific National Bank v. Bradley (1992) 4 Cal.App.4th 89, 92, Bradley properly opposed the bank's motion for summary judgment, and the trial court denied the motion because its form was improper. On the second try, the newly self-represented Bradley did not submit a new separate statement, erroneously believing his first statement sufficed. (Id. at p. 98.) The trial court granted summary judgment due to the missing statement. It thus had afforded the bank but not the unrepresented litigant a chance to cure defective papers. (Id. at p. 92.) The appellate court reversed, finding these circumstances warranted giving Bradley a second chance to file his statement. “Notably absent from this action [were] the usual circumstances which support denial of a continuance: proximity to trial; prejudice to the other party; previous dilatory conduct; or, abuse of pretrial procedures.” (Id. at p. 96.)
Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 311, reversed summary judgment where the plaintiff's new counsel failed to file an opposition because they were unaware old counsel's opposition had been stricken. New counsel sought relief under section 473, subdivision (b), which the trial court denied. (Levingston, at p. 314.) The appellate court viewed this filing as a request for a continuance that should have been granted, as there were no compelling circumstances justifying this sanction. (Id. at pp. 315, 317-319.) It concluded: “The bottom line is that, under the circumstances here-no willfulness, no previous procedural abuses, and no prejudice-the trial court should not have scourged Levingston for her new counsel's sin.” (Id. at pp. 318-319.)
Finally, the Supreme Court case Bautista cites (Elkins, supra, 41 Cal.4th 1337) discusses another relevant Supreme Court case, Mann v. Cracchiolo (1985) 38 Cal.3d 18, overruled in part by Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543. Mann ruled a trial court abused its discretion in refusing to consider late-filed opposition papers. (Mann, at p. 30.) The high court recognized “[a]n attorney's neglect in untimely filing opposing papers must be evaluated in light of the reasonableness of the attorney's conduct.” (Id. at p. 29.) The court decided Mann before section 437c was overhauled in line with federal law to liberalize the granting of summary judgment motions. (Perry, at p. 542.) At that time, section 437c allowed these motions to be heard on 10 days' notice. It set no deadline for oppositions; but a local rule for motions did. (Mann, at pp. 27-28.) The plaintiffs faced 11 summary judgment motions, plus other motions, and had four days to respond to them. The plaintiffs filed their opposition four days late and two days ahead of the hearing. (Id. at pp. 26-27, 30.) Under these circumstances, the trial court erred in disregarding their opposition. Compliance with the local rule “would have required Herculean efforts.” (Id. at p. 30.)
Bautista faced a single summary judgment motion and no oppressive briefing schedule like the one in Mann. Bautista sought a continuance after the opposition deadline. Then she filed late papers without permission the day before the scheduled hearing. That conduct was unreasonable.
None of the decisions Bautista cites excuses her lack of diligence, which was marked. None shows the trial court abused its discretion in denying Bautista's eleventh-hour requests to continue the summary judgment hearing and to accept her tardy opposition.
Bautista argues the trial court acted unreasonably by continuing the summary judgment hearing for various reasons while refusing relief to her. It was proper, however, for the trial court to attempt to confirm the police department had no information of use to Bautista, and later to ensure her counsel had sufficient notice of the hearing, before deciding not to relieve counsel from her errors.
Bautista's reply brief suggests the trial court acted improperly because it showed a willingness to “abdicate its discretion” to City counsel. This characterization of the court's conduct is unfair. The court was trying to see whether the City would agree to the relief Bautista sought. This is proper.
B
Bautista concedes her opposition papers were untimely but argues we nevertheless must reverse the trial court because its rulings amounted to a terminating sanction, and courts should decide cases on the merits. She argues her failures amounted to a mere procedural error the trial court should have forgiven.
An order granting summary judgment based upon procedural error can be an abuse of discretion where there has been no history of abuse of pretrial procedures. (Elkins, supra, 41 Cal.4th at p. 1364, fn. 16.)
Bautista was dilatory in nearly every aspect of her case against the City-prosecuting it, serving discovery, taking depositions, marshaling opposition to the City's summary judgment attack, and seeking relief from the trial court.
Bautista attempts to deflect blame to the City, but the trial court did not abuse its discretion in judging this record as a whole. The trial court's refusal to grant Bautista a continuance and to accept her late papers was within the court's discretion.
C
Bautista argues the court improperly denied her relief under section 473, subdivision (b), because her late filings resulted from attorney “mistake, inadvertence, surprise, or excusable neglect.” This provision does not assist Bautista, even assuming she invoked it properly, which she did not.
Bautista's counsel first mentioned section 473, subdivision (b), in her supplemental declaration filed March 18, 2019. At this time, there was no adverse judgment or order against Bautista. Rather, counsel cited this statute in seeking prospective relief, before the hearing on the summary judgment motion. Bautista cites no case saying section 473 provides relief in such circumstances.
This statute does not come into play until a court has entered a judgment, dismissal, or order, or has made some other decision against a party. (See § 473, subd. (b) [“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her....” (italics added)]; ibid. [“the court shall... vacate any (1) resulting default entered by the clerk against [an attorney's] client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client....”].)
Assuming there was such an order in place when Bautista sought relief, mandatory and discretionary relief under the statute would be unavailable. (See The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1000 [§ 473, subd. (b)'s language provides no basis for extending the mandatory provision to summary judgments]; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226-229 [mandatory provision of § 473, subd. (b) does not apply to summary judgments]; id. at pp. 229-231 [§ 473, subd. (b)'s discretionary provision does not apply to attorney conduct falling below the professional standard of care, where mistake is the result of professional incompetence, or where surprise or neglect is inexcusable].)
A further problem is that Bautista's ex parte applications did not mention section 473, subdivision (b). Rather, Lim first raised this provision in her supplemental declaration filed two days before the scheduled summary judgment hearing. This was improper. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [the general rule of motion practice is “the trial court may consider only the grounds stated in the notice of motion”]; see also Cal. Rules of Court, rule 3.1204(a)(1) [ex parte notice must state with specificity the nature of the relief requested].)
D
Bautista's notice of appeal attacks other trial court rulings, but she forfeited these attacks by not briefing them. Bautista's notice states she is appealing from the trial court's March 18, 2019 orders denying her applications to compel the police department to produce documents and to deem requests for admission admitted, and from the court's April 24, 2019 order denying her application for a stay. When listing the issues to be resolved on appeal, Bautista's opening brief does not identify these rulings. Bautista's brief is lengthy but offers no argument about these rulings and therefore forfeits her challenge to them. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”]; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief must “support each point by argument and, if possible, by citation of authority”].)
E
Bautista argues her evidentiary objections made summary judgment improper. The trial court, however, properly disregarded these objections as untimely.
A party objecting to summary judgment evidence must file written objections that are timely or must object orally at the hearing. (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 851, fn. 11.) Written objections must be filed when a party files its opposition. (Cal. Rules of Court, rule 3.1354(a).) Bautista filed her objections on March 21, 2019, 15 days after her opposition was due and the day after the scheduled hearing. She did not appear at the hearing.
Bautista's objections were not properly before the trial court. They are not properly before us. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 [objections deemed made at the summary judgment hearing but not ruled on are preserved on appeal].)
F
The trial court's order granting summary judgment was proper. We independently review this decision. We consider the evidence before the trial court, except that to which the court sustained objections. (Bozzi, supra, 186 Cal.App.4th at p. 761.) Bautista may not defeat summary judgment by pointing to evidence the trial court properly disallowed. (See id. at p. 765.)
The summary judgment standard requires the moving party to show there is no triable issue of material fact and it is entitled to summary judgment as a matter of law, either by showing one or more elements of the cause of action cannot be established or there is a complete defense. The opposing party must then show the existence of a triable issue of material fact. (§ 437c, subds. (c) & (p)(2).)
Summary judgment “is no longer called a ‘disfavored' remedy” and is a particularly suitable means of testing the sufficiency of the plaintiff's case. (Garcia v. D/AQ Corp. (2020) 57 Cal.App.5th 902, 907.)
The City established its entitlement to judgment as a matter of law on Bautista's two claims.
Bautista sued the City for negligence and for maintaining a dangerous condition on government property. Both claims arose from the City's maintenance of Vinton Avenue, the site of the accident. Bautista's complaint is repetitive and unfocused, but it and Bautista's later judicial admissions show her case centered on shadows from the trees on Vinton Avenue, the supposed insufficient lighting, and the lack of signage.
First we explain why Bautista's claims do not raise a triable issue of material fact. Then we explain how Bautista narrowed the issues in the case.
1
Government Code section 835 provides for public entity liability for injuries caused by a dangerous condition of public property. The statute requires, among other things, a dangerous condition and proximate cause. The entity must have negligently or wrongfully created the condition or have had actual or constructive notice of the condition in time to correct it. (Ibid.) A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Id., § 830, subd. (a).)
The existence of a dangerous condition ordinarily is a question of fact. But we can resolve the issue as a matter of law if reasonable minds can come to only one conclusion. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133 (Zelig); see also Gov. Code, § 830.2.)
“[T]he absence of street lighting is itself not a dangerous condition.” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 133 (Mixon).) Bautista has not shown why we should extend existing law to create a duty to provide lighting-or unobscured lighting-on surface streets. (See ibid. [duty to light streets may exist if “peculiar condition” necessitates lighting]; see also Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41, 43-44, 51 [presence of large tree that caused “relative darkness” by a crosswalk not a peculiar condition necessitating lighting]; Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, 1444-1446 [city had no duty to install or maintain streetlight, and crosswalk was no more dangerous with inoperative light than if city had not installed light at all].)
This new statewide rule Bautista suggests would have enormous ramifications. Bautista does not tell us how many miles of surface roadway exist in California. Nor does she describe the cost of improving illumination for those miles. Nor does she explain why this public expenditure should take precedence over competing demands for public investments. Nor does she give us precedent that explains why it is legitimate for a court to mandate such a sweeping public works project, or how a court should reason about such an endeavor.
Turning to Bautista's complaint regarding the trees on Vinton Avenue, as a matter of law, permitting trees to cast shade and shadows on surface streets does not create a dangerous condition. Shade from trees is desirable, especially in sunny Los Angeles and especially as temperatures rise. When drivers and pedestrians use due care, tree shade poses no danger. (See Gov. Code, § 830, subd. (a).) Reasonable minds could not conclude otherwise. Drivers must be able to navigate streets in heavy cloud cover and in the dark of night.
The undisputed evidence also showed the trees on this part of Vinton Avenue were on private property and the City did not maintain them. Bautista cites no law suggesting the City had a right or duty to cut them.
Bautista claims the City was on notice of a dangerous condition, but the City submitted undisputed evidence to the contrary.
The evidence showed there were no complaints regarding this part of Vinton Avenue before Bautista's accident. A 10-year collision history report showed only one other midblock pedestrian crossing accident had occurred on this block, about 300 feet south of Bautista's accident.
This evidence bolsters the conclusion there was no dangerous condition. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243 [evidence of safety history (no similar incidents in past five years) relevant to existence of dangerous condition]; Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 380 [“absence of similar accidents or complaints” established intersection “did not constitute a dangerous condition for drivers exercising due care”].)
This leaves Bautista's complaint the City should have used signs or other safety devices on this stretch of road. This complaint also fails because liability cannot be based solely on a city's failure to install traffic control devices or warning signs. (Gov. Code, §§ 830.4 & 830.8; Mixon, supra, 207 Cal.App.4th at pp. 135-136; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 442 (Brenner).)
Further, nothing in the record suggests there was a “concealed trap” that would necessitate a warning. (See Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196-1197; Gov. Code, § 830.8.) Trees, their shadows, lighting, and the lack of lighting all are obvious to reasonable people. Everyone knows trees cast shadows. Drivers and pedestrians can see shadows. The shadow of a tree is not a trap.
The undisputed evidence also showed the following. This area of Vinton Avenue conformed to City standards. The street there is straight and level with no curves to obstruct visibility. Motorists have an unobstructed view of the road between Tabor Street and Regent Street. Pedestrians have an unobstructed view of motorists coming from each direction. At the time of the accident, the trees on Vinton Avenue were not growing into the street. There was not an unusual volume of traffic in the area. The area of Vinton Avenue where the accident occurred did not present a danger to pedestrians or motorists using reasonable care.
The trial court did not err in concluding the City met its burden of demonstrating there was no dangerous condition on Vinton Avenue.
The testimony in the case also undermines causation-it tends to show streetlights, trees, shade, and signage had nothing to do with this accident. The accident occurred around 5:00 p.m. on a December day. There was still some daylight, though it was getting dark. Bautista began crossing Vinton Avenue on foot, “really, really slow, like, really slow.” Bautista was following her niece and was looking at her. Rogers struck her with his car while traveling 20 to 25 miles per hour. She was midblock. A witness said the car's headlights were not on; Rogers said they were. Rogers testified nothing obstructed his view of this pedestrian; there was nothing in his way “vision-wise” preventing him from seeing Bautista before he hit her. He did not notice any trees or overgrowth on the street. He did not thinklighting was a factor in the accident. Rather, he failed to see Bautista because she stepped out from between two cars in front of him. The responding police officer also attributed the accident to Bautista's jaywalking.
Bautista's negligence claim falls with her dangerous condition claim. (See Zelig, supra, 27 Cal.4th at pp. 1131-1132 [no cause of action against public entity for ordinary negligence distinct from Gov. Code, § 835 cause of action]; Brenner, supra, 113 Cal.App.4th at p. 439 [“Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property.”].)
Summary judgment on both claims was proper.
2
Bautista's pre-suit claim form and her judicial admissions narrowed the case to the issues we have just covered.
After the accident, Bautista filed a pre-suit government tort claim with the City. Her claim form, dated April 1, 2016, states she “was injured while crossing the street. She was hit by a motor vehicle.” The form asserts three acts or omissions caused her injuries: “The failure to maintain overgrowth of trees limiting lighting at that time of day, street lights did not timely operate and the failure to provide sufficient roadway signage.”
Bautista says the City did not respond to her claim.
She filed her lawsuit three months later. Bautista's complaint asserts the City was liable for allowing a dangerous condition to exist at the accident scene. Its main focus was shadows from the trees on Vinton Avenue; but it also mentioned roughly a dozen factors contributing to the “dangerous condition” of Vinton Avenue: the street is heavily populated with considerable street parking; traffic has increased, and pedestrians regularly cross it; cars can go faster than is safe; there are insufficient traffic controls or warning signs; the City planned to paint a warning (“STOP AHEAD”) on the road but failed to do so; the street is narrow and was negligently designed; the City failed to provide “clear zones” or unobstructed areas of the street that allow drivers to see pedestrians; the City failed to install functioning lighting; the City failed to “exercise necessary tree trimming”; overgrown trees create “large, deep shadows” on the street that obscure drivers' views of pedestrians; the City did not get permits for the trees; and there is insufficient warning regarding the trees.
Bautista's pre-suit tort claim narrowed the case. While the claim need not detail the full factual basis for recovery, it frames the complaint: the complaint may not shift allegations and premise liability on actions or failures that fundamentally differ from those specified in the claim. (See Stockett v. Assn. of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.) Under the most lenient view, Bautista's claim form-which complains of lighting, trees, and signage-cannot be read as attributing her injuries to a narrow street. This street was constructed in 1915, so any complaint regarding its width is a complaint regarding different acts by the City at a different time. This fact bars this theory of a dangerous condition. (See id. at pp. 447-448; see also Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434 [government entity entitled to judgment if factual basis for recovery is not fairly reflected in the written claim].)
Lim's judicial admissions sharpened her case. At the March 20, 2019 hearing on Bautista's continuance request, the parties addressed the merits of the case. The trial court asked Lim what triable issues remained so it could determine, “are we engaging, for example, in an exercise in futility? Or is there actually a meritorious or a potentially-meritorious opposition?” Lim listed the following: (1) the impact of the narrowing of the street; (2) the City's notice of a dangerous condition and its failure to make the street safer through signs, speed bumps, or otherwise; and (3) the tree overgrowth and whether it blocks light and contributed to the dangerous condition. When pressed if there was anything else, Lim responded, “I think that covers it, your honor.”
This concession was binding. The trial judge was trying to cut through the pleadings to the actual dispute. This is the point of the summary judgment process. Bautista and her lawyer were obliged to be truthful and straightforward. (See Fassberg Construction Co. v. Housing Authority of the City of Los Angeles (2007) 152 Cal.App.4th 720, 752 [“an oral statement by counsel in the same action is a binding judicial admission if the statement was an unambiguous concession of a matter then at issue and was not made improvidently or unguardedly”]; Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269 [judicial admission, which may be an attorney's concession, is a conclusive concession of the truth of a matter]; People v. Pijal (1973) 33 Cal.App.3d 682, 697 [“It is, of course, well established that the defendant is bound by the stipulation or open admission of his counsel and cannot mislead the court and jury by seeming to take a position on issues and then disputing or repudiating the same on appeal”]; Bank of America Nat. Trust & Savings Assn. v. Lamb Finance Co., Inc. (1956) 145 Cal.App.2d 702, 708 [“In the absence of fraud, the admissions of an attorney in open court are binding upon the client.”].)
DISPOSITION
We affirm the judgment and award costs to the City.
We concur: GRIMES, Acting P. J., STRATTON, J.