Opinion
A165839
05-04-2023
LAURO GARCIA, Plaintiff and Appellant, v. SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, Defendant and Respondent.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 16-CV-297131
BURNS, J.
After he was injured in an accident involving a car and a light rail train, Lauro Garcia sued the Santa Clara Valley Transportation Authority (Authority) and the City of San Jose (City), alleging a cause of action for dangerous condition of public property (Gov. Code, § 830 et seq.). The City and the Authority filed separate motions for summary judgment, which the trial court granted. Garcia appeals only from the judgment entered in the Authority's favor, arguing that the trial court abused its discretion in granting the Authority's unopposed motion for summary judgment. We disagree and affirm.
This matter was transferred by California Supreme Court order on August 9, 2022 from the Sixth Appellate District (No. H049181) to the First Appellate District.
Background
In 2015, Garcia was riding in a car driven by Aldo Juan Alvarez. The car was heading southbound on Capitol Avenue and then stopped at a red light at the intersection of Capitol Avenue and Madden Avenue. Alvarez attempted to make an illegal U-turn across a set of light rail tracks. The car was struck by an Authority light rail train, which was traveling southbound on Capitol Avenue. Garcia sustained injuries and Alvarez was killed.
In its motion for summary judgment, the Authority contended that Garcia could not establish its liability because there was no dangerous condition (as defined by Gov. Code, § 830, subd. (a)) at the intersection where the accident occurred; there was no triable issue of fact as to whether the location of warning signs at the intersection caused Garcia's injuries; and, in any event, design immunity bars Garcia's claim. In its motion, the City similarly asserted that Garcia could not establish elements of his claim for dangerous condition of public property- dangerous condition and causation-and that the City could not be held liable due to design immunity.
Garcia opposed the City's motion for summary judgment but did not file any opposition to the Authority's motion, which was served on Garcia's counsel and calendared to be heard on the same date as the City's motion. Five days before the summary judgment hearing, the Authority filed and served a notice of nonopposition. The trial court issued its tentative ruling and Garcia did not give notice of his intent to appear and contest the tentative ruling. On the date of the hearing, Garcia filed a proof of service for an ex parte application to continue the hearing on the Authority's motion. However, no application, motion, or supporting declaration was filed.
The trial court granted both the City's and the Authority's motions for summary judgment. In granting the City's motion, the trial court concluded the City met its burden to show there was no triable issue of material fact with respect to the existence of a dangerous condition, causation, or design immunity and that Garcia failed to raise a triable issue in his opposition. The court also determined that the Authority was entitled to summary judgment because Garcia failed to oppose its motion. The court entered judgment against Garcia and in favor of the Authority.
Discussion
A.
Garcia argues that the trial court abused its discretion by granting the Authority's motion for summary judgment-on the ground that he failed to file opposition-and by denying his request to continue the summary judgment hearing. We disagree.
1.
Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment has the burden of demonstrating this standard is met-either by showing (through evidence referenced in a separate statement of undisputed facts) that an essential element of each cause of action cannot be established or that there is a complete defense. (§ 437c, subds. (b)(1), (p)(2); Aguilar, supra, at pp. 850, 854.) Once the moving party has met its burden, the burden shifts to the opposing party to present evidence that demonstrates a triable issue of fact. (§ 437c, subd. (b)(3); Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)
Undesignated statutory references are to the Code of Civil Procedure.
Section 437c, subdivision (b)(3), requires any opposition to a summary judgment motion include "a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed." A party's failure to comply with this separate statement requirement "may constitute a sufficient ground, in the court's discretion, for granting the motion." (§ 437c, subd. (b)(3).)
Even if no opposing separate statement is filed, a trial court may not grant a motion for summary judgment unless the moving party has met its initial burden of proof. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.)
We generally review a trial court's summary judgment ruling de novo. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 827.) However, we review the trial court's decision for abuse of discretion when it relies on the opposing party's failure to comply with procedural requirements. (Parkview Villas Assn., Inc. v. State Farm Fire &Casualty Co. (2005) 133 Cal.App.4th 1197, 1208.)
2.
The trial court did not abuse its discretion by granting the Authority's unopposed motion for summary judgment.
By failing to address the issue, Garcia concedes that the Authority carried its initial burden of demonstrating the absence of any triable issue of material fact. And our independent review of the record confirms that the Authority made a prima facie showing sufficient to shift the burden.
As noted above, the Authority and the City filed motions for summary judgment raising similar arguments. Specifically, the Authority argued (among other things) that it was entitled to summary judgment because the relevant intersection did not present a dangerous condition and because Garcia could not prove causation. A dangerous condition exists when a condition of public property creates a substantial risk of injury to those using the property in a reasonably foreseeable manner with due care. (Gov. Code, § 830, subd. (a); Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 ["a public entity is only required to provide roads that are safe for reasonably foreseeable careful use"].)" 'If [] it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not "dangerous" within the meaning of [Government Code] section 830, subdivision (a).'" (Chowdhury, supra, at p. 1196.)
In support of its motion, the Authority presented discovery showing that Garcia admitted the relevant intersection had (at the time of the accident) posted and visible signs prohibiting left and U-turns, that Alvarez violated the Vehicle Code by making a U-turn at the involved intersection, and that Alvarez's failure to obey the posted signs caused the accident. Accordingly, if a driver used due care at the intersection (by obeying posted and visible signage), the fact that there were no additional signs (or signs in locations closer to the left-hand lane) did not pose a reasonably foreseeable risk of harm; the risk of harm is created only by a foreseeable user's failure to use due care. The Authority met its initial burden by presenting evidence that showed no genuine issue of material fact was in dispute and that it was entitled to judgment on Garcia's dangerous condition cause of action as a matter of law. (See Gov. Code, § 835; Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148 ["existence of a dangerous condition is ordinarily a question of fact . . . but it can be decided as a matter of law if reasonable minds can come to only one conclusion"].)
Yet, despite being served with the Authority's noticed motion, Garcia did not file timely opposition to the motion (see § 437c, subd. (b)(2)), much less file an opposition that met his separate statement obligation (§ 437c, subd. (b)(3)). In this situation, the trial court has discretion to either grant the motion for failure to file an opposing separate statement or to continue the motion to allow the filing of a cured opposition. (§ 437c, subd. (b)(3); Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893; Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94.)
Here, the circumstances support the trial court's decision to grant the motion rather than give Garcia additional opportunities to cure the defect. This was not the first time that Garcia had wholly failed to file an opposition to a summary judgment motion. In fact, the City and the Authority had filed (in 2019) an earlier round of motions for summary judgment, or in the alternative, summary adjudication. At that point, Garcia opposed the Authority's motion but, due to attorney error, failed to file a timely opposition to the City's motion. In the 2019 instance, the trial court continued the hearing, allowed Garcia to file a late opposition, and decided both motions on their merits.
Furthermore, even after the Authority filed and served a notice of non-opposition five days before the instant summary judgment hearing, Garcia did not seek permission to file a late opposition. Nor did he request a continuance by filing either a noticed motion or an ex parte application. Instead, on the day of the summary judgment hearing, Garcia filed only a proof of service, with no accompanying motion, application, supporting declaration, or opposition containing a separate statement.
Despite having failed to properly contest the tentative, Garcia's counsel appeared at the hearing and stated vaguely that "the opposition was not calendared due to mistake and inadvertence." When the court nonetheless allowed Garcia to argue his opposition to the tentative, Garcia did not identify any legal or factual issue that he would raise in an opposition to the Authority's motion that he had not raised in opposition to the City's motion, both of which raised the same arguments. In short, Garcia gave the court no reason to think that a continuance would serve any purpose except delay.
On the record before us, the trial court did not abuse its discretion in granting the motion for summary judgment and implicitly declining to continue the hearing. (See Blackman v. Burrows, supra, 193 Cal.App.3d at pp. 893-894 [no abuse of discretion shown when motion granted (without prejudice to filing motion for reconsideration) for failure to file separate statement and, despite notice, opposing party again failed to provide separate statement when it filed motion for reconsideration].) The cases cited by Garcia are distinguishable. (See, e.g., Security Pacific Nat. Bank v. Bradley, supra, 4 Cal.App.4th at pp. 95-96, 98-99 [trial court abused its discretion by granting summary judgment on procedural grounds when opposing pro per had not willfully refused to comply with § 437c and had not previously violated court procedures or engaged in dilatory conduct].)
B.
We reject Garcia's argument that the trial court abused its discretion in denying his ex parte application for reconsideration. Garcia forfeited this point by failing to present reasoned argument, under a separate heading in his opening brief on appeal, addressing the trial court's reason for rejecting his motion for reconsideration. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277-278; In re S.C. (2006) 138 Cal.App.4th 396, 408.) It is not our role to construct arguments on an appellant's behalf. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
In his reply brief, Garcia confronts (for the first time) the procedural reason that the trial court gave for rejecting his reconsideration application. His belated attempt to substantively address the issue does not save it from forfeiture. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) Accordingly, we need not consider the argument further.
Disposition
The judgment is affirmed. The Authority is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: SIMONS, ACTING P.J., LANGHORNE, J. [*]
[*] Judge of the Napa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.