Opinion
A146885
01-26-2017
HENRY LAW, Plaintiff and Appellant, v. MOLLY HALL-WEAVER et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC-12-520981)
Henry Law was injured when his bicycle collided with a vehicle driven by Molly Hall-Weaver. Hall-Weaver, along with two third party witnesses, claim Law ran a red light. It appears Law cannot remember the accident. Law filed a personal injury suit against Hall-Weaver and the owners of the vehicle, and the trial court entered summary judgment in favor of the defendants. Law now appeals, arguing the trial court erred in excluding a declaration by Lary McGrew, who Law retained to reconstruct the collision. We agree the declaration is inadmissible, as it is based on speculation and lacks foundation. We therefore affirm the grant of summary judgment.
I. BACKGROUND
The traffic accident at issue occurred on the morning of October 1, 2011, at the intersection of Kearny Street and Sacramento Street in San Francisco. Hall-Weaver was driving a 2011 Ford Fiesta westbound on Sacramento Street, and Law was riding his bicycle north on Kearny Street. The two collided near the middle of the intersection.
Officer Daniel Shiu arrived at the scene. Hall-Weaver told Shiu she had the green light, was traveling at about 15 to 20 miles per hour (mph), and struck a bike that had run a red light. Arthur Giesen also gave a statement to Shiu. According to the police report, Mr. Giesen said: " 'I was about to cross Kearny St on a green light when a bike going [northbound] on Kearny St in the right lane, who was going fast, ran the red light and a car going on Sacramento St, who had the green light, hit him.' " Law was unable to give a statement due to his medical condition. Based on the witness statements, Shiu determined Law caused the accident.
The extent of Law's injuries is unclear from the record, but they appear to be serious. In a declaration filed in 2015, Law stated he had been in the hospital since January 2013, he cannot speak or walk, and he has only limited use of his left hand. Law cannot remember the last few seconds before the accident. In his appellate briefing, Law asserts he suffers from retrograde amnesia.
Law filed a personal injury complaint against Hall-Weaver on May 22, 2012. Law also sued the owners of the vehicle, Whitney Scott and Claire Scott. In March 2015, defendants moved for summary judgment, arguing their conduct did not cause Law's injuries or damages. In support, they submitted Officer Shiu's police report, a declaration from Hall-Weaver, and excerpts from Mr. Giesen's deposition.
In her summary judgment declaration, Hall-Weaver made the following assertions. Just before the accident, Hall-Weaver was traveling west on Sacramento Street at about 25 mph. As she approached the Kearny Street intersection, she slowed to 15 to 20 mph because the light was red. When Hall-Weaver was about three car lengths from the crosswalk at the intersection, the light turned green in her direction of travel. Hall-Weaver proceeded into the intersection, and when she was halfway through, Law's bicycle struck the left side of her vehicle without warning.
As for Mr. Giesen, he testified he and his wife were visiting San Francisco on the morning of the accident. He was walking on Sacramento Street just before the accident and was waiting for the light to change so he could cross Kearny Street. When the light turned green, he and his wife began to cross Kearny, and he saw "a bike coming down very fast." Mr. Giesen testified the bike "went through the intersection and ran directly into a car that had just begun to move through the intersection." When asked how long after the light changed the accident occurred, Mr. Giesen stated: "[W]e had taken a couple of steps into the intersection—excuse me. Not the intersection, but crossing the street when we saw the bike. And seconds after that, the collision occurred, less than a second after that. It happened very, very quickly." Mr. Giesen later stated he took a step or two into the intersection when he saw the bike go through intersection, and he had taken two or three steps into the intersection before the accident happened. Mr. Giesen said Shiu's police report was accurate except that the bicycle hit the car, not the other way around.
In opposing the motion for summary judgment, Law submitted his own declaration. Law stated the last thing he remembered before the accident was riding on Kearny Street, near Sacramento Street. He was moving at about 8 mph, his light was green, and he was about 10 meters from the crosswalk. Law stated the last position he could remember is marked in a photo attached to his declaration, though we cannot discern from that photo exactly what Law believed his position was.
Law also submitted a declaration from Lary McGrew, who was retained to reconstruct the collision. McGrew opined it was "very likely" Law's bicycle was either already in the "intersection proper" or in the south crosswalk committed to crossing the intersection at the time Hall-Weaver's light turned green. This conclusion was purportedly based on the location of the collision in the intersection and Law's and Hall-Weaver's statements regarding their speeds prior to the accident. McGrew acknowledged Mr. Giesen's statement that Law ran the red light, but asserted it was inconsistent with what Giesen reported seeing. Defendants objected to the admission of the declaration.
Defendants filed a reply brief in support of their motion for summary judgment. In support of the reply brief, defendants filed the declaration of Mr. Giesen's wife, Peggy Giesen. Mrs. Giesen said she and her husband were walking east on Sacramento Street when they stopped at the intersection with Kearny Street. When their light turned green, they entered the crosswalk. Mrs. Giesen then saw a bicyclist on their right, at least two car lengths away, maybe more, from the crosswalk. The cyclist was traveling very fast, at least 15 mph, and he had his head down. Mrs. Giesen realized the cyclist was not attempting to stop for the red light, and she saw the vehicle on Sacramento Street had begun to enter the intersection. She yelled a warning for the cyclist to stop, but he continued into the intersection and struck the car. Law objected to the admission of Mrs. Giesen's declaration.
In an order entered May 29, 2015, the trial court granted defendants' motion for summary judgment and sustained defendants' objections to McGrew's declaration. The order does not expressly rule on Law's objection to Mrs. Giesen's declaration. At the summary judgment hearing, Law's counsel asked the trial court whether it intended to rule on this objection. The court responded, "I don't know that I have to," explaining it was persuaded by other salient points raised by defendants.
II. DISCUSSION
We review the trial court's decision to grant defendants' motion for summary judgment de novo. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Summary judgment must be granted if all the papers and affidavits submitted, together with "all inferences reasonably deducible from the evidence" and uncontradicted by other inferences or evidence, show "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) Where, as here, the defendant is the moving party, he or she may meet the burden of showing a cause of action has no merit by proving one or more elements of the cause of action cannot be established. (See id., subd. (o)(1).) Once the defendant has met that burden, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) We must consider all evidence in the light most favorable to the nonmoving party, which in this case is Law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Defendants met their initial burden here. The evidence presented by defendants indicates Law, not Hall-Weaver, caused the accident. According to Hall-Weaver's declaration, her vehicle was hit by Law's bicycle as she was proceeding through a green light at the intersection of Kearny and Sacramento Streets. The declaration also indicates Hall-Weaver's light turned green when she was at least three car lengths away from the intersection. Hall-Weaver's account is corroborated by Mr. Giesen, who testified Law's bicycle entered the intersection after Hall-Weaver's light turned green and he and his wife had taken one or two steps into the intersection. It is also corroborated by Mrs. Giesen's declaration.
Law also argues the trial court erred in admitting the declaration of Mrs. Giesen. But in light of the other evidence submitted by Hall-Weaver, and the fact that Law did not submit any admissible evidence indicating Hall-Weaver was negligent, the admissibility of Mrs. Giesen's declaration is moot. As the trial court held, summary judgment was proper, regardless of whether Mrs. Giesen's declaration was admissible. --------
Thus, the burden shifted to Law to demonstrate the existence of a triable issue of fact. He failed to meet that burden. Law's declaration is unhelpful, as he appears unable to remember what happened at the time of the accident or the moments leading up to it, including his speed and the color of the traffic light. Accordingly, Law does not meaningfully contradict any of the factual assertions made by Hall-Weaver or Mr. Giesen. The only evidence Law offered concerning who had the green light and who entered the intersection first was from McGrew, his expert, who did not actually witness the accident. We agree with the trial court McGrew's declaration was inadmissible, since it was based on speculation and lacked foundation.
In his declaration, McGrew asserts Law's bicycle entered the intersection before Hall-Weaver's car. He reached this conclusion based on the location of the accident in the intersection, and his estimate of the speed of the two vehicles at the time of the accident. McGrew opines that since both vehicles traveled the same distance into the intersection, and Hall-Weaver's car was going faster than Law's bicycle, the bicycle must have entered the intersection first.
McGrew also concluded the signal for Law's direction of travel turned red after he had entered the intersection. This conclusion was based on Mr. Giesen's statement to police that, just as his light turned green and he was about to cross, he observed Law's bicycle enter the intersection. McGrew explained: "The process described by [Mr.] Giesen involving 'perceiving' an event and forming the idea of action (such as perceiving the light turn green and forming the idea of walking) is universally accepted by accident reconstructionists to take .75 second[s]. At one second prior to the collision, that is, before the light changed green for Mr. Giesen and Ms. Hall-Weaver, Mr. Law's bicycle was already entering the intersection." McGrew acknowledged Mr. Giesen testified he saw Law run a red light, but asserted this was inconsistent with what Mr. Giesen reported seeing.
Finally, McGrew rejected Hall-Weaver's claim that she did not observe any vehicles when she entered the intersection. McGrew asserted Hall-Weaver's vision, even before her light turned green, would include the entire approach to the south crosswalk on Kearny Street. McGrew conceded there was a skyscraper obstructing the view of Kearny Street, and that a driver on Sacramento Street would have an even worse view if there were cars parked near the intersection. Nevertheless, McGrew insists Hall-Weaver must have been able to see Law in the intersection because, "from a position slightly further back than Ms. Hall-Weaver was in when she claims her light turned green, she should still see the entire south crosswalk and intersection ahead. At that point in time[,] she would still have between 2 to 2.5 seconds to react to traffic entering the crosswalk from her left on Kearny Street." According to McGrew, this was enough time for Hall-Weaver to perceive and react to any vehicle attempting to go through Kearny Street on a yellow light and bring her vehicle to a stop.
There are several problems with McGrew's declaration. As an initial matter, if Law ran a red light, it is irrelevant whether he entered the intersection first. As discussed, all of the witnesses to the accident who can remember what happened claim Law went through a red light. Hall-Weaver stated her light turned green well before she entered the intersection, indicating Law had a red in his direction of travel. Likewise, Mr. Giesen testified the light for east- and westbound travel turned green, he took one or more steps into the intersection, and he then saw Law go through the intersection traveling north on Kearny.
Moreover, McGrew's conclusion that Law had the right of way when he entered the intersection is based entirely on speculation about what Mr. Giesen saw and when he saw it. Specifically, he speculates that Mr. Giesen observed Law in the intersection around the same time he saw the light change, and because of the delay in " 'perceiving' an event and forming the idea of action," Law must have entered the intersection before his light turned red. But as discussed, Mr. Giesen testified that, after Hall-Weaver's light turned green, he took one or more steps into the intersection, and then saw the bike go through intersection. Pointing to the police report, McGrew suggests Mr. Giesen offered inconsistent statements as to when he saw Law. But the police report does not specify when Mr. Giesen first noticed Law. It merely states that Mr. Giesen told Officer Shiu: " 'I was about to cross Kearny St on a green light when a bike going [north] on Kearny St . . . ran the red light.' " The only time Mr. Giesen discussed the point at which he first saw Law was at his deposition. And contrary to McGrew's assertions, Mr. Giesen's deposition testimony was consistent on this point—Law rode into the intersection well after his light turned red.
McGrew's conclusion that Hall-Weaver had enough time to perceive and react to Law is also speculative, as it assumes, without foundation, that Law was going through the intersection on a yellow light. McGrew also assumes Hall-Weaver had an unobstructed view of the intersection, even though he concedes her view might have been blocked if there were cars parked along the side of the road near the intersection. Ultimately, the only competent evidence about what Hall-Weaver saw or was able to see before she entered the intersection comes from Hall-Weaver's own declaration. As discussed, that declaration supported the grant of summary judgment. There also appears to be no foundation for McGrew's conclusion that Hall-Weaver should have been able to avoid the accident with only one or two seconds' notice, especially since McGrew repeatedly asserts that it takes .75 seconds for a person to perceive an event and then form an idea of how to react.
Because the only admissible evidence before the trial court indicated Law caused the accident by running a red light, we conclude the trial court properly granted defendants' motion for summary judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.