The opinion of the court was delivered by: Marilyn Hall Patel United States District Court Judge Northern District of California
A resident of Minnesota, plaintiff Beverly Schultz rode a San Francisco commuter train on December 2, 2002. She has brought this action against defendants Does 1 through 50 and Roes 1 through 50 of the San Francisco Bay Area Rapid Transit District (collectively "BARTD"), alleging that the acceleration of a BARTD train caused her personal injuries. After a series of court orders to pare down her complaint to omit improper causes of action, plaintiff timely filed a revised Second Amended Complaint that includes claims arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. section 12131 et seq. and the Transportation Act, 42 U.S.C. section 5300 et seq., as well as state law claims of negligence, common carrier negligence, premises liability, willful failure to warn, and dangerous condition of public property. Presently before the court is defendant's motion for summary judgment on each of plaintiff's claims, or in the alternative, for partial summary judgment. The motion was deemed submitted without need for oral argument. For the reasons set forth below, the court rules as follows.
Beverly Shultz alleges that she sustained a broken hip when she was knocked to the floor of a San Francisco Bay Area Rapid Transit District ("BARTD") train as it departed a station. In her First Amended Complaint, plaintiff alleged causes of action for negligence, premises liability, willful failure to warn, dangerous condition of public property, product liability, pendent jurisdiction, negligent infliction of emotional distress, and respondeat superior. On February 23, 2004, defendant filed a motion for partial summary judgment as to plaintiff's products liability cause of action and plaintiff's claims for punitive damages and attorney's fees. The motion was granted by the court as unopposed on April 29, 2004.
On a motion for leave to amend, plaintiff submitted a draft Second Amended Complaint which included new claims under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, strict liability, and numerous violations of California state law. At a hearing on September 27, 2004, this court instructed plaintiff to redraft the complaint, paring it down to its essence as a negligence claim founded on diversity jurisdiction and eliminating erroneous causes of action such as "pendant jurisdiction." Plaintiff timely filed a redrafted Second Amended complaint which pleads six causes of action: violations of Title II of the ADA, common carrier negligence, negligence, premises liability, willful failure to warn, and dangerous condition of public property. Defendant's motion to strike those portions of the complaint which did not relate to a negligence theory of the case was denied.
In the present motion, defendant has moved for summary judgment as a matter of law for the following reasons: (1) each of plaintiff's causes of action is barred by BARTD's affirmative defense of design immunity under California Government Code section 830.6, (2) plaintiff cannot establish the required element of causation, (3) plaintiff cannot establish that allegedly deficient conditions were dangerous, as defined in California Government Code section 830(a), (4) plaintiff cannot establish that BARTD had actual or constructive notice of the allegedly deficient conditions, as required by California Government Code section 835, and (5) plaintiff has offered no evidence to support her federal claims.
On the Thursday before this court's Monday hearing, nearly three weeks after the filing deadline for her opposition, plaintiff filed an attorney affidavit and objections to evidence. The document is a series of numbered paragraphs containing enumerations of the discovery sought in the case, piecemeal legal arguments opposing the motion for summary judgment, assessments of BART's safety from a 1976 report on passenger injuries, and undocumented factual claims about plaintiff's condition.
Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.
I. Failure to Oppose the Motion for Summary Judgment Defendant filed the present motion for summary judgment with this court on March, 28, 2005.
Consistent with this court's local rules, a hearing on the motion was set for May 2, 2005. Under Local Rule 7-3(a), plaintiff Beverly Schultz was required to file any opposition to defendant's motion at least twenty-one (21) days before the hearing-that is, by April 11, 2005. See Local R. 7-3(a) ("Any opposition to a motion must be served and filed not less than 21 days before the hearing day."). Local rules are "laws of the United States," and they will be enforced unless they are inconsistent with the Federal Rules of Civil Procedure. See Marshall v. Gates, 44 F.3d 722, 724 (9th Cir. 1995). Plaintiff did not file an opposition to defendant's motion, nor did she seek an extension of time in which to do so.
Seventeen days after the deadline for her opposition and two business days before this court's hearing, plaintiff filed "objections to evidence" in the form of an attorney affidavit. The affidavit frames legal arguments and factual attestations as personal knowledge subject to attorney testimony. The so-called affidavit is an amalgamation (driven more by free association than by logic) of excerpts from the complaint, snippets of case citation, raw factual speculation, requests for discovery, and objections to the objectivity of defendant's evidence. The court is at a loss to imagine an affidavit more at odds with the federal rule governing summary judgment. See Fed. R. of Civ. Pro. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein"). Though the document purports to state objections to evidence, the attorney fails to articulate even one federal rule of evidence or other grounds for objection. Even were this court to construe the paper as a ...