IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
January 27, 2012
ANA MEJIA ET AL., PLAINTIFFS AND APPELLANTS,
FAHAD OLOMARI, DEFENDANT AND RESPONDENT.
(Super. Ct. No. CV029222)
The opinion of the court was delivered by: Butz , J.
Mejia v. Olomari
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiffs Ana and Sandra Mejia*fn1  appeal from the entry of judgment against them on their complaint for personal injuries after the trial court granted defendant Fahad Olomari's motion for summary judgment. Plaintiffs contend the trial court erred in excluding their expert's declaration, and in finding that the evidence did not otherwise establish that defendant owed them any duty. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Standard of Review
Under the "historic paradigm" for our de novo review of a motion for summary judgment (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735), we first identify the material issues as framed in the pleadings. We then determine whether defendant's evidence entitles him prima facie to judgment in his behalf on these issues. Finally, we consider whether plaintiffs' evidence creates a factual conflict with respect to any of these issues that only a trier of fact can resolve. (Ibid.) We can merge the latter two steps in this case, because even if the parties dispute the legal significance of certain facts, they do not identify any disputes about the material historical facts themselves.
Plaintiffs did not designate any documents in their request for preparation of a clerk's transcript on appeal, which resulted in a record containing only the ruling on the motion, the judgment, and the notice of appeal. We granted their subsequent motion to augment the record in this court with the pertinent documents (which are at least paginated, even if not indexed).
Plaintiffs filed the original (and apparently only) complaint in May 2006. It alleged that in May 2004, plaintiffs were about to enter defendant's Tracy grocery store in the early evening to buy some of his wares. A drunken driver overshot the end of a parking stall and drove onto a walkway, on the west side of the store, on which plaintiffs were standing. The vehicle pinned Ana against the wall and inflicted serious injuries. The remainder of the complaint contains conclusory allegations of a duty on the part of defendant to plaintiffs. Ana sought damages as a "direct victim" of defendant's negligence, and Sandra sought damages as a "percipient family member." (E.g., Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, 389-390 [discussing these theories of liability].)
A cause of action for negligence requires a plaintiff to establish a duty on the part of a defendant (in addition to the defendant's breach of that duty that was both the actual and proximate cause of the plaintiff's damages). (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1160.) The existence of a "duty," which is a question of law (id. at p. 1159; Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 993 (Jefferson); 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 860, p. 85),*fn2  represents the result of an aggregation of policy factors weighing in favor of the imposition of liability in the abstract in a particular set of circumstances. As with the element of proximate cause, the foreseeability of injury has a preeminent role in the analysis. (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 739; Smith v. Freund (2011) 192 Cal.App.4th 466, 472; Burns v. Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 487-488; Sagadin, supra, 175 Cal.App.3d at p. 1159.) However, it is the general nature of the accident and the resulting harm, not the nature of the particular facts of the occurrence, with which a court is concerned. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6; Burns, supra, 173 Cal.App.4th at p. 488; Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1299 (Robison).) The existence of a duty on the part of defendant Olomari--the foreseeability generally of an accident of this nature--is accordingly a material issue that this pleading calls into question.
Defendant's statement of undisputed facts confirmed the well-pleaded factual allegations of the complaint. Ana approached the entrance of defendant's store on the walkway separating the parking lot from the store's side wall. Sandra was in front of her, about three parking stalls from the front door. The cross-defendant (Gurjit Singh Gil, whom defendant Olomari was able to serve only by publication, and who defaulted) was driving under the influence of alcohol. He entered the parking lot, overshot the end of the parking stall and jumped over the dividing curb, pinning Ana against the wall. Sandra heard the sound of the accident and immediately turned and observed Ana's condition. Plaintiffs did not dispute any of these facts (other than raise an objection to the claim that the cross-defendant was drunk, which they themselves had alleged, and as to which Sandra had offered her opinion in her deposition). As a result, we do not need to consider the evidentiary underpinnings of these facts.
Defendant asserted as undisputed facts that he did not have any knowledge of previous incidents in which vehicles in the parking lot had struck patrons on the walkway, and that his store did not provide any service that required a patron to stand in a fixed location on the walkway to obtain it. He based these facts on his declaration in support of the motion and the discovery responses of plaintiffs. Other than an objection to defendant's personal knowledge of the lack of prior incidents, plaintiffs did not produce evidence to contradict defendant's facts.
In his description of the premises in the statement of undisputed facts, defendant asserted that the walkway had an adjacent raised curb of an unspecified height that was not in violation of any code or ordinance, and that the absence of wheel stops in the parking stalls also did not violate any code or ordinance. Defendant's declaration had described the walkway only as having a "raised curb"; in her deposition, Sandra had described a "raised part of cement" about 15 centimeters (six inches) high. A senior city planner and a plan reviewer stated in depositions that the parking lot improvements predated the city code; while there were nonconforming elements, these were grandfathered conditions that consequently did not violate any city code or ordinance regarding the manner of separating the parking stalls and the walkway. The only requirement for wheel stops in the municipal code was at the head of a handicapped parking stall in lieu of a curb.*fn3  In their interrogatory responses, neither plaintiff could identify any violation of a code or ordinance.
Plaintiffs asserted there were disputed facts as to whether the walkway or the curb was in compliance with unspecified "acceptable engineering standard[s]" of six inches for the curb, and a prevailing practice of five feet in width for a walkway elevated above a curb. They based this assertion on their expert's declaration, who had described the curb as an elevated divider less than four inches higher than the parking lot and slightly more than five inches higher than the walkway, the latter of which was four feet wide. Plaintiffs also cited a section of the testimony of the city planner in which he identified a provision in the municipal code for either wheel stops or six-inch curbs where a parking stall was adjacent to a walkway, but had said it would not apply to defendant's parking lot unless there was a change in use of the property.*fn4  The expert's declaration also asserted violations of a "[c]ity" code (citing "Chapter 9-1020.3[, subd.] (e)") and a violation of a "[c]county" code (citing "Chapter 9-1015.10[, subd.] (a)(4)").*fn5 
In his reply, defendant provided a copy of what is, in fact, title 9, division 10, section 9-1020.3, subdivision (e) of the San Joaquin County Ordinance Code (notwithstanding plaintiffs' expert's identification--and defense counsel's authentication--of it as a city ordinance). This is a landscaping ordinance, and the chapter applies to the separation of landscaping or screening adjacent to parking stalls or driveways. Defendant also provided what is indeed section 9-1015.10 of the same division and title of the county code, which governs the requirements for handicapped parking. Finally, defendant objected to admission of the expert's declaration in opposition to the summary judgment motion. As he argued at greater length in his reply to plaintiffs' opposition, defendant challenged (1) the expert's assertion of a purported standard of a five-foot elevated width for the walkway and the unspecified engineering standard of a six-inch curb as lacking foundation, (2) the expert's citation to inapposite ordinances as being misleading, and (3) the expert's opinion that the walkway's condition was dangerous as being conclusory.
In its ruling, the trial court sustained the objection to the expert's declaration without elaboration (later describing the opinion as lacking any foundation). As we review the ruling de novo, we do not need to elaborate on its analysis (nor do we need to respond to plaintiffs' claims that it misstated the facts). The court relied at length on Jefferson, supra, 28 Cal.App.4th 990, to conclude that the circumstances of the present case do not come within any of three categories of cases that have found a duty to exist where a third party motorist causes an injury to a patron. The court entered judgment in August 2009. Plaintiffs filed their notice of appeal 60 days after the September 2, 2009 service of the notice of entry of judgment.
I. Exclusion of the Expert's Declaration
We rearrange the order of plaintiffs' briefing to put the horse in front of the cart. Our initial query is whether the trial court properly excluded the expert's declaration from plaintiffs' evidence opposing the motion, before we consider whether their remaining evidence demonstrates any triable issue of material fact.
An expert declaration must provide a reasoned explanation of the connection between its evidentiary basis and its opinion, without which it is conclusory. The opinion also cannot rely on assumptions or speculation. When a declaration fails to meet these standards, even when afforded the broad construction to which an opposition declaration is entitled, it is proper for a court to exclude it. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 307-308; Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 (Bushling); cf. Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 [analogous standards for special motion to strike].) As with review generally of evidentiary rulings (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900), a trial court's evidentiary rulings in connection with a motion for summary judgment are reviewed for abuse of discretion (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 (Carnes) [cited as being in accord with the weight of authority in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4]).*fn6  With these standards in mind, we return to the contents of the expert's opposing declaration in the present case.
The expert described his specialty as being "traffic safety investigation and roadway design." He provided a curriculum vitae and attested to his experience of over 30 years "in a wide variety of traffic and civil engineering functions," which had included appearing as an expert witness in numerous courts. He inspected the site of the accident in August 2007, and reviewed photographs, the depositions of the city planner and the plan reviewer, the planning codes of the city and the county, and the records of the county assessor's office.
In describing the site, he stated the walkway was less than four feet wide, then asserted ipse dixit that "[m]ost commercial sidewalks are a minimum of [five] feet in width." In the absence of wheel stops, the protrusion of the front ends of cars into the walkway also left a usable width of the walkway of one to two feet. Contrary to the lot's configuration, "correct construction of a sidewalk places it above the height of the adjoining curb"; again, the declaration does not give any source for this assertion. As the walkway is slightly lower than the surface of the parking lot, the expert believed a vehicle jumping the divider could become trapped, although the expert did not explain how this had any relevance to injuries after the vehicle had already pinned a pedestrian against the wall of the store. The expert offered a legal conclusion that the conditions in the parking lot were not consistent with certain code provisions, without providing the text (or a proper citation) of any provision prescribing six-inch curbs or the need for wheel stops in the absence of a curb. His review of the assessor's records determined that the structure had been built in 1949, after the city had annexed the area, and thus the parking lot should have been subject to the city's codes.
The expert also asserted that the "acceptable engineering standard" and "traffic engineering guidelines" did not consider the divider next to the walkway to be a true curb because it was less than six inches (without further identifying the source of the standard or guidelines). In a similar vein, unspecified "codes of other California cities and counties, as well as good engineering practice" dictated that wheel stops are required for the parking stalls. He also criticized the level of maintenance of the lot that he observed in 2007.
He concluded the declaration with his opinion that "[t]he construction and condition of the . . . parking lot is not within any recognized standard of care and is a dangerous condition of private property.[*fn7 ] The lack of placement of wheel stops . . . created a condition which gave rise to the subject collision . . . ." Because the divider did not "conform to the acceptable [six-]inch curb[,] [t]his, too, created a condition which contributed to the occurrence of the [accident]."
Plaintiffs first assert that, "[i]n this case, it appears that the trial court adopted as its own the false statements about the content of [the expert's] declaration that defendant proposed, without making an independent analysis of the content of the declaration." They claim the trial court otherwise would have seen the "abundantly specific" provision of "the exact sources for [the declarant's] factual references." They also fault the court's use of the phrase "even if [the] declaration were considered by the court" in concluding the declaration would not create triable issues of fact in any event. These arguments, however, do not amount to affirmative evidence of any "abdication" of the trial court's official duty (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324; Evid. Code, § 664), as in Carnes, supra, 126 Cal.App.4th at page 691, where the court issued an order that granted the motion without any elaboration, and directed the prevailing party to draft the reasoning and provide rulings on the evidentiary objections. We therefore reject the effort to malign the trial court as having held a "sham" hearing.
Ignoring the requirement that the expert must provide a reasoned explanation of the connection between his opinion and its evidentiary basis, plaintiffs argue the declaration was competent to establish triable facts regarding the lack of a legal walkway (which they contend is material to the analysis of duty in Jefferson, supra, 28 Cal.App.4th 990) and the existence of code violations based on the lack of curbing or wheel stops. Assuming these are not questions of law on which an expert cannot offer an opinion (e.g., Williams v. Coombs (1986) 179 Cal.App.3d 626, 638 [approved on this point and disapproved on another in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884, 885-886]), the expert's opinion simply invited the acceptance at face value of this conclusion, without specifying the particular "standards" or "principles" or "guidelines" or "practices," or identifying any reason for finding these to be authoritative. Moreover, the expert again failed to identify the particular provisions of the city code purportedly mandating curbs and/or wheel stops on defendant's property (or explain why the county provisions would be applicable within the city even if they were relevant). "Because I say so" is not an adequate basis for an expert opinion, even if the expert has "impressive credentials" or has personally reviewed the code sections (as plaintiffs assert elsewhere in their brief). The court did not abuse its discretion in excluding the declaration, and any facts contained in it are consequently not properly before this court. (Bushling, supra, 117 Cal.App.4th at p. 507.) We therefore decline plaintiffs' invitation to review it to determine if it created any triable issues of material fact, and disregard the arguments on pages 38 to 43 of their opening brief premised on the facts and opinions in the declaration.
II. The Evidence Does Not Establish "Duty"
Jefferson, supra, 28 Cal.App.4th 990 posed the issue as: whether a convenience store could be liable for a third party's negligence in driving over existing wheel stops and a curb if "nothing requir[ed] customers to stand in a fixed location adjacent to the parking area, and when there have [not] been [any] prior such accidents." (Id. at p. 991.) Unlike the present case, the Jefferson store had a well-defined, six-foot-wide sidewalk elevated above a six-inch curb, perpendicular to which were the parking stalls with concrete wheel stops at their ends. These nonetheless did not prevent an elderly driver, who stepped on the accelerator rather than the brake, from jumping these barriers and hitting the minor plaintiff, who was standing on the sidewalk.*fn8  (Id. at p. 992.) This presented the issue of the duty of a property owner to prevent the wrongful acts of third parties. (Id. at p. 993.)
Surveying the law in other jurisdictions, Jefferson found "[t]he majority have concluded there is no liability because such accidents are insufficiently likely as a matter of law." (28 Cal.App.4th at pp. 993-994 [citing cases involving barriers even less substantial than the present case, one of which noted it is mere speculation whether barriers would even have prevented accident].)
A minority of cases cited by Jefferson found duty only in three situations: where the business did not provide any vehicular barriers; where there was knowledge of prior similar incidents (regardless of the particular physical configuration of the accident site);*fn9  and where the business required a customer to await service while standing on a walkway that was adjacent to a parking lot or driveway. (Jefferson, supra, 28 Cal.App.4th at pp. 994-995.)
Jefferson held that "no case of which we are aware" has found a duty "on the set of facts found here, where the business provided both a curb and [wheel stops], the parking lot design is typical of most businesses and meets all city standards and regulations, there were no prior similar incidents[,] and nothing required customers to remain in a fixed location adjacent to the parking area" because the risk of the accident occurring were far lower. (Jefferson, supra, 28 Cal.App.4th at pp. 995-996.) That an accident is conceivable is insufficient to establish a duty, because that would impose an "unreasonable burden" in the absence of "an impregnable barrier," and owners are not the insurers of their patrons' safety. (Id. at p. 996.) It distinguished Barker v. Wah Low (1971) 19 Cal.App.3d 710, 721 (Barker), where there was a wooden bumper stop of some sort, on the basis that it involved a walk-up service window that positioned patrons in front of the parking stalls. (Jefferson, supra, at pp. 996-997.)*fn10 
The gist of Jefferson is this: An accident on the premises of a business involving a third party driver and a patron, while conceivable, is not reasonably foreseeable absent knowledge of similar incidents in the past resulting from the site's conditions, a complete lack of any vehicular barriers, or a design of the premises that requires patrons to remain at a fixed location in the path of traffic.*fn11  Jefferson does not, as plaintiffs apparently read it, represent a checklist of precautions a business owner must affirmatively take in order to avoid liability; rather, the court was pointing to the presence of wheel stops, curbs, and code compliance as making the probability of an accident even more unlikely than in the cases it had reviewed that did not find duty even with lesser barriers. As a result, because defendant did not have knowledge of any prior similar accidents (and plaintiffs did not establish that there were any such accidents), because there was a dividing curb between the parking stall and the walkway as ample as many of the cases cited in Jefferson, and because the evidence did not establish that the configuration of the lot was otherwise inherently likely to result in an accident of this sort, the trial court properly found that defendant did not have a duty to plaintiffs to prevent injury from a drunken third party driver. The issue of code compliance is not material.
Plaintiffs argue that foreseeability for purposes of establishing a duty is present in this case "as a matter of law" because there are other cases involving vehicles that struck pedestrian patrons,*fn12  or (citing a fact outside the present record) the prevalence of sports-utility vehicles with larger tires such as the one that the defaulting cross-defendant was driving render the divider in defendant's lot useless. Other cases involving different circumstances are simply irrelevant here, and plaintiffs cannot augment their opposition in the trial court with extra-judicial facts on appeal regarding the efficacy of defendant's divider for stopping a larger sized tire.
Plaintiffs assert the absence of knowledge of prior incidents should not determine the outcome in this case.*fn13  However, the probability of out-of-control oncoming traffic was not otherwise increased in the present case as a result of the complete absence of vehicular barriers or causing plaintiffs to linger in the path of oncoming vehicles. Therefore, the lack of any knowledge that prior similar accidents had occurred as a result of a hidden etiology would have been the only other way to demonstrate reasonable foreseeability.
Plaintiffs also attempt to wedge themselves into the confines of Barker, claiming the concrete walkway "invited" them to "position" themselves in the path of oncoming traffic in approaching the store. To the extent that any approach to the store "invited" patrons to use it, nothing invited or required the patrons to remain on it for any period of time, unlike Barker or Robison. Plaintiffs also suggest Barker should be read as finding liability when there is only one protective measure. As we noted above, Barker holds only that these are open questions that a trier of fact must resolve, and therefore a ratio decidendi to this effect is not present.
Finally, Curreri v. City etc. of San Francisco (1968) 262 Cal.App.2d 603, which plaintiffs invoke repeatedly in their brief, did not involve an analysis of whether a duty existed. Rather, it considered whether the circumstances constituted a dangerous condition (which in turn would establish the breach of a duty under the California Public Liability Act, as it was then termed), which is a question of fact. (Curreri, at pp. 607, 611.) A car was parked at right angles to a low curb (two to three inches high) on the north side of Greenwich Street, which pitched steeply to the east. When the driver attempted to back out of the parking space, he inadvertently stepped on the accelerator and jumped the curb, hitting the plaintiff who was sitting on the steps of the residence in front of him. (Id. at p. 605.) Although the court concluded the defendant did not have any duty to retrofit curbs that were lower than the extant specification of six inches (id. at p. 609), it also held that a reasonable trier of fact could find that the omission of one or more precautionary measures (such as "a high[er] curb, or angle parking, or a prohibition of parking, or elimination of right angle parking, or a barricade") created a dangerous condition (id. at p. 611). Curreri consequently does not resolve any factor that might be relevant to the issue of duty before us.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. DUARTE , J.