(Super. Ct. No. CV029222)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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; ...