KeyCite Red Flag – Severe Negative Treatment
2018 WL 3357779
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
NOT TO BE PUBLISHED
Court of Appeal,
Third District, California.
MAYRA FRANCISCA ORTEGA BRAVO, Plaintiff and Appellant,
HUMBERTO CERDA HERNANDEZ et al., Defendants and Respondents.
(Super. Ct. No. CV24108)
RAYE, P. J.
*1 Plaintiff Mayra Francisco Ortega Bravo, who ran a stop sign causing a truck driver to flip his tractor-trailer, introduced no evidence the truck driver was inattentive, driving too fast, or failed to react appropriately, in her opposition to the summary judgment granted in favor of the driver, Humberto Cerda Hernandez, his employer Morning Star Trucking, and tractor-trailer owner Ryder Truck Rental, Inc. (collectively defendants). On appeal,1 she insists that because at one point in his deposition Hernandez testified he noticed Bravo in the intersection only “one second” before the collision, he contradicted his earlier declaration in which he had stated the events leading up to the collision “happened very quickly and suddenly.” She thus speculates that he may have been inattentive, may have been using his cell phone, may have been too tired to react properly, or any other host of possibilities. Bravo contends that the discrepancy between the deposition and the declaration creates a material, triable issue of fact requiring reversal of the judgment. Finding only speculation, not evidence, we affirm. Her other complaints are also without merit.
The Collision. At approximately 3:00 a.m. on September 10, 2013, Hernandez was driving a Freightliner tractor-trailer northbound on Old Highway 99 West at approximately 40 to 50 miles per hour, approaching the intersection of Meyers Road. Traffic on Meyers Road crossing Old Highway 99 is controlled by stop signs, whereas traffic traveling on Old Highway 99 is not required to stop. The speed limit on Old Highway 99 was 55 miles per hour. Although it was dark, the conditions were clear, the landscape was flat, and there were no visual obstructions.
Hernandez observed Bravo’s car approaching the intersection from the east and expected the driver to stop. When it appeared the driver was not going to stop, he removed his foot from the gas pedal, covered the brake pedal, and flashed his high beams to warn the driver he was approaching. In his declaration in support of the motion for summary judgment, Hernandez stated: “The car slowed slightly, but suddenly and quickly accelerated through the stop sign, directly into my path of travel just before I reached the intersection. This happened very quickly and suddenly, and I was not expecting the car to drive directly in front of my truck.”
*2 In his deposition, the following exchange occurred:
“Q. Now, when you first saw my car — my client’s car, how much time passed from when you first saw the car up until the point of impact? Your best estimate. Maybe it’s a range, maybe you say it’s five to ten seconds, whatever your best estimate is.
“A. No, it was less than one second.
“Q. And in terms of time, so it was less than one second, correct, from the time that you saw my client up until the impact, correct? [¶] … [¶]
“A. Well, it’s just that I don’t know what it would have been. It’s just that those things are in seconds, minutes.”
Bravo conceded she drove into the intersection against the stop sign directly into the path of the moving tractor-trailer. Hernandez “immediately hit the brakes and attempted to avoid a collision with the car by swerving the truck to the left. The truck then rolled over.” Both Bravo and Hernandez sustained serious injuries in the collision.
Officer Jeremy Quigley was the lead investigator for the California Highway Patrol and the author of the Traffic Collision Report, with the exception of two pages relating to the physical evidence, which were prepared by Officer Timothy Roloff. In his deposition, Quigley confirmed that Hernandez had given an oral statement at the time of the collision reporting that he was traveling between 40 and 50 miles per hour as he approached the intersection. Hernandez also told Quigley at the scene that “he hit the brakes, turned left to avoid the collision, but could not avoid the collision, and his rig rolled.”
Hernandez’s account at the scene of the collision is consistent with the physical evidence. Officer Roloff took the measurements of physical evidence at the scene pursuant to the training he received in accident investigation. He found no physical evidence inconsistent with Hernandez’s account of his speed, turning, or braking. The California Highway Patrol found Bravo entirely at fault.
The Ruling. A hearing on the motion was not transcribed. Although Bravo filed her expert disclosure before her opposition to the summary judgment, including a commercial trucking and safety expert, an expert reconstructionist, and a human factors expert, she did not include any expert declarations. The trial court granted defendants’ motion for summary judgment finding Hernandez was not negligent as a matter of law, Morning Star Trucking (Morning Star) could not be liable under any theory asserted, and Ryder Truck Rental, Inc. (Ryder) had statutory immunity. Bravo appeals. Our review is de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768; Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 444.)
Bravo did not argue in the trial court that defendants failed to sustain their initial burden on summary judgment.2 The burden therefore shifted to Bravo to present evidence to make her own prima facie showing of a triable issue of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) Simply put, the dispositive question is whether Hernandez’s “one second” estimate during one part of his deposition was inconsistent with other parts of the deposition and his declaration and created a triable issue of material fact. Actually, Bravo’s reliance on the “one second” estimate is much ado about nothing.
*3 It is true that summary judgment is a drastic measure, precluding as it does, a trial on the merits. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)
Nevertheless, the Legislature has provided parties with a tool to weed out meritless lawsuits before incurring the expense of a full trial and the courts with a vehicle to remove those vacuous cases undeserving of public resources. Bravo’s burden is indeed a light one—she need only demonstrate, with admissible evidence, that genuine factual disputes remain. (Dammann v. Golden Gate Bridge, Highway & Transportation Dist. (2012) 212 Cal.App.4th 335, 340.) We turn, as we must, to the record.
As reported above, Hernandez presented overwhelming evidence that he was not negligent. His statements at the time of the collision to the investigating officers are consistent with his declaration submitted in support of the motion for summary judgment and his deposition testimony. In sum, he was traveling below the speed limit at a speed safe under the circumstances; he observed Bravo’s car approaching before the collision and attempted to warn her by flashing his lights; he took his foot off the accelerator and prepared to brake; and observing her run the stop sign, he abruptly turned the truck to the left in a futile attempt to avoid a collision. Unfortunately, in his conscientious attempt to avoid a collision, his cab flipped over and he sustained serious injuries. There is no dispute Bravo drove through the stop signal without stopping. Bravo presented no expert testimony or any other evidence to rebut these facts.
Instead, Bravo attempts to use Hernandez’s “one second” testimony to create a triable issue of fact. She argues that if, as Hernandez testified in his deposition, he had not seen Bravo until one second before the crash, a jury could reasonably infer that he was being inattentive, was sleepy, using his cell phone, or was otherwise distracted. We disagree his testimony was inconsistent with his declaration and we disagree that his “one second” remark merits a trial.
We begin with Bravo’s premise that Hernandez’s deposition testimony was inconsistent with his declaration. In his declaration, he plainly stated the events occurred “very quickly and suddenly,” a description totally consistent with his “one second” testimony. To the extent that what he described suggests it would have taken longer than one second, he clarified his estimate this way: “Well, it’s just that I don’t know what it would have been. It’s just that those things are in seconds, minutes.” It is not surprising that in the midst of such a traumatic and quick event, it would be difficult to describe with precise accuracy the exact amount of time that had passed from perception of Bravo’s car until the collision.
Bravo failed to introduce any expert declaration in opposition to the summary judgment. Nor did she present any physical evidence at odds with the consistent account Hernandez gave at the scene, in his declaration, and at his deposition. Bereft of any evidence creating a triable issue of fact, she clings to the only shred she can pluck from the record and that is Hernandez’s “one second” testimony, and from that shred she attempts to construct a list of could haves a jury might find. But her house of cards is nothing more than raw speculation. In the absence of any real, disputed evidence, there is simply no role for a jury. And the fact she sustained serious injuries does not mean the Hernandez must be subjected to the inconvenience, indignities, or annoyances of a trial when he was not negligent as a matter of law.
*4 Unable to present any evidence of a triable issue, Bravo ventures further into the fictional realm of speculation that there might have been evidence of Hernandez’s negligence if only his employer had retained his logs and kept the truck that had been totaled beyond the period of time required by law. We agree with defendants that facts, unlike speculation, are stubborn things. Bravo falls as short of presenting facts of spoliation of evidence as she does in demonstrating a triable issue of fact, although it is hardly clear that Bravo is actually attempting to establish spoliation. In a rather disjointed complaint about the failure to preserve evidence, Bravo never clearly articulates what she would have us do about her allegations; nor does she provide any legal basis for her generalized complaint.
The facts we have are these. Hernandez was employed by Morning Star and the tractor-trailer involved in the collision was owned by Ryder. Morning Star leased the tractor-trailer during tomato season. Michael Reuter, the operations manager for Morning Star, responded to the scene of the collision shortly after it occurred and concluded “that the other party had run the stop sign in front of our truck.” Because the California Highway Patrol found Bravo entirely at fault, he characterized the case as “cut-and-dry” and saw no reason to maintain the driver’s daily logs beyond the six months required by law. (Cal. Code Regs., tit. 13, § 1234, subd. (a).) He testified Morning Star maintained the logs for six months and phased them out after the required six-month time frame. Morning Star did not receive any notice to preserve evidence before the lawsuit was filed. Morning Star’s standard practice was to send a vehicle totaled in a collision to salvage and “move on.” In January 2014 Reuter sent the tractor-trailer to salvage since he had received no notice of a claim and “didn’t expect any litigation in this case at all.”
Bravo would have the trial court infer all sorts of nefarious motives to Morning Star’s decisions to phase out the logs and salvage the tractor-trailer. At a minimum, Bravo urges us to infer Morning Star was hiding damaging evidence that Hernandez had not slept enough or eaten enough, speculating that the possible lack of sleep and sustenance caused him to be inattentive and fail to respond quickly and effectively. But once again, none of the speculative inferences Bravo asks us to draw are based on evidence she presented to the trial court. Her resort to speculation dooms her appeal just as it doomed her motion before the trial court.
Bravo also raises two meritless procedural issues. Although as a result of running a stop sign Bravo may have suffered sad and serious injuries, the nature of her injuries does not mean her case is complex. To the contrary, the papers filed in support of, and in opposition to, the motion for summary judgment present straightforward issues easily resolved by our de novo review. Her procedural objections need not detain us long.
Bravo contends the trial court failed to provide an adequate statement of reasons as required by Code of Civil Procedure section 437c, subdivision (g). Bravo relies on two factually distinct cases involving complex real property disputes. (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 449; Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1058.) Her case, by contrast, presents no comparable complexity or factual disputes. The question is not whether the trial court’s decision provided the reasons for its determination, for clearly it did not, but whether Bravo waived the defect by failing to object to the order in the trial court. Bravo cites no case to support her notion that a trial court has a sua sponte obligation to provide the statement of reasons and a party cannot waive the defect by failing to object to the proposed order.
*5 There is no dispute Bravo failed to object to the order prepared by defense counsel. California Rules of Court, rule 3.1312 requires the party prevailing on a motion to submit a proposed form of order within five days of the ruling. Then, “[w]ithin five days after service, the other party or parties must notify the prevailing party as to whether the proposed order is so approved” and “state any reasons for disapproval.” (Cal. Rules of Court, rule 3.1312(a).) The rule further states: “Failure to notify the prevailing party within the time required shall be deemed an approval.” We agree with defendants that, pursuant to rule 3.1312, Bravo approved the order by failing to serve any objections. The court signed the same order that defendants presented to Bravo and made no corrections to it. She thus had the opportunity to register the complaint she belatedly raises on appeal. We will not consider an issue that could have been raised in the trial court and was not. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 528.)
Equally unavailing is Bravo’s argument we should not consider the reply defendants filed in support of their motion for summary judgment. Bravo accuses defendants of a Machiavellian scheme to deny her due process by withholding the lion’s share of the evidence in support of the motion for summary judgment and surprising her with excerpts from the depositions of the investigatory police officers and the accident reconstructionist in their final reply. Such sneaky trial tactics are, in her view, antithetical to fair play and a fair trial.
Bravo tells less than half of the story. Hernandez, his employer, and the California Highway Patrol believed the collision was Bravo’s fault alone because she ran the stop sign and there was absolutely no evidence to suggest Hernandez was negligent. Thus, there was nothing inappropriate or underhanded in defendants’ decision to offer the basic facts in a simple declaration to establish that Hernandez was not negligent as a matter of law. It is, after all, a simple case.
Bravo’s opposition, however, included excerpts from the deposition testimony of Quigley, Roloff, Hernandez, and Reuter. Those isolated excerpts are misleading. Defendants did not lay in wait to thrust new evidence into the case when Bravo would be unable to respond; rather they offered additional excerpts from the same witnesses that Bravo used in her opposition to refute and disprove her contentions. There was nothing improper about the trial court considering defendants’ rebuttal to the evidence Bravo offered in opposition and there is nothing improper about us considering the same evidence during the course of our de novo review.
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Not Reported in Cal.Rptr.3d, 2018 WL 3357779
We consider Bravo’s appeal from the order, rather than the judgment, a premature appeal and deem it as a timely appeal from the subsequently entered judgment. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.) “It has been said that a reviewing court will grant relief if a judgment was entered, ‘there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice.’ (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69.) … In a case involving a notice of appeal mistakenly specifying a nonappealable order denying a new trial, instead of the then extant underlying judgment, our Supreme Court has held that reviewing courts generally should exercise discretion in favor of preserving the right to appeal. (See Walker v. Los Angeles County Metropolitan Transit Authority (2005) 35 Cal.4th 15, 19-22.)” (Good v. Miller (2013) 214 Cal.App.4th 472, 474.)
Bravo points out that defendants relied on the “sudden emergency doctrine” to meet their initial burden on summary judgment. Since she did not challenge defendants’ ability to establish a prima facie case and the trial court did not make any ruling regarding the sudden emergency doctrine, we need not consider it here.