Montoya v. City and County of San Francisco

Filed 9/25/07 Montoya v. City and County of San Francisco CA1/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff Maria Montoya was injured when the city bus she was riding stopped suddenly. Following discovery, defendant City and County of San Francisco (the City) moved for summary judgment. The City supported its motion with deposition testimony from the bus driver, who explained that he stopped in order to prevent a traffic accident with a reckless motorist. Plaintiff submitted no evidence contradicting the drivers explanation. Finding that plaintiff had failed to demonstrate a prima facie case of negligence, the trial court granted summary judgment. We affirm.

I. BACKGROUND

In this negligence action, plaintiff alleged that she was injured while riding a city bus. Following discovery, the City filed a motion for summary judgment, arguing that plaintiff had no evidence demonstrating that the bus driver was negligent and that she herself had conceded to City employees that the driver was not at fault in the accident.

There is no dispute that plaintiff was riding a city bus in the late afternoon. When the bus stopped suddenly, she fell and was injured. The City submitted deposition testimony by the bus driver in which he testified that, just before plaintiffs fall, he had spotted a car traveling at an unsafe speed coming from behind in the lane next to him. Looking ahead, the driver saw that a car was double-parked in the lane ahead of the speeding car and realized that the driver of the speeding car would not have room to stop. At that point, the bus driver stopped suddenly and the driver of the speeding car made a sudden change into the buss lane in order to avoid the double-parked car. As the driver said, He almost hit the left part of my coach. The drivers account was confirmed in deposition by an investigator for the City.[1]

The bus drivers testimony was internally inconsistent regarding the exact timing of his stop. At most points in his deposition, he suggested that he stopped in anticipation that the driver of the car would pull in front of the bus. For example, he twice testified that he stopped to allow the driver of the car to make a lane change, and once he stated expressly that his bus was already stopped when the car made its lane change, both implying that he anticipated the lane change. At another point in the deposition, however, the driver testified that all of a sudden, he tries to cut in front of me, so I applied the service brake to avoid contact. In this latter account, the bus drivers stop was in reaction to the other vehicles movements, rather than in anticipation of them.

The driver also testified that he spoke to plaintiff after her fall, while they were awaiting an ambulance. He quoted plaintiff as saying, It was not the drivers fault. Its not your fault. The investigator similarly testified that plaintiff had told her the accident was not the drivers fault.

In opposition to the motion, plaintiff submitted her own deposition testimony. Plaintiff testified that at the time of the accident she was looking out the window, but [t]here was no set point at which I was looking. She did not remember seeing a car cut off the bus. She denied having told the bus driver that the accident was not his fault.

The trial court granted the motion for summary judgment. The court concluded that the Citys evidence shifted the burden to plaintiff to produce some evidence that the bus driver had acted negligently and that she had not produced such evidence.

II. DISCUSSION

Plaintiff argues that the trial court erred in granting summary judgment because the evidence before the trial court was in dispute as to the cause of the accident.

In reviewing a trial courts grant of summary judgment, [w]e review the trial courts decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388389.) [W]e independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

A grant of summary judgment to a defendant no longer requires, as it once did, that the defendant affirmatively negate an element of the plaintiffs cause of action. Rather, it is now sufficient for a defendant  to show that a cause of action has no merit because an element of the claim cannot be established or there is a complete defense. Thus, the amended language of [Code of Civil Procedure] section 437c, like its counterpart Federal Rules of Civil Procedure, rule 56 (28 U.S.C.), now places the initial burden on the moving party, and shifts it to the opposing party upon a showing that one or more elements of the cause of action cannot be established. [Citation.]  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In this action, therefore, we must determine whether defendants have shown that plaintiffs have not established a prima facie case of negligence, a showing that would forecast the inevitability of a nonsuit in defendants favor. If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial. [Citation.] (Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.)

The elements of a cause of action for negligence are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury. [Citation.] (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, italics omitted.) The City attempted to demonstrate that plaintiff could not make out a prima facie case that the City had breached its duty of due carein other words, had been negligent. Negligence is the failure to use reasonable care to prevent harm to oneself or to others. (Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 13551356.) The City provided evidence that the driver of a vehicle approaching from behind and beside the bus was driving unsafely. The bus driver, observing trailing traffic in his outside mirror, spotted the car approaching. At the same time, he spotted a possible obstacle ahead in the form of the double-parked car. In order either to avoid a collision with the approaching vehicle or to prevent a collision between that vehicle and the double-parked car, the bus driver braked, apparently causing plaintiff to fall.

There is nothing in this evidence to suggest negligence. The bus driver was attentive to the circumstances on the street as he drove, and he reacted to threatening circumstances in a manner designed to minimize harm to his passengers and other motorists using the streets.

The City thereby successfully negated an essential element of plaintiffs case, the Citys breach of its duty of due care, shifting the burden to plaintiff to produce facts demonstrating a prima facie case of negligence. Plaintiff could, for example, have provided evidence that there was no speeding or double-parked car, or that the driver braked much more suddenly and forcefully that conditions warranted, or that the driver was distracted prior to the incident and should better have anticipated the other vehicles movements in order to avoid the need to brake. She provided no such evidence.[2]

Instead, plaintiffs primary defense is to claim that the Citys evidence was internally inconsistent, thereby creating a triable issue of fact. We agree that plaintiff created a triable issue of fact as to whether she acknowledged to the City employees that the bus driver was not at fault; her denial was sufficient. If that were the Citys only evidence that its driver did not act negligently, the motion should have been denied.

The drivers testimony, however, also demonstrated a lack of negligence. The driver provided two different versions, it is true, but in neither of these versions did the driver act negligently. Whether the driver was able to brake before the car pulled over, in anticipation, or whether he reacted to a sudden movement by the speeding car, he was faced with a difficult situation that he did not create and reacted with due care.

Plaintiff argues that she was required only to show a triable issue of fact in order to prevail. Code of Civil Procedure section 437c, subdivision (c), however, required plaintiff to demonstrate a material triable issue of fact. While the conflict in the drivers testimony created an issue of fact, that issue is not material because under neither version did he act negligently.[3] In the absence of some conflict of fact suggesting negligence by the bus driver, plaintiff failed to carry her burden to demonstrate some version of facts setting out a prima facie case of negligence. The motion for summary judgment was properly granted.

III. DISPOSITION

The trial courts judgment is affirmed.

_________________________

Margulies, J.

We concur:

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Stein, Acting P.J.

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Swager, J.

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[1] We do not consider the investigators testimony about the accident because the trial court ruled it inadmissible hearsay.

[2] Plaintiffs own testimony that she did not see the speeding car does not serve the purpose, since she does not testify that she was in a position to see the car. On the evidence presented, she could have failed to see the car merely because she was not looking in the correct direction.

[3] Further, plaintiff failed to cite this evidence in her separate statement of facts opposing summary judgment. This alone would be grounds for affirming the grant of summary judgment. (E.g., NorthCoastBusinessPark v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 3032.)