Filed 11/26/14 Brown v. City and County of San Francisco CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE




JOHNNIE L. BROWN,
         Plaintiff and Appellant,
                                                                     A140644
v.
CITY AND COUNTY OF SAN                                               (City & County of San Francisco
FRANCISCO,                                                           Super. Ct. No. 500108)
         Defendant and Respondent.


         Plaintiff Johnnie L. Brown was allegedly injured when a bus door closed on her.
She sued the City and County of San Francisco (city) on the ground the city had
constructive knowledge of the existence of a dangerous condition of public property. On
appeal from a summary judgment entered in favor of the city, her sole claim is that
certain city witnesses who supplied declarations in support of the city’s summary
judgment motion failed to properly authenticate business records on which they relied.
We affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On October 14, 2009, Brown was riding MUNI coach number 6418 on the
38 Geary line in San Francisco. Brown and her companion, Eddie Pipkin, began exiting
the rearmost door of the bus. Pipkin stepped off the bus completely and turned back to
look at Brown, who had placed both feet on the second of three steps in the stairwell of




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the rear doorway. The door closed on Brown’s hip while she was standing on the second
step.
        Brown sued the city to recover for injuries she allegedly suffered when the bus
door closed on her. In the operative fifth amended complaint (hereafter, complaint), she
alleges a single cause of action for premises liability based on a dangerous condition of
public property. She alleges the city had constructive knowledge of the existence of a
dangerous condition created by employees of the city.
        Brown sought discovery from the city regarding MUNI coach number 6418. The
discovery consisted of special interrogatories, document requests, and requests for
admission. According to the city, Brown did not conduct any depositions or pursue
further discovery. In response to discovery propounded by the city, Brown identified
MUNI coach number 6418 as the bus on which she was injured.
        The city moved for summary judgment. It claimed the doors functioned properly
and there was no evidence of prior accidents involving the doors. It further argued
Brown could not establish the existence of a dangerous condition or that the city had
actual or constructive notice of any alleged dangerous condition. Finally, the city argued
that it enjoyed design immunity.
        In support of its motion, the city relied on excerpts from Brown’s deposition and
her responses to special interrogatories. The city also relied upon the declarations of
MUNI employees Elson Hao and Neal Popp.
        Popp was the deputy director of maintenance for MUNI and had previously been
MUNI’s senior operations manager. He stated that MUNI’s 38 Geary line is populated
with Neoplan AN460 buses, which are “articulated” 60-foot-long buses with two right-
side rear doors that close automatically and cannot be closed by a bus operator. The rear
doors may be opened by a passenger or by the bus driver. According to Popp, a
passenger can open the door after the bus has come to a stop and the operator pushes a
button unlocking the rear door by either (1) pressing a touch bar on the door or (2)
standing in the exit stairwell on the bottom treadle step. Regardless of whether the door
was opened by the passenger or the operator, the door closes automatically after a short,


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preset time after a passenger exits. Popp stated that the door is designed to close
automatically between two and four seconds after there is no longer 40 pounds of
pressure on the bottom treadle step of the exit stairwell. The operator does not manually
close the door but does press a button locking the rear door after it closes automatically.
According to Popp, the operator does not have the ability to close the door manually
because the operator does not always have an unobstructed view of the rear door exit
stairwell.
       Popp claimed to have reviewed the complete work order history for MUNI coach
number 6418 covering repairs from October 2005 to October 2009. In the year leading
up to the October 2009 accident, there were no work orders involving the rear doors. The
last work order concerning the functioning of the doors dated back to May 2008. At the
time, the doors were tested and no defect was found. Popp also reviewed the routine
inspection history of MUNI coach number 6418. Coaches are inspected every 1,000
miles. Two such inspections took place in October 2009 and included testing of, among
other features, systems controlling the functioning of the doors. According to Popp,
neither of the October 2009 inspections turned up any defect in the rear doors of MUNI
coach number 6418. Finally, Popp claimed to have conducted an electronic search of
MUNI’s central control records regarding incidents and injuries involving the rear doors
of coach number 6418. In the period from January 2001 until the date of the Brown’s
accident, there were no accidents or injuries associated with the rear doors of coach
number 6418.
       Hao stated he was a licensed engineer employed by MUNI fleet engineering. He
was the custodian of records related to the design and purchase of coach number 6418.
He declared that coach number 6418 was manufactured by Neoplan corporation in
accordance with federal motor vehicle safety standards. Attached to Hao’s declaration
was a letter from Neoplan verifying that its coaches satisfied federal motor vehicle safety
standards as well as a letter from MUNI fleet engineering authorizing the purchase of the
Neoplan coaches. According to Hao, MUNI fleet engineering approved the design of
coaches based upon their professional judgment and knowledge of urban mass transit.


                                             3
The design approval extended to coach number 6418 and its rear passenger doors and
design.
       In opposition to the summary judgment motion, Brown submitted two
declarations—one by her and the other by Eddie Pipkin, who witnessed the bus doors
closing on Brown. Pipkin stated that, based upon his prior experience on MUNI buses,
he believed the bus driver may have manually caused the rear door to close on Brown. In
her declaration, Brown stated she was not sure that the incident in which she was injured
took place on coach number 6418, and she questioned whether the bus at issue was
articulated or non-articulated. She further stated that it was now her belief, in contrast to
her deposition testimony, that there were only two steps in the rear doorway and that she
was standing on the bottom treadle step when the door closed on her. She claimed there
was a dangerous condition of public property because either (1) the bus driver manually
closed the rear door of a non-articulated coach, or (2) if she was on an articulated coach,
it was dangerous to allow the doors to close automatically when a passenger is standing
on the second of three steps in the stairwell.
       The trial court granted summary judgment in favor of the city. The court reasoned
that Brown failed to identify any admissible evidence to support her theory that the rear
doors on the bus were dangerous. The court also concluded there was no evidence the
city had actual or constructive knowledge of any dangerous condition of public property.
Finally, the court concluded the city enjoys design immunity and that Brown had failed to
set forth any evidence to contradict the city’s factual showing supporting the defense.
Following entry of judgment, Brown filed a timely appeal.
                                        DISCUSSION
1.     Standard of Review
       We review a grant of summary judgment do novo. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 860.) However, evidentiary rulings are reviewed under the
deferential abuse of discretion standard. (Miranda v. Bomel Construction Co. (2010)
187 Cal.App.4th 1326, 1335.) Likewise, when evidentiary objections are presented in an
improper format and the court fails to rule on the objections, we apply an abuse of


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discretion standard in assessing the court’s actions. (Hodjat v. State Farm Mutual
Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7–9 (Hodjat).)
2.     Evidentiary Objections
       Brown’s sole claim on appeal is that the court erred in granting summary
judgment based on declarations of “expert witnesses” who relied on business records for
which no proper evidentiary foundation was laid. In effect, Brown contends the court
erred in disregarding her objections to the evidence proffered by the city. As we explain,
the court did not abuse its discretion in disregarding Brown’s defective evidentiary
objections.
       Parties are required to file a separate document setting forth objections to
evidence. (Cal. Rules of Court, rule 3.1354(b); see Public Utilities Com. v. Superior
Court (2010) 181 Cal.App.4th 364, 376, fn. 9.) The rule is not draconian. “The rules
requiring evidentiary objections to be filed separately and not repeated in the separate
statement are to allow the trial court to consider each piece of evidence and all of the
objections applicable to that piece of evidence separately.” (Hodjat, supra,
211 Cal.App.4th at p. 9.) Further, parties are afforded an additional chance to raise any
evidentiary objections during the hearing. (Cal. Rules of Court, rule 3.1352.)
       Here, Brown failed to file a separate document setting forth her evidentiary
objections in compliance with the California Rules of Court. She also failed to raise any
evidentiary objections during the hearing on the summary judgment motion. Instead, her
evidentiary objections were included in the text of her memorandum of points and
authorities opposing the city’s summary judgment motion. The situation is similar to one
faced by the court in Public Utilities Com. v. Superior Court, supra, 181 Cal.App.4th
364. There, a party objecting to evidence in a summary judgment proceeding did not
comply with the California Rules of Court but instead “simply raised the claim in the
middle of points and authorities it offered in support of its motion” and did not raise the
objection at the hearing on the motion. (Id. at p. 376, fn. 9.) The court concluded the
objection was not preserved for review on appeal. (Ibid.) Similarly, in Hodjat, supra,
211 Cal.App.4th at page 8, the appellate court declined to consider objections included in


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the text of the separate statement that were not presented in a separate document in
accordance with the California Rules of Court. The appellate court concluded the trial
court did not abuse its discretion in declining to rule on the objections and had no
obligation to afford the party a second chance at filing the objections in a proper format.
(Id. at p. 9.)
        We conclude the trial court did not err in declining to rule on Brown’s defective
evidentiary objections. The court had no obligation to wade through Brown’s brief and
the evidence presented by the city to ascertain which particular pieces of evidence were
the subject of an objection by Brown. Accordingly, Brown forfeited her objections.
(Public Utilities Com. v. Superior Court, supra, 181 Cal.App.4th at p. 376, fn. 9.)
        Even if Brown did not waive her procedurally improper objections, we would still
find no merit in her contentions. Her primary claim is that city witnesses Popp and Hao
relied on business records that were not properly authenticated. However, the authority
she cites arises in the context of non-party expert witnesses who rely on business records
as the basis for an expert opinion. (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735,
741–742.) That authority is inapposite.
        In this case, Popp and Hao were not non-party witnesses retained to offer an
expert opinion. Instead, they offered declarations based upon their experience and duties
as long-time MUNI employees. Popp has decades of experience working on MUNI’s
fleet of coaches. He explained three ways in which MUNI might make a record of a
dangerous rear door, and he further explained that MUNI had no such record concerning
MUNI coach number 6418. Hao, in his capacity as a licensed engineer employed by
MUNI fleet engineering, declared that coach number 6418 was manufactured according
to federal motor vehicle safety standards. Popp and Hao did not offer expert opinions but
instead stated facts within their knowledge as MUNI employees. Brown has not
adequately explained why we should disregard factual statements of these party witnesses
as unreliable. Further, to the extent Brown challenges the foundation for Popp’s
knowledge of MUNI buses and routes, her argument is frivolous. As a MUNI employee
who worked in maintenance for 30 years, including as deputy director of maintenance


                                             6
and senior operations manager, Popp established a sufficient foundation for his
statements concerning the operation of MUNI buses.
       Finally, even without considering the Popp and Hao declarations, there was a
sufficient basis for the court to grant summary judgment. In order to shift the burden of
production, a party moving for summary judgment need only make a “prima facie
showing” that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 850.) A moving defendant can satisfy its initial burden by
establishing that the plaintiff’s discovery responses are devoid of any facts supporting the
plaintiff’s claims. (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1302.) In this
case, the city met its burden by establishing that Brown’s discovery responses were
devoid of facts supporting her claim that the city was constructively aware of a dangerous
condition of public property. In effect, she premised her entire case on the fact the bus
doors closed on her. But simply because the doors closed on her in this one instance does
not establish the existence of a dangerous condition. (See Gov. Code, § 830, subd. (a) [to
be considered dangerous, condition of property must create a substantial risk of injury
when used with due care].) Nor does this one episode support a conclusion that the city
knew or should have known of the existence of any dangerous condition.
       In response to the city’s prima facie showing of the absence of any triable issue of
material fact, the burden shifted to Brown to make her own prima facie showing of the
existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 850.) She failed to satisfy her burden. Instead, she offered declarations
that contained little more than conjecture about the identity of the bus on which she was
injured and speculation about whether the bus driver may have manually closed the door.
“[E]vidence that gives rise to no more than mere speculation . . . is insufficient to
establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th




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151, 163.) Under these circumstances, the court did not err in granting summary
judgment. 1
                                      DISPOSITION
      The judgment is affirmed. Respondent is entitled to recover its costs on appeal.

                                                _________________________
                                                McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.




      1
        Although Brown chose to proceed by appendix pursuant to rule 8.124 of the
California Rules of Court, she did not present this court with an appendix. Instead, she
asked this court to take judicial notice of various pleadings filed in the trial court.
Because the respondent’s appendix provided to this court by the city contains a complete
record of the documents necessary to consider Brown’s appeal, it is unnecessary to
consider the matters contained in Brown’s judicial notice request, which appear to
duplicate the contents of the respondent’s appendix. Accordingly, the request for judicial
notice is denied.

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