Nalbandian v. Los Angeles Dodgers CA2/1 ( 2021 )

Filed 1/22/21 Nalbandian v. Los Angeles Dodgers CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GREGORY NALBANDIAN, B302524
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC650508)
v.
LOS ANGELES DODGERS LLC,
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura A. Seigle, Judge. Affirmed.
Law Office of Martin Stanley and Martin Louis Stanley for
Plaintiff and Appellant.
Jerome M. Jackson for Defendants and Respondents.
____________________________
Plaintiff Gregory Nalbandian appeals from the trial court’s
grant of summary judgment in favor of defendants and
respondents Los Angeles Dodgers LLC, Dodger Tickets LLC,
Dodger Tickets Manager Corp., and LA Holdco LLC (collectively,
defendants). Plaintiff sued defendants and others for his injuries
after being struck by a vehicle while walking across several lanes
of traffic on the access road to Dodger Stadium. The trial court
ruled that plaintiff failed to establish a triable fact on the issue of
causation.
On appeal, plaintiff argues the trial court wrongly rejected
the opinions of his expert witness. Alternatively, he argues that
the trial court should have allowed him the opportunity to file an
amended expert declaration to cure any deficiencies.
We conclude that the description of the purported expert’s
qualifications in his declaration was too vague to establish
expertise in the matters upon which he opined, and the trial
court rightly rejected the opinions. Plaintiff did not request an
opportunity to amend the declaration in the trial court, thereby
forfeiting that argument on appeal. Accordingly, we affirm the
judgment.
FACTUAL BACKGROUND
On August 19, 2016, plaintiff drove to Dodger Stadium to
attend a rock concert. His wife, Brooke Japhet, was in the car
with him. The access road leading to the stadium consisted of
approximately six lanes allowing entry into the stadium parking
lot, and one lane allowing vehicles to exit. When plaintiff and
Japhet turned onto the access road, the six entry lanes were filled
with vehicles slowly making their way towards the parking lot
entrance.
2
As plaintiff and Japhet were waiting in the line of vehicles,
Japhet got out of the car and walked across multiple lanes,
intending to walk onto the premises to attend the concert.
Plaintiff pulled over to the side of the road, turned on the hazard
lights, and followed Japhet on foot across the several lanes of
vehicles. When plaintiff reached the exit lane, he was struck by a
car exiting the premises. A witness to the incident reported that
the car had an Uber sticker on its back window.
PROCEDURAL HISTORY
1. Motion for summary judgment and opposition
Plaintiff filed an action against defendants and others.
Defendants moved for summary judgment on the second cause of
action, premises liability, which was the only cause of action
plaintiff asserted against them. Defendants argued they did not
breach any duty of care they may have owed to plaintiff, and
their actions or inactions were not the proximate cause of
plaintiff’s injuries.
Defendant’s separate statement of undisputed facts was
based on the depositions of plaintiff, Japhet, a stadium parking
lot cashier, and a police officer who responded after the incident,
as well as the declaration of Michelle Darringer, the risk
manager for Los Angeles Dodgers LLC. Defendants did not
submit any declarations from experts.
Plaintiff opposed the motion, and filed a declaration by
William Serantoni, a retired senior superintendent and senior
facilities management planner at the University of California
Los Angeles (UCLA). Explaining his qualifications, Serantoni
declared: “While at UCLA I supervised the electrical department
and managed many lighting and power projects that affected
3
traffic and the roadways on the UCLA campus. My duties
included project management of street lighting, paving, painting
and striping. My job also required me to interact with the
campus parking service and the University of California Police
Department regarding traffic control for events taking place at
the UCLA campus.”
Serantoni explained that his opinions were based on a
“visit to the incident site” and his “background and experience in
facilities management at UCLA.” He also reviewed the
deposition transcripts of plaintiff and Japhet, including three
photographs of the access road attached as exhibits to Japhet’s
deposition transcript, and the declaration and rough deposition
transcript of Darringer.
Serantoni opined that the safety measures at the stadium
parking lot and access road “fell below the standard of care used
in the industry” because there was no “event staff perform[ing]
traffic control” or “slow[ing] down vehicles,” vehicle speed was not
limited to 10 miles per hour, there were no “traffic control devices
such as radar-controlled speed signs that post the driver’s speed,”
and no “lighted message boards [or] signs” warning drivers to
slow down and watch for pedestrians. Serantoni also opined that,
“[s]ince it was night-time and the sky was dark, it was likely that
there was poor visibility of pedestrians crossing the exit lane.
The illuminated headlights from the arriving cars waiting in the
entry lanes would have likely also contributed to poor visibility of
pedestrians crossing the exit lane. Thus the standard of care
required . . . bright overhead lighting over the exit lane and
pedestrian path . . . .”
According to Serantoni, defendants should have anticipated
that Uber and other ride-share drivers would be leaving the
4
venue while other vehicles were arriving, and that people
“waiting in jammed traffic would attempt to walk into the venue
and would cross the roadway” to reach the “marked pedestrian
path” across the exit lane. Defendants also “should have known
Uber drivers are not professional taxi or shuttle drivers who
obtain special licenses and training to operate commercial
vehicles,” and therefore “may not be as attentive to pedestrians.”
Concluding his declaration, Serantoni stated that
defendants’ “actions and inactions . . . fell below the industry
standard of care,” and “more likely than not[ ]contributed to the
Uber’s collision with [plaintiff] and his injuries in this case
because it is likely that the Uber driver, based on the facts,
did not have sufficient lighting, visibility or direction by staff in
the area.”
2. Trial court’s ruling
In its ruling, the trial court first addressed whether there
was a triable material fact that the incident was foreseeable such
that defendants breached a duty to plaintiff by not preventing it.
The court concluded that “the design of the road and Plaintiff’s
location was not such that the risk of harm by a speeding vehicle
exiting the stadium was obvious by simple observation.”
The trial court also found unconvincing Serantoni’s opinion
that defendants should have known there would be ride share
operators driving in the area, that those drivers would not have
special licenses or training, that passengers might exit their
vehicles in jammed traffic and cross the roadway, or that the sky
was dark and visibility poor. The court stated, “The expert gives
no factual basis for his conclusions. He states his conclusions are
based on [ ]his experience, but he does not describe pertinent
experience. He supervised the electrical department at UCLA
5
and managed street lighting and power projects. It is unclear
whether he determined where street lighting should be placed, or
managed the workers who installed the lighting, or something
else. He says he ‘interacted’ with campus police about traffic
control for events at UCLA. He does not say [ ]he managed the
projects from the perspective of safety or traffic control or that he
has any expertise, education, or experience in traffic safety,
traffic control or crowd management.”
The trial court noted that it could “reject an expert’s
conclusion ‘that does not contain “a reasoned explanation
illuminating why the facts have convinced the
expert” . . . [Citations].’ ” “Here we have only conclusions
about foreseeability from the expert. He does not identify the
facts or experience on which he bases his assertions about the
practices of Uber drivers, the ‘standard practice for commercial
venues,’ the ‘standard of care’ required in access roads, and the
‘industry standard of care.’ ”
Despite the trial court’s rejection of Serantoni’s conclusions,
the court found there was a triable issue of material fact
concerning foreseeability, because the stadium parking lot
cashier had testified that it was very common for people to walk
across traffic in that area.
Turning to the issue of causation, the trial court first found
that defendants had satisfied their initial burden to demonstrate
that plaintiff could not establish causation. The court reached
this conclusion based on Japhet’s deposition testimony “that the
car that hit Plaintiff appeared ‘unexpectedly’ and that there was
nothing that could have been done to stop the accident.” The
court also cited plaintiff’s deposition testimony “that he did ‘not
believe the Dodgers caused this accident’ and that as to his
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injuries, he did ‘not believe the Dodgers had anything to do with
it’ and that Uber is responsible for its allegedly reckless driver.”
The court acknowledged, however, that plaintiff had testified
“that he believed Dodger Stadium parking lot or the stadium
itself had an obligation ‘to settle what happened.’ ”
Having concluded that defendants had met their initial
burden, the trial court then found that plaintiff had not met his
burden to establish the existence of a triable issue concerning
causation. “Apart from the expert’s declaration, which lacked
foundation for his conclusions, Plaintiff did not submit evidence
that the accident could have been avoided with additional safety
precautions.” “At most, Plaintiff presents speculation that if
Defendants had installed additional safety measures such as
lights, cross walks, and signs for exiting cars to slow down or had
additional security personnel that evening, Plaintiff would not
have been hit. But ‘proof of causation cannot be based on mere
speculation, conjecture and inferences drawn from other
inferences to reach a conclusion unsupported by any real
evidence. . . . [Citation.]’ ” Accordingly, the trial court granted
defendant’s motion for summary judgment.
Two days later, plaintiff filed an objection to the trial
court’s order. Plaintiff contended that expert declarations
submitted in opposition to a motion for summary judgment
must be “liberally construed,” and the trial court’s “view of
Mr. Serantoni’s declaration was unduly restrictive.” Plaintiff
requested “a new hearing to allow the court to correct the error,”
and stated his intention to file “a motion for new trial to correct
this error of law.” No ruling on plaintiff’s motion appears in the
appendix provided to us by plaintiff on appeal, nor does a motion
7
for a new trial. Plaintiff contends the trial court never ruled on
his objection.
The trial court entered judgment in favor of defendants,
and plaintiff timely appealed.
STANDARD OF REVIEW
“ ‘The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.’
[Citation.] ‘[T]he party moving for summary judgment bears the
burden of persuasion that there is no triable issue of material fact
and that he is entitled to judgment as a matter of law.’
[Citation.] A defendant can meet this burden by ‘present[ing]
evidence which, if uncontradicted, would constitute a
preponderance of evidence that an essential element of the
plaintiff’s case cannot be established.’ [Citation.] ‘Once the
[defendant] has met that burden, the burden shifts to the
[plaintiff] to show that a triable issue of one or more material
facts exists as to the cause of action . . . .’ [Citations.] A triable
issue of material fact exists when ‘the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.’ [Citation.]” (Webster v. Claremont Yoga
(2018) 26 Cal.App.5th 284, 287–288 (Webster).)
Our review of an order granting summary judgment is
de novo. (Webster, supra, 26 Cal.App.5th at p. 288.) “Courts are
split,” however, “regarding the proper standard of review for the
trial court’s evidentiary rulings in connection with motions for
summary judgment and summary adjudication.” (Orange County
Water Dist. v. Sabic Innovative Plastics US, LLC (2017)
8
14 Cal.App.5th 343, 368 [noting that some courts review for
abuse of discretion and some review de novo].) Because we
conclude the trial court ruled correctly even under de novo
review, we need not decide whether a more lenient standard
applies.
DISCUSSION
Plaintiff raises two challenges on appeal. First, he argues
the trial court erred by rejecting the opinions of his expert,
Serantoni. Second, he contends the trial court erred by not
allowing him to amend Serantoni’s declaration to the extent it
was deficient. As we explain below, plaintiff’s first argument
lacks merit, and the second is forfeited. We express no opinion as
to any other aspect of the trial court’s ruling.
A. The Trial Court Correctly Rejected Serantoni’s
Opinions
The trial court found that Serantoni’s opinions lacked a
factual basis, largely because he purported to base his opinion on
his experience without describing what that experience was. The
trial court characterized Serantoni’s description of his past work
as “unclear” as to what exactly he did, noting that he “does not
say [ ]he managed the projects from the perspective of safety or
traffic control or that he has any expertise, education, or
experience in traffic safety, traffic control or crowd management.”
Therefore, although the trial court did not so state expressly, in
essence it found that Serantoni had failed to establish sufficient
expertise in the matters on which he was opining. We agree.
“ ‘A properly qualified expert may offer an opinion
relating to a subject that is beyond common experience, if
that expert’s opinion will assist the trier of fact.’ ” (Property
9
California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th
1155, 1163; see Evid. Code, § 801, subd. (a).) “A person is
qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” (Evid.
Code, § 720, subd. (a).)
There is no requirement that the proffered expert “ ‘work in
a particular field’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th
1283, 1319 (Chavez)), nor is expertise “ ‘subject to rigid
classification according to formal education or certification’ ”
(ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 294
(ABM)). “Rather, an expert’s qualifications can be established in
any number of different ways, including ‘a showing that the
expert has the requisite knowledge of, or was familiar with, or
was involved in, a sufficient number of transactions involving the
subject matter of the opinion.’ ” (ABM, at p. 294.) “The
determinative factor is whether the expert ‘has sufficient skill or
experience in the field so that his [or her] testimony would be
likely to assist the [trier of fact] in the search for the truth.’ ”
(Chavez, at p. 1319, second bracketed insertion added.) It follows
that, if a purported expert lacks such skill and experience, his or
her testimony would not assist the finder of fact, and therefore
would be inadmissible.
Here, “the subject to which [Serantoni’s] testimony relates”
(Evid. Code, § 720, subd. (a)) concerned the industry standard of
care to which defendants were subject, the safety measures taken
(or not taken) on the access road approaching Dodger Stadium,
and the training, licensure, and practices of ride-share drivers.
The brief, seven-line paragraph in Serantoni’s declaration
describing his qualifications was insufficient to show he had
10
“special knowledge, skill, experience, training, or education” in
these areas. (Ibid.)
We note preliminarily that our analysis, like that of the
trial court, is based entirely on Serantoni’s declaration, the only
information we have on his qualifications as an expert. Needless
to say, we have no knowledge of the extent of his actual
qualifications, and do not intend to disparage them in any way.
Serantoni described himself as a retired “Senior
Superintendent and Senior Facilities Management planner” at
UCLA. He explained that he “supervised the electrical
department and managed many lighting and power projects that
affected traffic and the roadways on the UCLA campus.” He
does not describe the projects or explain the term “affected”—
were traffic and roadways the targets of these projects, or merely
incidentally affected by them? Either way, did the projects
impact traffic safety or control, the matters at issue in the instant
case? The declaration is missing this connective tissue.
Serantoni further stated, “My duties included project
management of street lighting, paving, painting and striping.”
His opinions, however, did not concern the physical condition of
the access road and whether it was adequately paved, painted, or
striped, but rather whether there was sufficient signage and staff
controlling traffic.
Serantoni opined that the “standard of care” required
“bright overhead lighting.” Serantoni did not provide any detail
about his experience with street lighting to qualify him as an
expert to give an opinion on that standard of care. He nowhere
describes of what his “management” of street lighting projects
consisted, what sort of lighting he worked with, and whether it
was comparable to the lighting at issue in this case.
11
Even assuming arguendo the declaration sufficiently
established Serantoni’s expertise in street lighting, his opinion in
that regard lacked foundation no matter how liberally we
construe his declaration. He nowhere indicated that he actually
observed the lighting on the access road, or determined that it
was insufficient; indeed, he only opined that “it was likely that
there was poor visibility of pedestrians” because the incident
happened at night. There is no indication that he visited the
incident site at night to review the lighting conditions, and the
photographs he reviewed attached to Japhet’s deposition were
taken during the day. An “ ‘expert’s opinion may not be based “on
assumptions of fact without evidentiary support [citation], or on
speculative or conjectural factors . . . .” ’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747,
770.)
The last sentence describing Serantoni’s qualifications
stated, “My job also required me to interact with the campus
parking service and the University of California Police
Department regarding traffic control for events taking place at
the UCLA campus.” Serantoni did not explain of what this
interaction consisted, or what his role was in that interaction.
Therefore, it is unclear if that interaction provided him with
experience in traffic safety and control, and if so, what sort of
experience.
We note that none of Serantoni’s stated qualifications, even
viewed liberally, provided any basis to opine on the training,
licensure, and practices of ride-share drivers, one of the subjects
of his opinion. Nor is it clear what “industry” he referred to when
describing the standard of care, and what his connection is with
that industry.
12
In short, Serantoni’s declaration was too lacking in detail to
establish his qualifications to offer the opinions he provided. At
most it arguably established he could opine on street lighting,
and as we have explained, that opinion nonetheless fails for lack
of factual support.
Plaintiff argues the trial court wrongly focused on
Serantoni’s “lack of formal credentials” and his “level of seniority
and licensing” in rejecting his opinions. Plaintiff contends that a
person may qualify as an expert “based on experience and
association with others in the field that is the subject of the
testimony.” We have no quarrel with that proposition, but we
disagree that the trial court rejected Serantoni’s opinions because
of his lack of formal credentials, seniority, or licensing. The trial
court instead noted that Serantoni purported to base his opinions
on “experience” without explaining what that experience was. As
we have explained, we agree with the trial court’s assessment.
Plaintiff cites authority concerning the qualification of
experts, but the extent of the qualifications described in that
authority merely emphasizes the lack of equivalent detail in
Serantoni’s declaration.1
1 In support of the proposition that “courts have admitted
expert testimony based on experience and association with others
in the field that is the subject of the testimony,” plaintiff cites
Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774,
783 and New v. Consolidated Rock Products Co. (1985)
171 Cal.App.3d 681, 692. The experts’ qualifications were not at
issue in those cases; rather, the issue was whether the matters on
which they testified required expert testimony. (See Smith, at
p. 783; New, at p. 692.) Those cases are not instructive on the
issues before us.
13
Jennifer C. v. Los Angeles Unified School Dist. (2008)
168 Cal.App.4th 1320 (Jennifer C.) concerned a suit for negligent
supervision and maintaining a dangerous condition of public
property brought by a special-needs high school student after
another special-needs student sexually assaulted her on the
school campus. (Id. at p. 1324.) In opposing summary judgment,
the plaintiff proffered an expert who stated that he had
“ ‘personally consulted with more than 80 school districts in
12 states involving issues concerning both general and special
education students, school curriculum, school safety, school
supervision and related topics. I have conducted investigations of
school incidents and have analyzed more than 150 cases in the
past fifteen years involving issues of school supervision and
dangerous conditions on school properties, including
cases involving claims of inappropriate sexual or physical contact
between students, or students and school personnel. I have
personally qualified as an expert in school safety issues on more
than 30 occasions in Courts within California alone.’ ” (Id. at
p. 1332, italics omitted.)
The trial court excluded the expert’s opinions, in part
because he “ ‘d[id] not demonstrate any qualifications to give an
expert opinion on issues of special education.’ ” (Jennifer C.,
supra, 168 Cal.App.4th at p. 1331.) The Court of Appeal held this
was an abuse of discretion. (Id. at p. 1332.) The appellate court
“doubt[ed] that there is any school safety expert who devotes
himself or herself to the subcategory of special education school
safety,” but noted that the expert had stated, inter alia, that he
had consulted with many schools on “issues concerning both
general and special education students.” (Ibid., italics omitted.)
The appellate court further noted that, “[w]hile not
14
determinative, we also observe that the trial court’s ruling may
be at variance with the rulings of 30 other trial court rulings
concerning [the expert’s] expertise.” (Ibid.) The appellate court
described the trial court’s view of the expert’s declaration as “very
narrow and stingy.” (Ibid.)
ABM concerned expertise in “database management and
analysis” in a wage-and-hour class action. (ABM, supra,
19 Cal.App.5th at pp. 283, 294.) The proffered expert stated,
inter alia, that he had founded a company that developed billing
databases for major telecommunications companies, that he was
managing partner of another company that created billing and
database mechanisms for banks and provided database
management services databases for government and private
industries, and that a “ ‘typical transaction load’ for an ‘average
database’ maintained by his company was approximately one
million records a day.” (Id. at p. 295.) The expert also had
“ ‘extensive experience in creating, managing, and analyzing
large databases,’ including specifically timekeeping databases,”
and had “provided ‘payroll and timekeeping database analysis for
attorneys in Northern and Southern California involving
numerous wage and hour class action cases.’ ” (Ibid.)
The trial court found the expert unqualified for lack of
“ ‘evidence that he holds certificates, has obtained any kind of
college or other professional degree, belongs to any professional
organizations, has published any articles, taught or has ever
testified as an expert witness at trial.’ ” (ABM, supra,
19 Cal.App.5th at pp. 293–294.) The Court of Appeal held this
was error: “In particular, we find that the trial court’s emphasis
on formal education and membership in professional
organizations was misplaced with respect to [the expert’s]
15
stated expertise, given his clear familiarity with numerous,
highly complex transactions in [database management and
analysis].” (Id. at pp. 296–297.)
In Chavez, a police officer was injured when his three-year-
old son accidentally discharged the officer’s service weapon.
(Chavez, supra, 207 Cal.App.4th at p. 1290.) The officer sued the
manufacturers and retailers of the weapon and holster, claiming
those items lacked sufficient safety features. (Ibid.)
In opposing summary judgment, the officer filed a
declaration from a “ ‘legal consultant/expert on firearms and
firearms safety, ballistics, protective equipment, and testing
issues.’ ” (Chavez, supra, 207 Cal.App.4th at p. 1297.) The
expert’s declaration stated that he “ha[d] more than 30 years of
experience as a design engineer ‘involved in all aspects of
mechanical engineering design and analysis of firearms, other
weapons systems and related equipment’ and ‘as a Gunsmith,
proficient in the design, manufacture, repair and restoration of a
wide variety of handguns, rifles and shotguns.’ He ha[d]
‘performed ballistics and terminal effects experiments and
developed several innovative special purpose small arms
projectile and weapons subsystems.’ His areas of expertise
include[d] ‘testing and evaluation of firearms, firearm design
assessment, design optimization, product development,
ammunition, body armor and other law enforcement
equipment . . . . .’ Additionally, he ha[d] worked with various law
enforcement and correction agencies, including the National
Institute of Science and Technology—Office of Law Enforcement
Standards, for which he reviewed and revised ‘national law
enforcement equipment standards . . . .’ ” (Id. at p. 1329, fn. 17.)
16
The trial court found the expert “was not qualified to testify
concerning holsters and thus disregarded his opinions on those
points.” (Chavez, supra, 207 Cal.App.4th at p. 1300.) The Court
of Appeal held it was an abuse of discretion to exclude the
expert’s opinion that “the gun was in the holster when it was
discharged,” given the expert’s “broad” “experience and expertise
in the field of firearms and ballistics.”2 (Chavez, at p. 1319.)
“With respect to performing tests specifically to determine
whether the gun was in the holster when it was fired, [the expert]
stated, ‘I have performed forensic reconstruction work of
this nature over the course of my career in firearm design, repair,
accident reconstruction, National Standard Development and
Medical Legal Death Investigation.’ ” (Id. at pp. 1319–1320.)
The expert’s “education, experience and training clearly qualified
him for and encompassed” testing whether a gun was in the
holster when fired. (Id. at p. 1320.)
Martinez v. Costco Wholesale Corp. (C.D.Cal., Sept. 19,
2019, No. SACV 18-1296 JVS (KESX)) 2019 U.S. Dist. Lexis
212482) (Martinez), a federal case, concerned a motion for
summary judgment in an action arising from a fatal
vehicle-pedestrian collision in defendant’s parking lot. (Id.
at pp. *1–*4.) Defendant challenged the qualifications of
plaintiff’s expert, a civil engineer, arguing that the expert “has no
experience designing parking lots and is therefore unqualified to
comment upon the design of [defendant’s] parking lot . . . .” (Id.
at pp. *8–*9.)
2The appellate court found it unnecessary to address
whether the expert was qualified to opine on holster design.
(Chavez, supra, 207 Cal.App.4th at p. 1320.)
17
The district court rejected this challenge, noting that “[t]he
burden to establish expertise is not as onerous as [defendant]
advocates. Rather, the admissibility hurdle for qualifications is
relatively low, and it requires a ‘minimal foundation’ of
knowledge, skill, and experience.” (Martinez, supra, 2019 U.S.
Dist. Lexis 212482 at p. *9, quoting Hangarter v. Provident Life
& Acc. Ins. Co. (9th Cir. 2004) 373 F.3d 998, 1016.)3 The expert
at issue had a bachelor’s degree in civil engineering, had
“conducted investigations and analyzed more than 11,000
accident cases in the past 28 years, including dozens of parking
lot accidents with vehicles and pedestrians,” and had “been
qualified as a safety engineer and accident reconstruction expert
on hundreds of cases.” (Martinez, at p. *9.) He stated in
deposition that he had done many condition assessments and
safety audits of properties, including parking lots, and made
recommendations for improving parking lot safety and
compliance with the Americans with Disabilities Act. (Id.
at pp. *9–*10.) The district court found that the expert was
qualified, “based on his experience analyzing accidents, assessing
properties, and conducting safety audits.” (Id. at p. *10.) “That
he may not have experience designing parking lots goes to the
weight of his opinion.” (Ibid.)
Serantoni’s qualifications as described in his declaration
are not comparable with the qualifications of the experts in
Jennifer C., ABM, Chavez, and Martinez. The experts in those
3 Martinez applied federal law on the question of expert
qualifications. (See Martinez, supra, 2019 U.S. Dist. Lexis
212482 at p. *9.) We will assume for purposes of argument only
that federal law and state law do not materially differ on this
issue.
18
cases all described experience directly applicable to the issues on
which they were opining. In Jennifer C., a case about school
safety and negligent supervision of a special-needs student, the
expert had “ ‘personally consulted’ ” with dozens of school
districts on issues concerning “special education students,”
“school safety,” and “school supervision.” (Jennifer C., supra,
168 Cal.App.4th at p. 1332.) In ABM, a wage-and-hour case, the
expert had “ ‘extensive experience in creating, managing, and
analyzing large databases,’ including specifically timekeeping
databases,” and had “provided ‘payroll and timekeeping database
analysis for attorneys . . . involving numerous wage and hour
class action cases.’ ” (ABM, supra, 19 Cal.App.5th at p. 295.) In
Chavez, a case concerning firearm and holster safety, the expert
“ha[d] more than 30 years of experience as a design engineer
‘involved in all aspects of mechanical engineering design and
analysis of firearms, other weapons systems and related
equipment’ . . . .” (Chavez, supra, 207 Cal.App.4th at p. 1319,
fn. 17.) In Martinez, a case about a vehicle-pedestrian collision in
a parking lot, the expert had “conducted investigations and
analyzed more than 11,000 accident cases in the past 28 years,
including dozens of parking lot accidents with vehicles and
pedestrians,” and had “been qualified as a safety engineer and
accident reconstruction expert on hundreds of cases.” (Martinez,
supra, 2019 U.S. Dist. Lexis 212482 at p. *9.)4
Serantoni’s declaration, in contrast, did not indicate any
experience in traffic safety, traffic control, or the licensure,
training, and practices of ride-share drivers. Statements that he
4 In quoting these excerpts, we do not intend to suggest
that the quoted language alone would be sufficient to qualify
someone as an expert, a question we need not decide.
19
“managed lighting and power projects that affected traffic and
the roadways at UCLA campus” and “interact[ed] with the
campus parking service and the University of California Police
Department regarding traffic control,” as we have explained, are
too vague for either the trial court or this court to infer that
Serantoni developed expertise from those experiences in the
matters on which he was opining.
Plaintiff argues that courts must apply a more lenient
standard to expert opinions submitted in opposition to motions
for summary judgment. He cites Jennifer C., which held that
expert declarations submitted in opposition to summary
judgment motions are “to be liberally construed,” and do not
require the “detailed, reasoned explanation” required of expert
declarations offered in support of summary judgment motions.
(Jennifer C., supra, 168 Cal.App.4th at p. 1332; accord, Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189
(Garrett).)5
Jennifer C. and Garrett applied a rule of liberal
construction when assessing the reasoning behind the experts’
opinions. (Jennifer C., supra, 168 Cal.App.4th at p. 1333
[“Applying a liberal construction to [the expert’s] declaration and
resolving any doubts in appellant’s favor, we conclude that his
opinions were adequately supported by a reasoned explanation
and were not ‘conclusory.’ ”]; Garrett, supra, 214 Cal.App.4th at p.
5 Plaintiff claims that Reid v. Google, Inc. (2010)
50 Cal.4th 512, 535 “suggest[s] that trial courts are to apply
leniency and deference to an expert testifying in opposition to a
motion for summary judgement.” Reid does not in fact address
that topic at all, or anything concerning how trial courts are to
evaluate expert testimony.
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189 [“Liberally construing the [expert] declaration, we conclude
that the explanation provided for [the expert’s] opinion was
sufficient and that the trial court could not properly exclude the
expert testimony based on [the expert’s] failure to identify the
particular tests employed or describe the test results.”].) In
neither case, however, did the appellate court invoke a rule of
liberal construction when making the initial determination
whether the expert was qualified, nor do the facts of those cases
suggest the courts applied a more lenient standard on that
question. As discussed above, the Jennifer C. court held that,
inter alia, the expert’s stated experience in consulting on special
education issues and his prior qualification as an expert in
30 cases adequately established his experience. (Jennifer C.,
at p. 1332.) Similarly, in Garrett the Court of Appeal deemed a
“ ‘metallurgist with more than 30 years of experience in materials
analysis, failure analysis and material trade-off evaluation’ ”
qualified to opine on the “nature and hardness of the materials”
use in the prosthesis at issue in the case. (Garrett, at p. 190.)
Here, in contrast, the terse description of Serantoni’s
experience in his declaration did not demonstrate he was
qualified to opine on the multiple topics in that declaration. As
we have explained, expert opinion untethered to qualification to
render those opinions is inadmissible evidence. Accordingly, we
need not reach the question whether, liberally construed,
Serantoni’s opinions would have established a triable issue had
they been provided by a qualified expert. The trial court thus
properly rejected Serantoni’s opinions in granting summary
judgment.
Plaintiff argues the trial court applied too strict a standard
for causation when assessing Serantoni’s opinions. Because
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Serantoni’s declaration did not satisfy the threshold of
establishing his expertise, we need not decide whether the trial
court applied the correct standard for causation in evaluating
whether his opinions established a triable issue.
B. Plaintiff Forfeited His Argument That the Trial
Court Should Have Permitted Amendment of
Serantoni’s Declaration
Plaintiff argues that to the extent Serantoni’s declaration
was lacking, “it was not incurably deficient and Plaintiff should
have been given the opportunity to amend it to address the
court’s concerns prior to the dismissal of his case.” Plaintiff never
requested the trial court grant an opportunity to submit an
amended declaration, however, thereby forfeiting this argument.
(Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013 [“ ‘Failure to
raise specific challenges in the trial court forfeits the claim on
appeal.’ ”].)
As defendants note, they filed written objections to
Serantoni’s declaration, including to his qualifications, a week in
advance of the hearing on the motion for summary judgment.
The record does not indicate that plaintiff filed anything to
address those objections, or that he requested an opportunity to
do so.
Two days after the trial court granted summary judgment,
plaintiff filed a written objection to the order, raising what is now
the first argument in this appeal, that is, that the trial court
failed to apply the more lenient standard for expert declarations
in opposition to summary judgment articulated in Jennifer C. and
elsewhere. In other words, plaintiff contended that the trial court
should have accepted Serantoni’s declaration as written.
Plaintiff requested “a new hearing to allow the court to correct
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the error.” Plaintiff did not, however, suggest as an alternative
that he file an amended expert declaration addressing the trial
court’s concerns, or request from the trial court the opportunity to
do so. He thus forfeited this argument on appeal.
DISPOSITION
The judgment is affirmed. Defendants are awarded their
costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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