Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC353742, Dan T. Oki, Judge.
McElfish Law Firm and Raymond D. McElfish for Plaintiff and Appellant.
Jones & Ayotte, Normand A. Ayotte and Janice M. Corsino for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiff and appellant Sevilla Solte (plaintiff) appeals an adverse summary judgment on her claim for premises liability. We conclude that the trial court did not abuse its discretion in denying plaintiff a continuance to conduct additional discovery or in excluding plaintiff’s evidence. We also conclude that plaintiff failed to submit competent evidence sufficient to raise a triable issue of fact. We affirm the judgment.
BACKGROUND
Plaintiff was a vendor at a weekend swap meet held in the parking lot of Nogales High School in the City of La Puente. On the morning of May 28, 2005, as plaintiff was setting up her booth, she was struck and injured by a van being driven by another vendor, Jose Valles.
In June 2006, plaintiff sued Magdalena Valles, the owner of the van; the Rowland Unified School District (the District); and Nogales Nobles Regiment Boosters (Boosters), the organization that sponsored the swap meet. In her operative second amended complaint, plaintiff alleged that Ms. Valles had negligently entrusted the pickup to Mr. Valles, and that the District and Boosters had maintained a dangerous condition at the swap meet location.
Mr. Valles was not a party to this action. Ms. Valles was erroneously sued as “Magdalena Villa.” She is not a party to this appeal. We refer to the District and Boosters collectively as respondents.
Trial was set for November 27, 2007; the discovery cutoff was October 28, 2007. In July 2007, respondents filed a motion for summary judgment, with the hearing noticed for October 16, 2007. Plaintiff failed timely to file an opposition or to move for a continuance. Instead, plaintiff filed an opposition eight calendar days late, on October 10, 2007, and claimed that a paralegal in her attorney’s office had made a scheduling error.
We note that plaintiff’s reply brief on appeal also was filed more than a month late, also because plaintiff’s counsel “mistakenly calendared” the due date.
The trial court heard respondents’ motion on Tuesday, October 16, 2007. Plaintiff’s attorney did not attend the hearing, and no reason for his absence was given. Another attorney specially appeared in his stead. After seeing the trial court’s tentative ruling, the substitute attorney did not argue the merits of the motion, but asked for a continuance to the following Friday so that plaintiff’s attorney could review the tentative ruling and either submit or appear telephonically to argue the motion. The trial court refused the request to continue the hearing.
The trial court granted respondent’s motion for summary judgment. The trial court considered plaintiff’s late-filed opposition, although it found that plaintiff’s explanation for filing late was not credible. The trial court sustained respondents’ objections to much of plaintiff’s evidence. With respect to the merits, the trial court noted that plaintiff only purported to dispute three of the facts asserted in respondents’ separate statement. “Rather than referring the court to admissible evidence to demonstrate triable issues of fact,” the trial court stated, “counsel for plaintiff merely indicates that discovery is not yet complete, and blames the delay on defense counsel.... [N]o timely or proper request for a continuance has been made. The only potential other evidence submitted and referred to with regard to these facts are unauthenticated photographs of the swap meet site, and there is no declaration as to when they were taken, by whom they were taken, whether they accurately represented the scene at the time of the accident, or even what they purport to show.”
The trial court entered judgment for respondents. Plaintiff timely appealed.
DISCUSSION
A. The Trial Court Properly Denied Plaintiff’s Request for a Continuance
1. Applicable Principals and Standard of Review
Code of Civil Procedure section 437c, subdivision (h) requires a trial court to deny or continue a motion for summary judgment if the opposing party submits affidavits demonstrating “that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented....” (§ 437c, subd. (h); Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey).) Declarations supporting a request for a continuance must be submitted “in opposition” to the motion or “by ex parte motion at any time on or before the date the opposition response to the motion is due.” (§ 437c, subd. (h); see Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353.) The declaration must establish (1) that the facts the opposing party expects to obtain are essential to opposing the motion for summary judgment; (2) the reasons the opposing party believes that such facts may exist; and (3) why additional time is needed to obtain such facts. (Combs v. Skyriver Communications, Inc. (2008) 159 Ca. App.l.4th 1242, 1270 (Combs); Cooksey, supra, 123 Cal.App.4th at p. 254; see generally, Weil et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:207.15, pp. 10-76 to 10-77.) A party’s lack of diligence in pursuing discovery is a factor the trial court properly may consider in denying a continuance. (Cooksey, supra, 123 Cal.App.4th at p. 257; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76.)
Code of Civil Procedure section 437c, subdivision (h) provides in relevant part, “If it appears from the affidavits submitted in opposition to a motion for summary judgment... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had.... The application to continue the motion... may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” All statutory references are to the Code of Civil Procedure unless stated otherwise.
If the opposing party submits an adequate declaration, then denial of the motion or grant of a continuance is mandatory. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167; Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.) If no declaration is submitted or the declaration submitted fails to make the required showing, then whether to grant a continuance is a matter within the trial court’s discretion, and we review the trial court’s ruling for an abuse of discretion. (Cooksey, supra, 123 Cal.App.4th at p. 254; accord, Combs, supra, 159 Cal.App.4th at p. 1270; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100; FSR Brokerage, Inc. v. Superior Court, supra, 35 Cal.App.4th at p. 72.)
2. Discussion
In her opposition to defendant’s summary judgment motion, plaintiff requested a continuance pursuant to section 437c, subdivision (h), arguing that—although respondents’ motion was heard only 12 days before the discovery cutoff—plaintiff had not had a meaningful opportunity to conduct discovery. The trial court denied plaintiff’s request on the grounds that (1) plaintiff’s request was untimely because she had failed to make it on or before the due date for her opposition to the motion, and (2) the declaration of plaintiff’s attorney failed “to demonstrate that facts essential to oppose the motion may actually exist; at best, [it] indicate[d] that if given additional time to conduct discovery such evidence may possibly be found.”
Plaintiff has forfeited any contention that the trial court erred in denying her request for a continuance. In her opening brief, plaintiff makes the naked assertions that “[s]ummary judgment was... inappropriate in that it was based upon incomplete facts based on incomplete discovery,” and that she hoped to develop facts to support her case through additional discovery. Plaintiff neither cites nor discusses section 437c, subdivision (h) or other relevant authority, nor does she provide record citations to any evidence tending to show that further discovery might have disclosed evidence essential to opposing the summary judgment motion. (Cal. Rules Ct., rule 8.204(a)(1)(B), (C).) Plaintiff thus forfeited any claim of error. (People v. Roscoe (2008) 169 Cal.App.4th 829, 840; Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 694; Aviel v. Ng (2008) 161 Cal.App.4th 809, 821.)
Even if we were to consider the merits of plaintiff’s argument, the trial court did not err. Plaintiff was not entitled to a continuance under section 437c, subdivision (h) because, among other things, plaintiff’s request was not timely. Plaintiff was required to submit a declaration supporting her request “in opposition to [the] motion” or “by ex parte motion at any time on or before the date the opposition response to the motion is due.” (§ 437c, subd. (h), italics added.) We agree with the trial court that the “opposition to [the] motion” referred to in subdivision (h) must be a timely opposition. The Legislature’s concern with timeliness in subdivision (h) is manifest in its requirement that an ex parte motion be brought “on or before the date the opposition response is due.” Moreover, section 437c, subdivision (b) requires that any opposition “shall be served and filed not less than 14 days” before the scheduled hearing, and “the case law has been strict in requiring good cause to be shown before late filed papers will be accepted.” (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624-625, overruled on another ground in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Because plaintiff’s opposition was untimely, whether to consider the opposition was a matter within the trial court’s discretion. It would be anomalous to hold that subdivision (h) mandated a continuance when that continuance was requested in an untimely opposition that the trial court, in the exercise of its discretion, could refuse to consider altogether.
Because plaintiff’s request for a continuance did not meet the requirements of section 437c, subdivision (h), whether to grant plaintiff’s request was a matter within the trial court’s discretion. (Cooksey, supra, 123 Cal.App.4th at p. 254.) The trial court did not abuse that discretion. Plaintiff’s attorney declared that he needed depositions of seven witnesses “whose identities were unknown to Plaintiff until the discovery responses were received [from respondents]....” But plaintiff’s attorney did not identify what facts he intended to elicit from these witnesses, or what reasons he had to believe that those facts existed. (Combs, supra, 159 Cal.App.4th at p. 1270; Cooksey, supra, 123 Cal.App.4th at p. 254.)
We note that—although the trial court did not rely on these facts to deny plaintiff’s request for a continuance—the record establishes that the seven witnesses whose identities plaintiff claimed were “unknown” to her included her own husband, her daughter, and Mr. Valles—whom plaintiff had identified in her claim submitted in November 2005 (nearly two years before the summary judgment hearing) as the man driving the van that struck her. Indeed, when plaintiff made her request for a continuance to depose Mr. Valles, he had already been deposed in this action, and plaintiff relied on his deposition to oppose the summary judgment motion. Of the other four witnesses whose identities were purportedly “unknown,” plaintiff herself had identified two of them—Jeffrey Rios and J. Hsu—as witnesses in discovery responses in January 2007, more than nine months before her opposition to the summary judgment motion was due. Plaintiff was also aware of the identities of the last two witnesses—Maria Salas and Steven Kanda—no later than July 2007, when the summary judgment motion was served. Yet plaintiff failed to serve a deposition notice for Ms. Salas until October 8, 2007, after her opposition to the summary judgment motion was due. Apparently, plaintiff never noticed the deposition of Mr. Kanda. Plaintiff’s claim that the identities of these witnesses were unknown to her in time to depose them was thus inherently incredible.
Furthermore, plaintiff’s counsel failed to explain why plaintiff could not present evidence of the facts “essential” to her opposition through the declarations of other witnesses or properly authenticated demonstrative evidence. Plaintiff’s attorney argued that the facts supporting plaintiff’s position that a dangerous condition existed at the time of the accident were (1) the close proximity of vehicle and pedestrian traffic at the swap meet, (2) the “limited space” provided for vendors, and (3) the “lack of a barrier” (presumably to separate pedestrian and vehicle traffic). But evidence of these facts could have been obtained with reasonable diligence from other sources.
For example, plaintiff testified in her deposition that she had been a vendor at the swap meet for almost four years, and that she always worked at the swap meet with her daughter, Chris Pagdilao. Plaintiff and her daughter brought their merchandise to the swap meet in a “big truck” driven by her husband, Stanislaus Solte, who drove the truck onto the parking lot to unload merchandise in the morning and to load unsold merchandise in the afternoon. Plaintiff also testified that “all the vendor[s]” drove trucks into the parking lot for the swap meet, and that they did so while other vendors were walking around setting up their stands.
Yet, plaintiff did not submit her own declaration, or a declaration from her daughter, or from her husband, or from one or more of the other vendors. Presumably, any of these people would have personal knowledge regarding the proximity of vehicle and pedestrian traffic at the swap meet, the “limited space” provided for vendors, and the “lack of a barrier.” Plaintiff also could have, but did not, submit a declaration from the expert witness she had retained and designated to testify regarding the existence of a dangerous condition. For these reasons, the trial court did not abuse its discretion in denying plaintiff’s request for a continuance.
The trial court did not make a finding that plaintiff was not diligent in conducting discovery, and so we do not rest our decision on that basis. But plaintiff’s lack of diligence in conducting discovery was manifest (see, e.g., ante footnote 4) and also would have justified the trial court’s ruling. (Cooksey, supra, 123 Cal.App.4th at p. 257.)
In her reply brief, plaintiff relies on Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164. That case is inapposite. The defendant in Krantz obtained summary judgment by defeating the plaintiff’s allegations of alter ego and agency. (Id. at p. 173.) The plaintiff had sought discovery on those matters, but had been prevented from obtaining such discovery by rulings of the trial court that were at issue on the appeal and discussed in an unpublished portion of the opinion. (Id. at p. 175.) The appellate court held that, because plaintiff had been unable to obtain discovery and the evidence of alter ego and agency was within the defendant’s control, the trial court erred under section 437c, subdivision (h) by granting the motion. (Ibid.) As demonstrated by the discussion above, the situation in Krantz bears no resemblance to the situation in this case.
B. No Abuse of Discretion in Excluding Plaintiff’s Evidence
Plaintiff argues that the trial court erred by excluding evidence of a chain link fence in the parking lot at Nogales High School. Plaintiff asserted in the trial court that the fence was erected by respondents after the accident in which she was injured. On appeal, plaintiff argues that—notwithstanding the general rule prohibiting evidence of subsequent remedial measures (Evid. Code, § 1151)—evidence of the fence was relevant and admissible to show (1) respondents’ ownership or control of the parking lot, and (2) the existence of a dangerous condition. We review the trial court’s evidentiary rulings on summary judgment for abuse of discretion. (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332.)
The register of actions indicates that respondents filed written evidentiary objections concurrently with their reply brief in the summary judgment proceedings. Plaintiff failed to designate respondents’ written evidentiary objections as part of the record on appeal.
We need not resolve plaintiff’s subsequent-remedial-measure argument because the trial court properly excluded plaintiff’s evidence on another ground. The evidence relating to the fence cited by plaintiff in her separate statement consisted of a group of three photographs which show a low chain link fence in a parking lot with cars on either side of it. The photographs were attached as an exhibit to the declaration of plaintiff’s attorney. Plaintiff’s attorney declared, “Plaintiff was injured in the parking lot during a swap meet held and organized by Defendants. Following the incident which left Plaintiff severely injured, Defendants erected a fence on the parking lot where the swap meet is still held and the injury occurred. See a true and correct copy of photographs taken of the fence attach [sic] hereto as Exhibit ‘5.’” The trial court ruled that the photographs were not properly authenticated. Plaintiff has not challenged that ruling on appeal, and has therefore forfeited any claim of error. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 711.)
Even if plaintiff had challenged that ruling, the trial court was correct. To be admissible, a photograph must be authenticated. (Evid. Code, §§ 250, 1401, subd. (a).) The authentication requirement is generally minimal—it requires only testimony from a witness with personal knowledge that the photograph is an accurate representation of the scene or event depicted. (People v. Cheary (1957) 48 Cal.2d 301, 311-312; see also People v. Gonzalez (2006) 38 Cal.4th 932, 952-953.) Plaintiff’s attorney did not lay a foundation as to his personal knowledge of the scene depicted in the photographs, nor did he declare that the photographs accurately represented that scene. Plaintiff’s attorney also failed to lay a foundation as to his personal knowledge of his assertions that the fence was erected by respondents and that it was erected subsequent to plaintiff’s injury. The trial court properly excluded the photographs of the fence.
C. The Trial Court Properly Granted Summary Judgment
1. Additional Background
The facts relating to the circumstances of plaintiff’s injury were undisputed. Respondents also asserted, and plaintiff purported to dispute, the following facts relevant to whether a dangerous condition existed:
● “There were no prior similar incidents of this kind at the swap meet.”
Respondents submitted the declaration of Maria Salas, who was assistant manager and then manager of the swap meet from January 2003 to July 2007. Ms. Salas declared that, in that time, there had been no accidents at the swap meet involving motor vehicles. Steve Kanda, the District’s risk manager since 1990, declared that he was familiar with the swap meet and its history, and that there had been no accidents involving motor vehicles at the swap meet since 1990.
Respondents also submitted plaintiff’s deposition testimony and interrogatory responses. Plaintiff testified at deposition that she had been a vendor at the swap meet for nearly four years and was not aware of another incident involving a motor vehicle. She had not complained about how the vendors drove in the parking lot during the swap meet. In responses to interrogatories asking plaintiff to identify prior similar incidents, plaintiff stated that she was “unable to respond” because she had not yet conducted discovery on that issue.
Plaintiff purported to dispute this fact, but she cited no evidence. Instead, she argued that “[d]iscovery is not yet complete.”
● “The plaintiff has no evidence of the existence of any dangerous condition, dangerous use, dangerous structure or dangerous activity.”
Respondents relied on plaintiff’s interrogatory responses. Plaintiff’s responses stated that plaintiff’s claim was based on the fact that respondents “permitted vehicles on the premises where vendors and patrons were freely walking in and around subject area [sic]”; the “dangerous condition” plaintiff alleged was “the fact that no precautionary measures were taken... to properly secure the patrons and vendors from vehicles that were allowed... by [respondents]”; and plaintiff was unable to identify any “dangerous use,” “dangerous structure” or “dangerous activity.”
Plaintiff purported to dispute this fact by relying on 10 photographs showing what appear to be various people and vehicles at a parking lot swap meet. The trial court sustained defendants’ objection to the photographs on the ground that they were not properly authenticated, and plaintiff has not appealed that ruling. Plaintiff also argued that she had not completed her discovery.
Plaintiff asserted the following additional facts that she claimed were material to the issue of whether a dangerous condition existed:
Plaintiff also asserted additional facts relating to the status of discovery and the fence in the parking lot. See ante Discussion, Parts A and B.
● “Vendors pay Defendants for the privilege to participate in the swap meet.”
Plaintiff relied on a copy of the rules and regulations of the swap meet setting forth fees for vendors.
● “There was insufficient space for the number of vendors and their vehicles to maneuver safely.”
Plaintiff submitted a copy of the police report concerning the incident, and also relied on the 10 photographs referred to above, which the trial court excluded from evidence.
2. Standard of Review
On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1245-1246.) We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the non-moving party. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 768-769.) The moving party bears the burden to demonstrate “that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment “to make [its own] prima facie showing of the existence of a triable issue of material fact.” (Ibid.) “There is a triable issue of material fact if, and only if, 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.” (Ibid., fn. omitted.)
3. Discussion
In her second amended complaint, plaintiff asserted causes of action against respondents for negligence and “dangerous condition,” the latter apparently a claim for premises liability against a public entity pursuant to Government Code, section 835. On appeal, plaintiff makes no argument with respect to her common law negligence claim, but asserts only arguments with respect to respondents’ liability under section 835. Accordingly, plaintiff has forfeited any claim of error with respect to her negligence claim. We address only her claim under section 835.
Neither party raises the issue of whether Boosters is a “public entity” for purposes of Government Code section 835. (See Govt. Code, § 811.2.) Because we affirm the summary judgment on other grounds, we need not address it.
A public entity is liable for injuries sustained on public property only if, among other things, the property was in a dangerous condition at the time of the injury. (Govt. Code, § 835.) To establish a “dangerous condition,” a claimant must prove that there was “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care....” (Govt. Code, § 830, subd. (a).) Just as evidence of prior similar accidents supports an inference that a particular condition is dangerous, evidence of no prior similar accidents supports an inference that a particular condition is not dangerous when the property is used with due care. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243 [evidence of no prior accident in five years relevant to establishing whether risk of injury was substantial]; see also Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 379-380 [“absence of similar accidents or complaints” established that intersection “did not constitute a dangerous condition for drivers exercising due care”].)
Respondents submitted evidence in the declarations of Ms. Salas and Mr. Kanda, and in plaintiff’s own deposition testimony, that there were no prior similar accidents at the swap meet. Respondents also demonstrated through plaintiff’s interrogatory responses that plaintiff had no evidence to the contrary, and plaintiff submitted no contrary admissible evidence in opposition to the motion for summary judgment. The trial court thus properly concluded that defendants had submitted sufficient evidence to shift the burden to plaintiff, and that plaintiff had failed to submit competent evidence sufficient to raise a triable issue of fact regarding the existence of a dangerous condition.
In her opening brief, plaintiff reiterates her arguments that a dangerous condition was created by “the volume of foot traffic which is present at the swap meet as well as the extent of vehicle presence in the area,” the “limited space” provided to vendors, and the “lack of a barrier to offer some protection to swap meet participants.” But plaintiff cites no competent evidence in the record to support her assertions. The only record citation plaintiff offers is to 10 photographs of what appear to be a swap meet, all of which were excluded from evidence by the trial court. Plaintiff has not challenged that evidentiary ruling on appeal.
In the trial court, plaintiff also relied on the police report concerning the incident to establish that “[t]here was insufficient space for the number of vendors and their vehicles to maneuver safely.” By failing to cite or argue the police report in her appellate briefs, plaintiff has forfeited any argument based on that document. In any event, because there is no indication in the record that the trial court sustained any evidentiary objection to the report, we have reviewed it and find nothing therein to support plaintiff’s claim. The California Highway Patrol officer who wrote the report did not state that there was insufficient space in the parking lot or that it was otherwise in an unsafe condition. Rather, the report stated that Mr. Valles was driving in an unsafe and illegal manner. As noted above, a condition is “dangerous” only if it presents a substantial risk of injury when used with due care. (Govt. Code, § 830, subd. (a).) As Mr. Valles was not operating his vehicle with due care, the mere fact that the incident occurred, without more, does not support an inference of a dangerous condition.
Plaintiff also asserts that her expert witness “would” testify that the swap meet created a dangerous condition, and that unspecified “[w]itnesses to the incident will testify as to the conditions of the scene on the day of the incident....” Plaintiff, however, submitted no declaration from her expert or any “[w]itnesses to the incident” in opposition to the summary judgment motion. Her attorney’s representations about what witnesses “would” or “will” testify to are not admissible evidence.
In her reply brief, plaintiff cites Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168 and Krantz v. BT Visual Images, supra, 89 Cal.App.4th 164, to argue that the trial court erred by relying on plaintiff’s factually devoid discovery responses to support the summary judgment. Again, plaintiff forfeited any such contention by failing to raise it in her opening brief.
In any event, plaintiff is incorrect. To prevail on summary judgment, “[t]he defendant [must] show[] that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion (Code Civ. Proc., § 437c, subd. (h)).” (Aguilar, supra, 25 Cal.4th at p. 854.) “The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.)
In this case, respondents showed that plaintiff did not possess and could not reasonably obtain needed evidence by submitting plaintiff’s factually devoid discovery responses and affording plaintiff a reasonable time to oppose the motion. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101 [“Circumstantial evidence supporting a defendant’s summary judgment motion ‘can consist of “factually devoid” discovery responses from which an absence of evidence can be inferred’”]; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83 [same]; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [“a moving defendant may rely on factually devoid discovery responses to shift the burden of proof”], cited with approval in Aguilar, supra, 25 Cal.4th at p. 854, fn. 22; see also Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 451; Gaggero v. Yura (2003) 108 Cal.App.4th 884, 893 [“the logical inference [from factually devoid discovery responses] was that after discovery [the opposing party] possessed no facts to support that element”].) Moreover, in addition to plaintiff’s factually devoid discovery responses, respondents submitted affirmative evidence (including plaintiff’s own deposition testimony) that there were no prior similar accidents at the swap meet. As noted above, such evidence supports the inference that there was no dangerous condition. Defendants thus submitted evidence sufficient to shift the burden to plaintiff to submit admissible evidence to raise a triable issue of fact. Plaintiff did not do so. The cases relied upon by plaintiff are therefore inapposite.
Because we affirm the summary judgment on the issue of whether respondents maintained a dangerous condition, we need not address plaintiff’s contentions with respect to notice or joint and several liability.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.