The opinion
Filed 1/29/21 Romo v. Union Pacific Railroad Co. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
RODNEY A. ROMO, B304253
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC707679)
v.
UNION PACIFIC RAILROAD
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Elizabeth R. Feffer, Judge. Affirmed.
Marc J. Bern & Partners, D. Shawn Burkley and James
West for Plaintiff and Appellant.
Berkes Crane Robinson & Seal, Viiu Spangler Khare,
Steven M. Crane, Barbara S. Hodous and Ryan T. Moore; Cozen
O’Connor and Karl Riley, for Defendant and Respondent.
_________________________
Plaintiff and appellant Rodney A. Romo (Romo) appeals a
judgment entered in favor of defendant and respondent Union
Pacific Railroad Company (Union Pacific) following the grant of a
defense motion for summary judgment.
Romo contends the expert declaration in the moving papers
lacked foundation and therefore was insufficient to shift the
burden to him, the trial court abused its discretion in excluding
his opposing expert declarations as untimely, and he is entitled to
discretionary relief under Code of Civil Procedure section 473,
subdivision (b) to cure any procedural defect in his opposing
declarations.1
We reject Romo’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings.
On May 24, 2018, Romo filed this action against Union
Pacific. His complaint pled a single cause of action pursuant to
the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq.)
(FELA). Romo alleged that during his 17-year career with Union
Pacific as a railroad trackman, he “was exposed to various toxic
substances and carcinogens, including but not limited to diesel
fuel/exhaust, benzene, creosote, and rock/mineral dust and
fibers,” and that his “exposure to the above referenced toxic
1 All statutory references are to the Code of Civil Procedure
unless otherwise specified.
2
substances . . . caused or contributed to his development of
esophageal cancer.”
2. Union Pacific’s motion for summary judgment.
On September 9, 2019, Union Pacific filed a motion for
summary judgment. It asserted that Romo lacked any evidence,
and could not “reasonably obtain any evidence, to establish that
[his] claimed occupational exposures caused or contributed to his
alleged disease,” and that Romo therefore “cannot establish
causation as a matter of law.”
Union Pacific supported its summary judgment motion
with the declaration and reports of its expert toxicologist, Paul
Nony, Ph.D. Dr. Nony opined there was insufficient medical and
scientific literature to support a nexus between Romo’s disease,
esophageal cancer, and his claimed exposure to diesel
exhaust/fuel, benzene, creosote, rock dust/railroad ballast, penta
oil, asbestos, manganese, green dirt from copper mines,
rock/silica/mineral/coal/asbestos dust and fibers, and industrial
solvents.
Dr. Nony added that the most likely causes of Romo’s
disease were his history of severe gastroesophageal reflux disease
(GERD), smoking, and obesity.
3. Romo’s opposition to the motion for summary judgment.
On October 9, 2019, fourteen days before the scheduled
hearing date of October 23, 2019, Romo filed opposition to the
motion for summary judgment.2
Romo’s opposition was supported by the declaration of his
attorney, Mark F. Didak (Didak). Attached to the Didak
2 Section 437c, subdivision (b)(2) requires opposition papers
to be served and filed not less than 14 days prior to the hearing
on a motion for summary judgment.
3
declaration were the expert reports and curriculum vitae of
Joseph Richard Landolph, Jr., Ph.D. (Dr. Landolph), Ernest P.
Chiodo, M.D. (Dr. Chiodo), and Phillip A. Smith, Ph.D.
(Dr. Smith). The experts’ reports opined that the carcinogens to
which Romo had been exposed during his railroad employment
caused or significantly contributed to the development of his
esophageal cancer.
Romo also filed a responsive separate statement of disputed
and undisputed material facts, in which he cited his experts’
reports on the issue of causation.
4. Union Pacific’s reply papers, including evidentiary
objections to the expert reports attached to the Didak declaration.
On October 18, 2019, five days before the date set for
hearing, Union Pacific filed a reply memorandum, a reply to
Romo’s responsive separate statement, and evidentiary objections
to attorney Didak’s declaration.3
Union Pacific’s evidentiary objections numbers 1 through 3
related to the three expert reports attached as exhibits to the
Didak declaration. Union Pacific objected to these exhibits on the
ground they were not executed under penalty of perjury pursuant
to the laws of the state of California.
5. October 18 and 21, 2019: Romo files untimely expert
declarations.
On October 18, 2019, the same day that Union Pacific filed
its reply papers, Romo belatedly filed expert declarations by
Drs. Landolph and Chiodo, and on October 21, 2019, Romo filed
3 Section 437c, subdivision (b)(4) requires the reply papers to
be served and filed by the moving party not less than five days
before the hearing date.
4
an expert declaration by Dr. Smith.4 Although the time for filing
opposition papers had passed, Romo did not file a motion to be
relieved of the obligation to timely file his opposition evidence 14
days prior to the date set for hearing. (§ 437c, subd. (b)(2).)
6. Union Pacific’s objection to the late-filed declarations.
On October 21, 2019, in response to Romo’s three newly
filed expert declarations, Union Pacific filed a supplement to its
evidentiary objections. Union Pacific asserted that the three
expert declarations were inadmissible as untimely, in that
section 437c, subdivision (b)(2) prohibited the filing of any
opposition papers fewer than 14 days prior to the scheduled
hearing.
Union Pacific further argued that Romo’s counsel lacked
good cause to file the belated expert declarations because Romo’s
counsel either knew or should have known of the requirement to
file expert declarations in compliance with section 2015.5
[certification or declaration under penalty of perjury]. Union
Pacific’s papers stated: “[I]t is clear that the reason [Romo’s]
counsel filed the instant declarations in this case, is because
[Romo’s] counsel recently lost a motion for summary judgment,
based in part, upon [Romo’s] counsel’s failure to provide evidence
in opposition that complied with Section 2015.5.” Specifically, on
October 4, 2019, in Eaton v. BNSF Railway Company (Eaton), an
action in the Contra Costa Superior Court, the defendant made
the same objection at issue here, namely, that the expert report
4 The declarations of Drs. Landolph and Chiodo opined that
Romo’s occupational exposure caused or significantly contributed
to his esophageal cancer, and the declaration of Dr. Smith opined
that Union Pacific’s actions did not meet a reasonable standard of
care.
5
of Dr. Chiodo (the same expert) was improper because it failed to
comply with section 2015.5. Thus, five days before Romo’s
counsel was required to file opposition to Union Pacific’s motion
for summary judgment in the instant case, Romo’s counsel knew
of the requirement to file expert declarations that complied with
section 2015.5.
7. The matter is transferred to another department of the
superior court, and the hearing date is continued.
On October 23, 2019, the date the summary judgment
motion was scheduled to be heard, Department 3 of the superior
court transferred the case to Department 39 (Hon. Elizabeth
Feffer).
On October 31, 2019, the trial court conducted a trial
setting and motion setting conference. The court continued the
hearing on the summary judgment motion to November 19, 2019,
and “note[d] that the motion for summary judgment is fully
briefed.”
8. The court grants Union Pacific’s motion for summary
judgment.
On November 19, 2019, the matter came on for hearing and
the court granted Union Pacific’s motion for summary judgment.
The court overruled Romo’s oral objection to the competence of
Dr. Nony to render an opinion as to causation, and found that
Dr. Nony’s declaration was sufficient to shift the burden on
summary judgment to Romo on the issue of causation.
The court sustained Union Pacific’s evidentiary objections
to the three expert reports that were attached to attorney Didak’s
declaration, as well as to the later-filed expert declarations. The
court found that as a consequence of these evidentiary rulings,
“[Romo] failed to submit admissible evidence to create a triable
6
issue of fact,” and therefore Union Pacific was entitled to
summary judgment.
Romo filed a timely notice of appeal from the judgment.
CONTENTIONS
Romo contends: (1) defense expert Dr. Nony is not a
medical doctor and therefore was not qualified to opine on
whether Romo’s exposures to carcinogens were a cause of his
esophageal cancer; (2) the trial court abused its discretion in
excluding his expert declarations as untimely, and in doing so it
failed to observe the legal principles and policies underlying
FELA; and (3) discretionary relief under section 473,
subdivision (b) is warranted because the only reason for
excluding Romo’s experts was the perceived lateness or
inadequacy of his expert declarations.
DISCUSSION
1. Trial court acted within its discretion in finding that
Dr. Nony was qualified to render an opinion as to causation.
a. Governing principles and standard of review.
Evidence Code section 720, subdivision (a), permits a
person to testify as an expert “if he [or she] has special
knowledge, skill, experience, training, or education sufficient to
qualify him [or her] as an expert on the subject to which his [or
her] testimony relates. Against the objection of a party, such
special knowledge, skill, experience, training, or education must
be shown before the witness may testify as an expert.”
The trial court is the gatekeeper, having the power to
decide whether to exclude or allow expert testimony (Sargon
Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 771–772 (Sargon)), and “ ‘is given considerable
latitude in determining the [expert’s] qualifications.’ ” (People v.
7
Cooper (1991) 53 Cal.3d 771, 813.) The test applied on appeal is
whether the trial court properly exercised its discretion, and
whether the expert disclosed sufficient knowledge on the subject
to warrant admission of the opinion into evidence.
(Redevelopment Agency v. First Christian Church (1983)
140 Cal.App.3d 690, 703.) “A ruling that constitutes an abuse of
discretion has been described as one that is ‘so irrational or
arbitrary that no reasonable person could agree with it.’
[Citation.]” (Sargon, supra, 55 Cal.4th at p. 773.) This court may
find error in the trial court’s admission of expert testimony “ ‘only
if the witness “ ‘clearly lacks qualification as an expert.’ ”
[Citation.]’ ” (People v. Singleton (2010) 182 Cal.App.4th 1, 21.)
b. Romo’s objection below and the trial court’s ruling.
At the hearing on the summary judgment motion, Romo’s
counsel objected to the qualifications of Union Pacific’s expert,
stating: “Dr. Nony[’s] . . . declaration has no foundation, because
he’s an industrial hygienist. . . . [U]nder [FELA], you have to
show that there is no chance essentially that the exposures to
diesel and asbestos or other carcinogens caused or contributed
even the slightest to Mr. Romo’s cancer. For that, they would
need an epidemiologist and a doctor. [¶] So Dr. Nony’s testimony
is irrelevant to the basis on which they brought the motion. And
it’s irrelevant and lacks foundation on causation, because he’s not
the correct kind of expert to negate causation.”
The trial court overruled Romo’s objection to Dr. Nony’s
qualifications, stating: “With respect to the objections, [Romo]
did not submit written objections in advance of the hearing, but
did interpose an oral objection to the declaration of defendant’s
expert on the grounds it was not in the area of expertise, that
Dr. Nony . . . is not the proper expert to hear the matter. [¶] The
8
court did review the qualifications of this expert as set forth in
the declaration under penalty of perjury, indicating among other
things, paragraph 4, ‘Dr. Nony is a certified industrial hygienist
as determined by the American Board of Industrial Hygiene.’ It
gives his [certification] number. [¶] Paragraph 5, ‘He’s a
certified safety professional as determined by the Board of Safety
Professionals.’ [¶] Paragraph 6 indicates areas he’s been
involved in: areas of toxicology, risk of exposure to chemicals, et
cetera. [¶] Paragraph 6 [sic], number of various societies, Society
of Toxicology, South Central Chapter of Society of Toxicology,
Occupational and Public Health Specialty Section of the Society
of Toxicology, American Conference of Governmental Industrial
Hygienists, American Industrial Hygienists. [¶] I’m
paraphrasing much of the content of paragraph 7 of the
declaration. [¶] Paragraph 8 of the declaration indicates that
Dr. Nony, the expert of the defense, has written numerous peer-
reviewed publications in toxicology and related fields. It goes on
from there. It discusses what he reviewed, including
epidemiology studies. [¶] So the court does overrule [Romo’s]
oral objection to the qualifications of Dr. Nony on the grounds he
was not a proper expert to render the opinion.”
c. No merit to Romo’s contention that the trial court
abused its discretion in determining that Dr. Nony was qualified
to render an opinion as to causation.
Romo contends the trial court abused its discretion in
overruling his objection to Dr. Nony’s qualifications because
Dr. Nony is an industrial hygienist, rather than a medical doctor,
and therefore was not qualified to opine on the etiology of Romo’s
cancer. Romo asserts that Dr. Nony’s curriculum vitae, which
the trial court used to assess his qualifications, reflects that
9
Dr. Nony had not worked on any projects or written any articles
that specifically mentioned the carcinogenic effects of exposures
to the substances on which he opined in his report. Also,
Dr. Nony’s pre-doctoral work involved isolating kidney cells from
rabbits after toxic chemical exposures, and studying the effects of
neurotoxins on the brains of rodents. Romo argues that based on
this experience, Dr. Nony was not competent to opine that Romo’s
16-year exposure to diesel fuel, diesel exhaust, benzene, creosote,
rock dust, railroad ballast, penta oil, asbestos, manganese, green
dirt from copper mines, workplace industrial solvents, as well as
dust and fibers (from rock, silica, coal and asbestos) played no
role in causing Romo’s esophageal cancer.
Contrary to Romo’s argument, Dr. Nony’s lack of a medical
degree did not render him unqualified to opine that Romo’s
workplace exposures were unrelated to his esophageal cancer. In
People v. Catlin (2001) 26 Cal.4th 81, 131–132, which held that a
clinical toxicologist with a Ph.D. in physiology and pharmacology
was properly permitted to testify regarding the victim’s cause of
death from paraquat poisoning, the Supreme Court stated that
“[q]ualifications other than a license to practice medicine may
serve to qualify a witness to give a medical opinion. (People v.
Villarreal (1985) 173 Cal.App.3d 1136, 1142 [‘Because of the
dramatic growth of diverse interdisciplinary studies in recent
times, often individuals of different nonphysician professions are
called upon to give medical opinions or at least opinions involving
some medical expertise’]; see People v. Fierro (1991) 1 Cal.4th
173, 224; Brown v. Colm (1974) 11 Cal.3d 639, 645 [referring to
an “unmistakable general trend in recent years . . . toward
liberalizing the rules relating to the testimonial qualifications of
medical experts’].)” (Accord, Hernandez v. Amcord, Inc. (2013)
10
215 Cal.App.4th 659, 673 [no requirement that “ ‘a person with
an M.D. after their name’ ” expressly state that the defendant’s
product caused the plaintiff's injury to a reasonable degree of
medical probability].)
Here, irrespective of the fact that Dr. Nony is not a medical
doctor, the record reflects that he has held a Ph.D. in
interdisciplinary toxicology since 2001, and since receiving his
Ph.D. he has been actively involved in the areas of toxicology,
human health and environmental risk assessment, industrial
hygiene, and worker safety. Also, since 2003, he has worked as a
consultant in the area of human and environmental toxicology
and has been involved in numerous projects involving the
assessment of chemicals and the risk of exposure to those
chemicals, including diesel exhaust and benzene.
Dr. Nony’s declaration explained: “To properly form an
opinion on causation, one must apply the generally accepted
methodology for causation analysis. The first step in this
methodology is to determine if the alleged exposure at issue is
capable of causing the claimed disease (general causation). If the
criteria for general causation are satisfied, a specific causation
analysis is conducted to determine if the alleged exposure is the
most likely cause of that disease in the plaintiff (specific
causation). To these ends, I have compiled and reviewed the
available scientific literature and medical literature relating [to]
esophageal cancer and the chemicals to which Mr. Romo was
allegedly exposed during his employment with [Union Pacific].
The various pleadings and other materials indicate alleged
exposures to the following chemicals: diesel fuel, diesel exhaust,
benzene, rock dust/railroad ballast, creosote, Penta Oil, Asbestos,
Manganese, Green Dirt from Copper Mines, Industrial Solvents,
11
Rock/Silica/Mineral/Coal/Asbestos dust and fibers.” Dr. Nony
concluded that a review of the relevant literature shows there is
“insufficient medical and scientific literature to support [a] nexus
between [any of these substances] and Mr. Romo’s disease,
esophageal cancer, from a general or specific causation
perspective.”
In view of Dr. Nony’s education and experience, we perceive
no abuse of discretion in the trial court’s determination that he
was qualified to opine that the medical and scientific literature
does not support a nexus between the substances to which Romo
allegedly was exposed during his employment and his esophageal
cancer. Having determined that Dr. Nony was qualified to
render an opinion in that regard, the trial court was entitled to
rely on Dr. Nony’s opinion so as to shift the burden to Romo to
raise a triable issue of material fact.5
2. Trial court acted within its discretion in refusing to
consider Romo’s belated expert declarations.
a. Trial court’s ruling.
At the hearing on the motion, the trial court sustained
Union Pacific’s objections to the opposing expert declarations of
Drs. Chiodo, Landolph, and Smith, stating the declarations “were
not filed more than 14 days [preceding] the original notice date of
hearing. [¶] These declarations were filed and served on the
5 Romo also argues, in conclusory fashion, that even
assuming Dr. Nony was qualified to render an opinion as to
causation, his theory that Romo’s cancer was not caused by the
alleged exposures cannot be reasonably assessed for reliability
because it consisted solely of a review of literature “that was self-
selected by a paid defense expert.” We reject this argument,
which merely goes to the weight of Dr. Nony’s opinion, not to his
qualifications as an expert.
12
same date [the] defense’s reply papers were due, therefore are
untimely pursuant to CCP 437c, subdivision [(b)(2)].”
b. Standard of review.
The parties agree that the trial court’s exclusion of Romo’s
late-filed declarations is subject to the deferential abuse of
discretion standard. (See Meeks v. Autozone, Inc. (2018) 24
Cal.App.5th 855, 861.)
c. No abuse of discretion in trial court’s exclusion of
Romo’s late-filed opposing expert declarations.
As noted, an opposition to the motion for summary
judgment shall be served and filed not less than 14 days
preceding the noticed or continued date of hearing, and a reply to
the opposition shall be served and filed by the moving party not
less than five days preceding the noticed or continued date of
hearing. (§ 437c, subds. (b)(2) & (b)(4).) These deadlines apply
“unless the court for good cause orders otherwise.” (Ibid.) Here,
the summary judgment motion initially was calendared for
October 23, 2019. Therefore, Romo’s opposition papers were due
by October 9, 2019, and Union Pacific’s reply papers were due by
October 18, 2019.
On October 18, 2019, the same day that Union Pacific filed
its timely reply papers, Romo belatedly filed opposing expert
declarations by Drs. Landolph and Chiodo, and on October 21,
2019, Romo filed an expert declaration by Dr. Smith. Although
the time for filing his opposition papers had passed, Romo filed
these expert declarations without making a motion to be relieved
of the obligation to timely file his opposition evidence 14 days
prior to the date set for hearing. (§ 437c, subd. (b)(2).)
On October 21, 2019, presented with these late-filed
opposing declarations, Union Pacific filed a supplement to its
13
evidentiary objections. Union Pacific asserted that Romo’s three
expert declarations were inadmissible as untimely, and that
section 437c, subdivision (b)(2) prohibited the filing of any
opposition papers less than 14 days prior to the scheduled
hearing. In view of the statutory deadline for filing opposition
papers, Union Pacific’s objections to the declarations were well
taken.
The fact that the matter subsequently was reassigned to
another department of the superior court on October 23, 2019,
and that on October 31, 2019, the new judicial officer continued
the hearing to November 19, 2019, is of no assistance to Romo.
He cites no authority for the proposition that the continuance of
the hearing on the motion for summary judgment, after Union
Pacific already had filed its reply papers, automatically reopened
the briefing schedule and entitled Romo to supplement his
opposition papers without obtaining leave to do so. The summary
judgment statute contemplates the filing of one motion, one
opposition and one reply (§437c, subd. (b)(1), (b)(2), & (b)(4)), and
the timing for the filing of opposition papers is 14 days before the
hearing date (either as originally noticed or the continued date if
it has been continued). Once the opposition papers had been filed
(and indeed, here, the reply papers also had been filed), a
continuance of the hearing date did not inherently extend the
time for filing additional documents or excuse the timely filing of
opposition papers.
We note that once Romo obtained the necessary
declarations from his experts, he could have moved below for a
revised briefing schedule, particularly in light of the continuance
of the summary judgment hearing to November 19, 2019. Had
the briefing period been extended, Romo’s opposition papers
14
would have been timely, and Union Pacific would have had the
opportunity to file a proper reply to the opposition papers.
Instead, Romo unilaterally filed belated expert declarations that
overlapped with Union Pacific’s timely reply papers. The trial
court properly found that Romo’s opposing expert declarations
were untimely. (§ 437c, subd. (b)(2).)
Romo also raises an issue with respect to the trial court’s
statement at the October 31, 2019 trial setting and motion
setting conference “that the motion for summary judgment is
fully briefed.” Romo contends this statement created “an
inherent ambiguity” as to whether the trial court would consider
his expert declarations in ruling on the motion for summary
judgment. Romo then reasons, “if [his] counsel believed the
curative declarations were deemed timely by the court it would
have been redundant to ask for a new briefing schedule.” The
argument is unpersuasive. The state of the record at the time of
the October 31, 2019 conference was that there were pending
evidentiary objections by Union Pacific to Romo’s late-filed
declarations. The trial court’s statement at the conference that
the matter was “fully briefed” did not reasonably support a
conclusion by Romo that the trial court would overrule Union
Pacific’s evidentiary objections to the expert declarations to
which Union Pacific had not had a chance to reply, and that the
court would consider his belated expert declarations in ruling on
the matter.
In an effort to overcome his failure to file timely expert
declarations in opposition to summary judgment, Romo relies on
case law that FELA is to be liberally construed to further its goal
of shifting the cost of worker health in railroad operations from
employees to employers. (See, e.g., Urie v. Thompson (1949) 337
15
U.S. 163, 181–182, fn. 20; Norfolk Southern Ry. Co. v. Sorrell
(2007) 549 U.S. 158, 179 (conc. opn. of Ginsburg, J.).) However, it
is a “ ‘general and unassailable proposition . . . that States may
establish the rules of procedure governing litigation in their own
courts,’ even when the controversy is governed by substantive
federal law. (Felder v. Casey (1988) 487 U.S. 131, 138 [101
L.Ed.2d 123, 137, 108 S.Ct. 2302].)” (Rosenthal v. Great Western
Fin. Securities Corp. (1996) 14 Cal.4th 394, 409.)
Moreover, federal authority specifically has rejected the
argument that a FELA plaintiff should be granted procedural
leeway in opposing a summary judgment motion. Claar v.
Burlington Northern R. Co. (9th Cir. 1994) 29 F.3d 499 (Claar),
which involved the Federal Rules of Civil Procedure, stated: “We
deny plaintiffs’ request that we give them still another chance to
submit admissible affidavits. Parties are not permitted to file
late affidavits in support of their opposition to a motion for
summary judgment without invoking Fed.R.Civ.Proc. 56(f) [now
56(d)] and indicating why they cannot timely file the required
affidavits. [Citation.] Plaintiffs did not invoke Rule 56(f), nor
have they suggested any reason for their failure to file timely,
acceptable affidavits . . . . We decline to permit them to remedy
their deficiency at this late stage of the proceedings.” (Claar, at
p. 504.)
Therefore, we reject Romo’s contention that as a FELA
plaintiff he was entitled to lenity, and conclude the trial court
acted within the bounds of its discretion in excluding Romo’s late-
filed expert declarations.6
6 Romo assumes that had the belated declarations been
admitted, the trial court necessarily would have denied Union
Pacific’s motion for summary judgment. However, Romo’s
16
3. Romo’s request on appeal for relief under section 473,
subdivision (b) is unavailing.
Romo’s final contention is that “discretionary relief under
CCP 473(b) is merited where the only reason for exclusion of [his]
experts was the perceived lateness or inadequacy of the expert
declarations.” Romo asserts he “is entitled to relief [under
section 473] where the nature of mistake or neglect [is]
excusable.”
However, faced with Union Pacific’s objection to his belated
expert declarations, Romo did not seek relief below pursuant to
section 473 on the grounds that his delay in filing the opposing
expert declarations was due to mistake or excusable neglect, nor
did he file a declaration showing reasonable cause for his belated
opposing declarations.7 Because Romo did not bring a motion in
the court below pursuant to section 473, he cannot assert as error
responsive separate statement of disputed and undisputed facts,
which preceded his expert declarations, did not cite to his experts’
declarations; it merely cited the experts’ reports, to which the
trial court sustained objections. Further, Romo did not file an
amended separate statement that cited to his experts’
declarations. Under the so-called Golden Rule of summary
adjudication, if a fact “ ‘ “is not set forth in the separate
statement, it does not exist.” ’ ” (City of Pasadena v. Superior
Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4, italics omitted.)
Therefore, even if Romo’s expert declarations had been admitted,
his opposition papers still would have been inadequate.
7 In order to be entitled to relief under section 473, the
moving party must act diligently in seeking relief and must
submit affidavits or testimony demonstrating a reasonable cause
for the default. (Elston v. City of Turlock (1985) 38 Cal.3d 227,
234.)
17
the trial court’s failure to grant him relief that he never
requested.
Notwithstanding his failure to move below under section
473, Romo requests this court to vacate the summary judgment
with leave to file his expert declarations. However, “[w]e cannot
consider [this] belated request for section 473 relief for the first
time on appeal.” (Taylor v. Hayes (1988) 199 Cal.App.3d 1407,
1409, fn. 2.) Thus, Romo’s request for an appellate reversal
pursuant to section 473 must be rejected.
18
DISPOSITION
The judgment is affirmed. Union Pacific shall recover its
appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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