Bilauca v. San Francisco Bay Area Rapid Transit CA1/4

Filed 2/10/16 Bilauca v. San Francisco Bay Area Rapid Transit CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

EMANUEL BILAUCA, Plaintiff and Appellant, A143239 v. SAN FRANCISCO BAY AREA RAPID (Alameda County TRANSIT DISTRICT, Super. Ct. No. RG13664083) Defendants and Respondents.

I. INTRODUCTION Appellant Emanuel Bilauca appeals from a judgment entered in favor of respondent San Francisco Bay Area Rapid Transit District (BART) after the trial court granted BART’s unopposed motion for summary judgment. Preliminarily, we note that appellant has not provided a properly supported statement of facts in his opening brief. The California Rules of Court require that litigants provide a summary of significant facts supported by references to the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(C), (2)(C); Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628 (Cassidy) [appellate court disregards assertions and arguments that lack record references]; Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846 [court may disregard factual assertions that lack record references].) Appellant’s status as an in propria persona litigant does not excuse him

1

from the duty to comply with these rules. An appellant in propria persona is held to the same standard of conduct as that of an attorney on appeal. (Cassidy, at p. 628.) In addition to making statement of facts lacking supporting citations to the record, appellant also violates the appellate procedural rule that an appellant must fairly set forth all the significant facts, not just those beneficial to him. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Finally, his brief is almost entirely devoid of reasoned argument and citations to authority. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [court may treat points not supported with cogent argument and authority as waived].) Because appellant’s briefs on appeal fail to comply with these rules, the judgment below would be affirmed on those grounds. However, as BART points out in its appellate brief, this appeal must be dismissed because it was not timely filed. II. PROCEDURAL AND FACTUAL BACKGROUNDS On January 18, 2013, appellant filed his complaint alleging personal injuries resulting from BART’s negligence. The complaint alleged that on January 1, 2012, appellant was a passenger on a BART train when he “was attacked by an unknown person.” Appellant alleged common carrier liability under Civil Code section 2100. The complaint was filed on behalf of appellant by legal counsel. On March 15, 2013, BART filed its answer and alleged various affirmative defenses, including one asserting immunity from suit under of Government Code section 845.1 On December 6, 2013, BART filed a motion for summary judgment, which alleged three issues: (1) that there was no common carrier liability absent evidence of notice of criminal attacks aboard BART trains; (2) immunity under Government Code