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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

RODNEY A. ROMO,

Plaintiff and Appellant,

v.

UNION PACIFIC RAILROAD 

COMPANY,

Defendant and Respondent.

B304253

(Los Angeles County

Super. Ct. No. BC707679)

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.
2

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.
3

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.
4

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.
5

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.
6

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 
7

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. 
8

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 
9

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 peerreviewed 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 
10

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) 
11

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, 
12

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 selfselected 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.
13

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 
14

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 
15

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 
16

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 latefiled 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 
17

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.)
18

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.
19

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.