Court of Appeal, Second District, Division 3, California.
Lorena DEL VALLE, Individually and as Conservator, etc., et al., Plaintiffs and Appellants,
v.
MAGDALENO TRUCKING, INC., et al., Defendants and Respondents.
Nos. B212814, B215459.
(Los Angeles County Super. Ct. No. TC021339).
July 28, 2010.
CROSKEY, J.
Hector Antonio del Valle Haro (del Valle) suffered serious injuries when a trench compactor fell on top of him as he was attempting to unload it from a flatbed trailer. Del Valle, his wife, and their minor dependent sued the owner of the real property where the incident occurred and related parties for premises liability. The trial court awarded summary judgment in favor of those defendants on the grounds that they owed plaintiffs no duty of care and that plaintiffs could not establish either a breach of duty or causation. Plaintiffs appeal the judgments in favor of defendants Magdaleno Trucking, Inc. (Magdaleno Trucking), and Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust.
Plaintiffs contend the defendants owned or controlled the real property where the incident occurred and owed a duty to exercise due care to protect persons coming onto the land. They contend the defendants breached that duty by failing to repair or give adequate warning of a dangerous condition on the property, resulting in del Valle’s injury. We conclude that the defendants owed a duty of care to persons coming onto the land but are entitled to summary judgment on the ground that the undisputed facts show that they did not breach that duty. We therefore affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Magdaleno Living Trust owned real property located at 8255 Grimes Canyon Road in Moorpark, California. The property consisted of approximately 23 acres of land and included a warehouse, a residence, a garage, two other storage facilities, and what is described as a shop used for trucks. Portions of the property were paved with concrete, but most of the surface of the property was unpaved dirt. Magdaleno Trucking operated on the property and stored four trucks and forty trailers on the property. Miguel Magdaleno was the president of Magdaleno Trucking, was its sole officer, director, employee, and shareholder, and resided on the property.
Miguel Magdaleno allowed del Valle’s employer, Gold Coast Masonry, to store construction equipment on an unpaved portion of the property pursuant to an oral agreement with Gary Rodriguez of Gold Coast Masonry. Del Valle drove a truck pulling a flatbed trailer to the property on the morning of March 14, 2006. The trailer was carrying a trench compactor. The truck and equipment had been parked on the street outside del Valle’s home in Sylmar on the previous night. As del Valle was attempting to unload the compactor from the trailer down a ramp, the compactor shifted to the side. Del Valle either jumped or fell to the ground behind the trailer, and the compactor tipped over on its side and fell to the ground on top of him.
Jaime Magdaleno, brother of Miguel Magdaleno, witnessed the accident. He ran to a nearby forklift and used it to lift the compactor off of del Valle, who was unconscious. Del Valle remained in a coma for more than two months and suffered serious injuries.
2. Trial Court Proceedings
Lorena del Valle and Jose Luis Sanchez, as conservators of the del Valle estate; Lorena del Valle individually; and Thalia Linares, a minor, by and through Lorena del Valle as her guardian ad litem, filed a complaint against Miguel Magdaleno and others in September 2007. Plaintiffs alleged causes of action for (1) products liability, (2) negligence, (3) premises liability, and (4) loss of consortium. The only causes of action alleged against Miguel Magdaleno are for premises liability and loss of consortium.
Plaintiffs alleged that Miguel Magdaleno and fictitious defendants owned or occupied the subject real property, that they controlled the real property, that they were aware that Gold Coast Masonry stored construction equipment on the property, and that they owed plaintiffs a duty of care. They alleged that the defendants breached their duty of care by failing to “adequately ensure a dry storage and operating environment for the vehicles stored and operated at the Moorpark Storage Facility” and, in various ways, to ensure the safe maintenance and operation of the equipment used by del Valle and Gold Coast Masonry. Plaintiffs filed an amendment to the complaint substituting Magdaleno Trucking for a fictitious defendant as to counts three and four in December 2007, and filed an amendment substituting Magdaleno Living Trust for a fictitious defendant as to the same counts in May 2008.
We take judicial notice of the amendment filed on May 19, 2008, substituting the Magdaleno Family Trust for a fictitious defendant. (Evid.Code, § 452, subd. (d).) The proper defendant is Miguel Magdaleno as trustee of the trust. (See Code Civ. Proc., § 369, subd. (a)(2).)
Magdaleno Trucking filed a summary judgment motion in June 2008. Magdaleno Trucking argued that it did not own the real property, supervise or control del Valle in his operation of the equipment, or own or control the equipment that he was operating, and that it therefore owed him no duty of care. It also argued that the undisputed evidence showed that the area where the equipment was stored was flat, dry dirt, and it presented a declaration by Miguel Magdaleno and deposition testimony by Gary Rodriguez so stating. The motion was scheduled for hearing on September 2, 2008.
Plaintiffs opposed the summary judgment motion, arguing that the sole ground for the motion was the purported absence of a duty of care and that Magdaleno Trucking had failed to controvert the allegation that it controlled the area of the property where the incident occurred. Plaintiffs also filed an expert declaration by Glen Stevick stating that the area where the accident occurred was not level. Magdaleno Trucking filed an objection to that portion of the Stevick declaration and other evidentiary objections.
Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, appeared in this action for the first time when he filed answers in both capacities on the day of the summary judgment hearing on September 2, 2008. He requested a one-week continuance of the hearing to allow him to join in the summary judgment motion. He stated that he planned to join Magdaleno Trucking’s motion in its entirety and not submit additional memoranda of points and authorities or separate statements of undisputed facts. Plaintiffs argued that a joinder would deprive them of the 75-day statutory notice period, which is the required time between the filing of and the hearing on a summary judgment motion, as to the joining defendants and that the joining defendants were required to individually submit separate statements of undisputed facts in support of the summary judgment motion. In response to these objections, the trial court gave plaintiffs two options: waive the notice period or stipulate to a continuance of the trial date, which was within 75 days of the summary judgment hearing date, so that they could receive their statutory notice period. Plaintiffs refused to accept either of these options, instead arguing only that the joinder was improper and should be denied. Plaintiffs further stated that they did not want the trial date to be continued. The trial court continued the summary judgment hearing for one week and stated that it would decide at that time whether joinder was proper.
Plaintiffs contend that the Magdaleno defendants took inconsistent positions with respect to ownership and control of the Moorpark property. This is incorrect. The defendants conceded that the Magdaleno Living Trust owned the property, but all three defendants contended that they did not control the area in which del Valle parked his truck.
Plaintiffs also filed a supplemental opposition to the summary judgment motion on the original hearing date, including deposition testimony by Jaime Magdaleno stating that the portion of the property where the incident occurred was sloped and that Miguel Madgaleno and Gold Coast Masonry parked trucks in the same general area.
Miguel Madgaleno, individually and as trustee of the Magdaleno Living Trust, filed a notice of joinder in the summary judgment motion, stating that he was not liable in either capacity for the same reasons that Magdaleno Trucking was not liable. Plaintiffs filed an objection to the notice of joinder.
At the continued hearing on the summary judgment motion, the statutory notice requirement was again discussed, and plaintiffs continued to argue both that joinder was improper and that the trial should not be delayed. Plaintiffs’ counsel stated that delaying the trial “would defeat really the much larger picture here which is our case that we’ll be going to trial. We’re ready to go, and it would be detrimental to everybody, all our experts and everybody if the trial was continued because of some sort of procedural discussion.” Despite counsel’s request, the trial court refused to issue a ruling on Magdaleno Trucking’s motion for summary judgment before making counsel choose whether to waive the notice period or continue the trial. Counsel refused to agree to a continuance of the trial.
The trial court allowed the joinder after it concluded that there was no material difference between the defendants with respect to liability. Counsel for Magdaleno Trucking orally objected to the excerpts from the deposition of Jaime Magdaleno filed with plaintiffs’ supplemental opposition as untimely. The court overruled the objection and sustained the objection to the Stevick declaration. The court granted the summary judgment motion in favor of the defendants. The written order stated as to the motion by Magdaleno Trucking:
“Magdaleno Trucking, Inc. did not exercise any control over plaintiff Hector Antonio del Valle Haro in his parking or unloading the Rammax trench compactor from its trailer. Plaintiff chose the place to park. There was no competent evidence that there was a dangerous condition on the property. Accordingly, under the circumstances of the case, Magdaleno Trucking, Inc., did not owe plaintiff Hector Antonio del Valle Haro a duty of care, there was no breach of such duty and there was no issue of causation.”
Plaintiffs repeatedly assert that defendants only sought summary judgment on the issue of duty and that the trial court only granted summary judgment on that issue. This is incorrect. While defendants’ briefs lacked appropriate headings, and defendants primarily argued that they owed no duty to del Valle, they also argued that there was no breach of duty because there were no dangerous conditions on the Moorpark property. Defendants specifically identified and refuted the breaches alleged in the complaint. In their opposition to summary judgment and their opening brief on appeal, plaintiffs put forward evidence and disputed defendants’ contention that the ground on which del Valle’s truck was parked was flat, clearly arguing that defendants breached their duty to exercise reasonable care in maintaining the property. The quoted portion of the trial court’s order also clearly notified plaintiffs that summary judgment was granted as to three different elements of the premises liability cause of action.
Another written order followed, stating the same as to Miguel Magdaleno, individually and as trustee. The court entered a judgment in favor of Magdaleno Trucking on September 19, 2008, and entered a judgment in favor of Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, on November 17, 2008. Plaintiffs timely appealed the judgments. We consolidated the two appeals.
CONTENTIONS
Plaintiffs contend (1) the joinder of Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, in the summary judgment motion by Magdaleno Trucking was untimely and improper; (2) the defendants owned or controlled the real property where the incident occurred and owed a duty to exercise due care to protect persons coming onto the land; (3) the defendants breached that duty by failing to repair or give adequate warning of the alleged dangerous condition created by the slope on the property, resulting in del Valle’s injury; and (4) the sustaining of the objection to the statement in the Stevick declaration regarding the condition of the property was error.
DISCUSSION
1. Standard of Review
Summary judgment is appropriate only if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The pleadings define the issues to be considered on a motion for summary judgment, “since it is these allegations to which the motion must respond.” ( Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1252-1253; Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640-641.) A defendant moving for summary judgment must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action. ( Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 (Miller ).) If the defendant meets this burden, the burden shifts to the plaintiff to set forth “specific facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review the trial court’s ruling de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opposing party. ( Miller, supra, 36 Cal.4th at p. 460.) We will affirm a summary judgment if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons. ( California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22; see Code Civ. Proc., § 437c, subd. (m)(2).)
2. The Joinder of Defendants in the Summary Judgment Motion Was Not Untimely or Otherwise Improper
Plaintiffs contend that the joinder of Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, in the summary judgment motion by Magdaleno Trucking was untimely. Plaintiffs contend that they were entitled to receive 75-day notice of the motion for summary judgment from each defendant. “Notice of the motion and supporting papers [for summary judgment] shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” (Code Civ. Proc., § 437c, subd. (a).) Trial courts have no discretion to reduce the required notice period without the consent of or a waiver by opposing counsel. (See Code Civ. Proc., § 437c, subd. (a); UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 368; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 763-766; McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117-118.)
On the unique facts of this case, the trial court did not reduce the required notice period. Plaintiffs received the required notice from Magdaleno Trucking, and when the other Magdaleno defendants joined the motion they did not seek summary judgment on any additional grounds or file their own supporting memoranda or separate statements of undisputed facts. They joined Magdaleno’s motion in its entirety and on the same grounds. Therefore, there was no need for additional notice because the same law and facts, all present in Magdaleno Trucking’s motion, determined whether all three Magdaleno defendants were entitled to summary judgment. There was no need for plaintiffs to modify their position in any manner, so they were not prejudiced. Therefore, the notice that plaintiffs received with respect to Magdaleno Trucking sufficed for all of the Magdaleno defendants.
Not only did they receive adequate notice, but plaintiffs essentially waived any objection to the notice they received when they objected to the continuance of the trial. At the initial hearing, the trial judge gave plaintiffs the option of agreeing to either the joinder or continuance of the trial. Instead of taking this opportunity to obtain the 75 days they now request, plaintiffs objected to both options. The court then continued the hearing for a week, and the notice period was again discussed. Plaintiffs counsel refused to stipulate to continuance of the trial and emphasized that a continuance “would be detrimental.” Plaintiffs can hardly complain that they should have received notice that they refused to accept.
Plaintiffs also contend that the joinder was improper because the joining defendants did not file their own separate statements of undisputed facts. “The supporting papers [for a motion for summary judgment] shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed…. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1).) The separate statement is required to give the parties and the trial court notice of which facts are undisputed. ( Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1209-1210.) Here, the separate statement requirement was met by the separate statement filed by Magdaleno Trucking and adopted by the other Magdaleno defendants. The Magdaleno defendants were identically situated in all respects except for ownership of the Moorpark property. Defendants conceded that the Magdaleno Living Trust owned the property, taking that fact out of contention. Plaintiffs and the trial court had already received notice of all of the bases on which summary judgment was sought, and all of the facts that defendants contested were undisputed. The trial court did not abuse its discretion because it reasonably concluded that there was no need for the joining defendants to submit an identical, duplicate copy of the separate statement in this unique situation.
Plaintiffs’ reliance on Frazee v. Seely (2002) 95 Cal.App.4th 627, 635-637 (Frazee ), for the proposition that defendants can never rely on a co-defendant’s separate statement is misplaced. In Frazee, one law firm joined another law firm’s motion for summary judgment and separate statement. (Ibid.) The trial court’s grant of summary judgment for the joining law firm was in part reversed because the separate statement that had been submitted by the moving law firm did not contain facts necessary to support the grant of summary judgment in favor of the joining law firm. (Ibid.)
Even if we were to accept that the trial court erred by allowing the joinder, this technical error had no affect on the resolution of this case and does not constitute reversible error.
Code of Civil Procedure section 475 states that “[n]o judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.”
3. Defendants Owed a Duty of Care to Persons Coming onto the Land
A person who owns or possesses and controls real property owes a duty to exercise reasonable care to maintain the property in such a manner as to avoid exposing others to an unreasonable risk of injury. ( Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156, 1159.) The duty pertains to both artificial and natural conditions of the property. ( Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371.) The failure to fulfill the duty is negligence. (Id. at pp. 371-372.) The existence of a duty of care is a question of law for the court to decide. ( Alcaraz, supra, 14 Cal.4th at p. 1162, fn. 4.)
Plaintiffs allege in their complaint that the defendants owned or occupied and controlled the real property where the incident occurred. The defendants neither argued nor presented any evidence to the contrary. Instead, they argued that they owed no duty to plaintiffs because they did not control the equipment that del Valle was operating. The defendants argued that the allegations against them all concerned del Valle’s performance of his job duties and “had nothing to do with the condition of the premises.”
Magdaleno Trucking asserted that it did not own the real property, but never denied its control of the real property.
The defendants’ characterization of the complaint is somewhat inaccurate. Plaintiffs allege a count for “premises liability” (capitalization omitted) and allege that the defendants’ ownership or occupation and control of the premises gave rise to a duty of care. The specific allegations concerning the manner in which the defendants breached their duty of care principally relate to their failure to ensure the safe maintenance and operation of the equipment, rather than their maintenance of the real property. However, the complaint did allege that defendants failed to “adequately ensure a dry storage and operating environment for the vehicles stored and operated at the Moorpark Storage Facility[.]” This allegation concerns a breach of the duty of reasonable care arising from defendants’ ownership or occupation and control of the real property and demonstrates that plaintiffs were not solely alleging that defendants had a duty to supervise del Valle’s activities.
We conclude that the allegations in the complaint are sufficient to establish a duty of care and that the defendants failed to show that plaintiffs cannot establish a duty of care. Accordingly, the defendants are not entitled to summary judgment based on the absence of a duty of care.
4. Defendants Are Entitled to Summary Judgment Because They Have Shown That Plaintiffs Cannot Establish a Breach of Defendants’ Duty
The pleadings define the issues on a motion for summary judgment. ( Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1182; Laabs v. City of Victorville, supra, 163 Cal.App.4th at pp. 1252-1253; Scolinos v. Kolts, supra, 37 Cal.App.4th at pp. 640-641.) In their complaint, plaintiffs alleged that defendants breached their duty to exercise reasonable care in essentially two ways. First, plaintiffs alleged a variety of ways in which defendants failed to ensure the safe maintenance and operation of the equipment used by del Valle and Gold Coast Masonry. These alleged breaches are inadequate to establish a breach of defendants’ duty to exercise reasonable care to maintain the property in such a manner as to avoid exposing others to an unreasonable risk of injury. They are not based on how defendants maintained the property, but rather on how del Valle and his employer, Gold Coast Masonry, operated their equipment.
Second, plaintiffs alleged that defendants breached their duty to exercise reasonable care by failing to “adequately ensure a dry storage and operating environment for the vehicles stored and operated at the Moorpark Storage Facility[.]” This alleged breach falls within the scope of the duty that defendants owed del Valle. To support their motion for summary judgment, defendants presented evidence that showed that the dirt area was dry, and plaintiffs do not dispute that the area in which the accident occurred was dry. This undisputed fact precludes plaintiffs from establishing a breach on this ground.
In their opposition to summary judgment and on appeal, plaintiffs appear to have abandoned their contention that defendants breached their duty to exercise reasonable care in the manners alleged in the complaint. Plaintiffs instead argue that defendants breached their duty to use reasonable care in maintaining the premises and warning visitors of any dangers because they allowed del Valle to unload the equipment on an unleveled dirt area. Contrary to plaintiffs’ contention, even a liberal interpretation of their allegation that defendants failed to “adequately ensure a dry storage and operating environment” (emphasis added) does not reasonably include the slope of the dirt area. While plaintiffs included in the complaint the caveat that the breaches pled were non-exclusive, this also does not suffice to withstand a summary judgment challenge. A defendant moving for summary judgment need only respond to the specific allegations in the complaint, not to any conceivable theory that the plaintiff may have. ( Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1182; Laabs v. City of Victorville, supra, 163 Cal.App.4th at pp. 1252-1253; Scolinos v. Kolts, supra, 37 Cal.App.4th at pp. 640-641.)
Plaintiffs were required to seek leave to amend the complaint prior to the summary judgment hearing in order to raise this additional breach of duty allegation-plaintiffs cannot raise new, unpleaded issues in their opposition to summary judgment. ( Laabs v. City of Victorville, supra, 163 Cal.App.4th at pp. 1252-1253 [plaintiff was required to seek leave to amend the complaint prior to summary judgment hearing in order to allege additional ways in which defendants had created dangerous conditions]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648-649 [plaintiff could not allege additional ways in which defendant breached fiduciary duty without amending the complaint]; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [“[i]f the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion”]; Scolinos v. Kolts, supra, 37 Cal.App.4th at pp. 640-641.) The record does not indicate and plaintiffs do not assert that leave to amend the complaint was sought or improperly denied.
Therefore, defendants were not required to refute plaintiffs’ argument that defendants breached their duty to exercise reasonable care by allowing del Valle to unload his equipment on an unleveled dirt area in order to obtain summary judgment. While the parties dispute whether the dirt area was level, this does not create a triable issue of fact because it has no bearing on whether the defendants breached their duty of care in one of the manners alleged in the complaint.
Accordingly, defendants are entitled to summary judgment based on the absence of a breach of their duty to del Valle. We need not address plaintiffs’ contention that the sustaining of the objection to the statement in the Stevick declaration regarding the condition of the property was error, since, in light of our conclusion, it has no bearing on the propriety of the grant of summary judgment.
DISPOSITION
The judgments are affirmed. Defendants are entitled to recover their costs on appeal.
We Concur: KLEIN, P.J., and KITCHING, J.
