Judge: Theodore R. Howard, Case: 20-1176287, Date: 2022-08-25 Tentative Ruling

Defendant City of San Juan Capistrano’s (the “City”) Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.  (CCP § 437c(p)(2).)

The party moving for summary judgment or adjudication “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.)

Under Section 437c(p)(2), a defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.

The City is correct that Capistrano Plaza, LLC (“Capistrano”), Frontier SJC LLC (“Frontier”) and Hennessey’s Tavern, Inc. (“Hennessey’s”) (collectively, “Opposing Defendants”) improperly raise factual issues in their oppositions that are outside the scope of the pleadings.

Plaintiff’s Complaint alleges as follows: “DEFENDANTS … were otherwise responsible for the dangerous conditions at the location where the subject incident occurred, namely, a ramp adjacent to the rear patio of the restaurant located at 31761 Camino Capistrano, San Juan Capistrano, CA 92675, which restaurant is commonly referred to as Hennessey’s Tavern, and which ramp is adjacent to the pedestrian walkway known as Arguello Way[.]””  (Ex. A to the City’s Compendium of Evidence, Complaint ⁋10.) (Emphasis added.)

The Complaint further alleges: “The SUBJECT LOCATION was a dangerous condition in that it amounted to a pedestrian ramp with a decline so steep so as to render it dangerous, without the benefit of a railing, slip resistance, or other safety implements.”  (Id. at ⁋ 13.)

The Complaint goes on: “On July 31st, 2020, due to the dangerous ramp at the SUBJECT LOCATION, PLAINTIFF, who was exiting the rear patio of the above-described restaurant, stepped onto the subject ramp and lost his balance and fell, suffering severe injuries.”  (Id. at ⁋14.) (Emphasis added.)

The Complaint also alleges: “DEFENDANTS violated their duty to PLAINTIFF and to the public when it placed this dangerous ramp at the SUBJECT LOCATION and failed to own, operate, maintain, inspect, construct, and repair the subject ramp in a reasonably safe manner, thereby causing the injuries and damage to the claimant as a result of THE INCIDENT.”  (Id. at ⁋15.) (Emphasis added.)

Therefore, Plaintiff clearly alleged in the Complaint that the subject incident occurred on the ramp, and that he sustained injuries due to the dangerous conditions on the ramp.  In the City’s words, no other property is suggested to have caused Plaintiff’s damages.

Opposing Defendants do not dispute that Plaintiff’s Complaint alleges that he fell on the ramp.  Opposing Defendants also do not dispute that the City does not own, control or maintain the ramp.  (Opposing Defendants’ Response to UMF Nos. 6-9.)  Rather, they contend that the City’s motion should be denied because evidence establishes that the subject incident occurred on City owned property, not on the subject ramp, and thus the City is mistaken by asserting it did not own and control the area where the subject incident occurred.  Opposing Defendants contend their evidence creates a triable issue of material fact as to the location and cause of Plaintiff’s fall.

To be “material” for summary judgment purposes, the fact must relate to some claim or defense in issue under the pleadings.  (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)  The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings.  (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74—“the pleadings determine the scope of relevant issues on a summary judgment motion”.)

The opposing party’s opposition papers cannot create issues outside the pleadings.  (Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493; Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th 403, 421-423, 428-430; see Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 443-444—evidence offered on unpleaded claim, theory or defense irrelevant because outside scope of pleadings; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186—argument in opposition memorandum and attorney's comments at hearing insufficient to raise triable issue; Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 Cal.App.4th 261, 290—declarations in opposition to motion for summary judgment “are not a substitute for amending the pleadings to raise additional theories of liability”.)

“[S]ummary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]”  (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)

Here, the pleading clearly alleges that the subject incident occurred on the ramp, and that Plaintiff sustained injuries due to the dangerous conditions on the ramp.  (Complaint ¶¶ 10, 13-15.)  A fair reading of the Complaint’s allegations do not suggest a location of the incident other than the subject ramp.  Thus, the only incident location that is material for purposes of the City’s summary judgment motion is the subject ramp.  Opposing Defendants attempt to create issues outside the pleadings by offering evidence on an unpleaded claim, theory or defense, namely, that the subject incident occurred on the public walkway known as Arguello Way and not on the subject ramp.

The Court finds that such evidence is irrelevant to the present motion and does not create a triable issue of material fact because it is outside the scope of the pleadings.  (See above authorities.)

Here, the only allegedly dangerous location and cause of Plaintiff’s injuries at issue in the pleadings is the subject ramp.  In order for the City to succeed on its motion, the City need only refute the causes of action as alleged in the Complaint.  (Hutton v. Fidelity Nat'l Title Co., supra, 213 Cal.App.4th at 493—summary judgment defendant need only “negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings” (emphasis in original).)

Turning to whether the City has met its initial burden on its summary judgment motion, Plaintiff’s Complaint alleges two causes of action against the City: (1) Negligence/Premises Liability and (2) Dangerous Condition of Public Property.  In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.  (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81)   “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.”  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, overruled on other grounds in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666.)

An essential factual element of a cause of action for dangerous condition of public property (Gov. Code § 835) is that the defendant owned or controlled the property.  (See CACI 1100; Gov. Code § 835— “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property…[.] (emphasis added).)

Here, the City has produced evidence demonstrating that it did not own, control or maintain the ramp where the subject incident occurred.  (See City’s Compendium of Evidence, Exs. G, H, I, J, L.)  Opposing Defendants do not dispute that the City does not own, control or maintain the ramp.  (Opposing Defendants’ Response to UMF Nos. 6-9.)

The Court finds the City’s evidence is sufficient to meet its burden.  The evidence establishes that the City did not own, control or maintain the property alleged to be in a dangerous or defective condition, i.e., the subject ramp.  Thus, the City cannot be held liable for Plaintiff’s injuries caused by said ramp.  Accordingly, the City has met its burden of demonstrating that Plaintiff cannot establish an essential element of his claims against the City.  The burden shifted to Plaintiff to demonstrate the existence of a triable issue of material fact.  Plaintiff did not oppose the City’s motion and thus has failed to meet his shifted burden.

In addition, as explained above, the evidence offered by Opposing Defendants does not create a triable issue of material fact.

Accordingly, the City’s motion is GRANTED.

Hennessey’s Request for Judicial Notice is GRANTED as to the existence, date of recordation and clear legal effect of Ex. 6 to RJN.  (Evid. Code § 452; see Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)

The City’s evidentiary objection nos. 1 through 50 at ROA 100 are SUSTAINED as to relevancy.  The City’s evidentiary objection nos. 1 through 28 at ROA 98 are SUSTAINED as to relevancy.

The Court declines to rule on the City’s remaining evidentiary objections as they are not material to the disposition of the motion.  (CCP § 437c(q).)

Moving party to give notice.