Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. SC088239 Peter D. Lichtman, Judge.
Kramer & Kaslow, Philip A. Kramer and Johnny Birke for Plaintiffs and Appellants.
Green & Hall and Michael T. Taurek for Defendant and Respondent.
DOI TODD, J.
After appellants’ mobile homes were damaged by a landslide, respondent Pipeline Utilities, Inc. performed remedial work at the site. Appellants later sued respondent for negligence, and respondent filed a motion for summary judgment. The trial court granted summary judgment in respondent’s favor, finding no triable issue of material fact as to causation of damages. The trial court also denied appellants leave to amend the operative complaint to add contract-based claims against respondent. Appellants challenge both rulings on appeal. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants are five mobile home owners, each of whom leased space in the Palisades Bowl Mobile Home Park (the Park), located on Pacific Coast Highway in Pacific Palisades, California. In January 2005, heavy rains caused a landslide that physically damaged appellants’ mobile homes to the point that appellants could no longer safely inhabit them. That same month, the California Department of Housing and Community Development (HCD) issued a notice to vacate, requiring appellants to evacuate their mobile homes until the City of Los Angeles approved their return. Throughout these proceedings, appellants have not been granted permission by any government agency to return to their mobile homes.
Appellants are Nancy Belanger, James A. Hooper, Mary Wilson, Jenna Slawinski and Gaelyn Marvin.
The owner of the Park at the time of the landslide, Palisades Bowl, Inc. (PBI), hired Joseph Provenzano, a licensed civil and geotechnical engineer, to investigate and make recommendations to prevent earth movement at the Park. Provenzano was present at the Park prior to and after the January 2005 landslide. He designed a hillside drainage system, and PBI hired respondent to install the drainage system under Provenzano’s watch, which included grading, hauling and removal of dirt. It is undisputed that respondent did not begin such work until March 3, 2005. It is also undisputed that prior to March 3, 2005, respondent’s work at the Park was limited to utility repairs, none of which involved removal of any portion of any slopes, toes of slope or hillside at the Park.
In January 2006, appellants filed a lawsuit against various owners of the Park alleging numerous causes of action. In December 2006, appellants filed the operative third amended complaint (TAC) adding respondent as a defendant, and alleging a single cause of action against respondent for negligence. The TAC alleged that for years PBI had been warned by different government agencies of the need to maintain and properly grade the hillside above the Park to prevent rainfall from triggering landslides, and that PBI failed to take appropriate action.
As to respondent, the TAC alleged that it acted negligently in performing construction on the hill adjacent to appellants’ mobile homes, including “certain grading activity resulting in the removal of a ‘toe’ slope creating an embankment with a height of six to ten feet, which work was not approved by the Coastal Commission, was not performed pursuant to a permit, and had the effect of removing lateral support of the hill that is adjacent to [appellants’] homes.” The TAC also alleged that the work performed by respondent “exacerbated the problem with the hill adjacent to [appellants’] homes, and thus, [appellants] have been damaged as alleged in this Complaint.”
Approximately 16 months after the TAC was filed, in April 2008 respondent filed a motion for summary judgment, arguing that appellants could not establish that respondent caused them any damages that were recoverable in tort because all of respondent’s work regarding the Park’s slopes had commenced after appellants suffered their injuries from the landslide. Appellants opposed the motion, arguing there was a triable issue of material fact as to respondent’s proportionate responsibility for appellants’ damages in the form of their inability to return to or sell their homes.
Five court days before the scheduled hearing on the summary judgment motion, appellants applied ex parte for an order shortening the time to hear a motion to file an amended complaint. Appellants sought leave to allege two additional causes of action against respondent for breach of contract between respondent and the Park’s owners based on appellants’ status as third party beneficiaries and breach of implied and express warranties. The trial court denied the application, finding that appellants failed to establish the statutory requirement of exigency for ex parte relief. Appellants then obtained a hearing date on a regularly noticed motion to amend the TAC, which fell after the hearing on the summary judgment motion. Respondent then filed a reply brief on its motion for summary judgment, as well as objections to all of appellants’ evidence.
On June 30, 2008, respondent’s motion for summary judgment was heard by the trial court. After sustaining all but four of respondent’s evidentiary objections, the trial court concluded that respondent had met its initial burden of demonstrating that appellants could not make a showing that respondent’s work caused them any damages, and that the burden had shifted to appellants to create a triable issue of fact on causation of damages. The court concluded that appellants had failed to meet their burden because they did not present competent admissible evidence that they suffered damages as a result of respondent’s work. The trial court also found that even assuming admissible evidence was offered, the evidence failed to establish damages recoverable in tort because there was no evidence that respondent caused bodily injury or physical property damage to appellants. Summary judgment was entered in favor of respondent.
Following entry of judgment in respondent’s favor, the trial court heard appellants’ regularly noticed motion to amend the TAC. The court denied the motion on the grounds that appellants had the facts necessary to timely pursue a motion to amend and had failed to provide any justifiable excuse for the delay. The trial court also noted that judgment had already been entered in favor of respondent. This appeal followed.
DISCUSSION
I. Denial of Leave to Amend TAC.
Appellants contend that the trial court abused its discretion in denying them leave to amend the TAC to add new contract-based causes of action against respondent. We disagree.
It is well established that a trial court is vested with broad discretion in allowing the amendment of any pleading. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) While it is true that courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial, this policy applies only where no prejudice is shown to the adverse party. (Ibid.) Moreover, “‘“‘even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’”’ [Citations.]” (Ibid.) Thus, appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is “‘“offered after long unexplained delay... or where there is a lack of diligence....”’ [Citation.]” (Ibid.)
Appellants supported both their ex parte application and their regularly noticed motion for leave to amend with the same attorney declaration, stating that appellants were unaware of the facts supporting their new claims until they took the deposition of respondent’s president, William Warr, on May 30, 2008, which was 31 days before the scheduled hearing on the summary judgment motion. In this regard, the declarations state only that Warr testified “about the agreement between [respondent] and the Park owners to address soil erosion and water runoff issues on the adjacent hillside,” and “that in performing the contract beginning in March 2005, [respondent] removed part of a toe on the hillside.”
But these facts were already known to and pled by appellants in their TAC, filed nearly two years earlier in December 2006, which alleged: Respondent was hired by the Park’s owner “to stabilize the hill and landslide adjacent to [appellants’] homes”; respondent failed to “exercise reasonable prudent care when it provided construction to the hill”; and during the course of the work, respondent removed a “‘toe’” in the adjacent hill creating an embankment that “had the effect of removing lateral support of the hill that is adjacent to [appellants’] homes.” Appellants proffered no explanation for their delay in seeking leave to amend their complaint. Nor did they present any facts that would allow the inference that they had acted diligently or otherwise reasonably in attempting to take discovery or amend their complaint. Indeed, the attorney declaration filed in support of the ex parte application for leave to amend states that if the application is not granted and respondent is dismissed from the case on summary judgment, appellants will be forced to file a separate action against respondent. This does not satisfy the statutory requirement of making an affirmative factual showing of “irreparable harm” or “immediate danger” if an application is not granted. (Cal. Rules of Court, rule 3.1202(c).)
Respondent points out that appellants were permitted to file another action against it based on a third party beneficiary breach of contract claim, and that this action is still pending.
Appellants’ reliance on Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059 is misplaced. There, the defendant obtained summary judgment based on a purported concession in the plaintiff’s complaint indicating that the statute of limitations had run. The appellate court noted that because the summary judgment motion was unsupported by declarations or other evidence, it operated as a motion for judgment on the pleadings. In reversing, the Kirby court concluded: “Where the complaint is challenged and the facts indicate that a plaintiff has a good cause of action which is imperfectly pleaded, the trial court should give the plaintiff an opportunity to amend.” (Id. at p. 1067.) Here, by contrast, appellants’ contract claims were not “imperfectly pleaded”; they were not pleaded at all. And while the moving defendant in Kirby relied solely on the pleadings, respondent based its summary judgment motion on both the pleadings and extrinsic evidence.
Appellants assert that respondent would have suffered no prejudice if leave to amend had been granted. We disagree. “It would be patently unfair to allow [appellants] to defeat [respondent’s] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v. Regents of University of California, supra, 151 Cal.App.4th at p. 176.) Moreover, when the regularly noticed motion for leave to amend was heard, summary judgment had already been granted in favor of respondent.
We find no abuse of discretion in the trial court’s denial of leave to amend the TAC to add new claims against respondent.
II. Summary Judgment.
A.Standard of Review
We review a grant of summary judgment de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843–857 (Aguilar).) Summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....” (Code Civ. Proc., § 437c, subd. (c).) We consider “‘all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.’” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) We must view the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at p. 843.) “In independently reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
A summary judgment motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense” thereto. (Code Civ. Proc., § 437c, subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849–850, 853–854.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.) A plaintiff cannot rely upon the mere allegations or denials of its pleadings, but “shall set forth the specific facts” based on admissible evidence showing a triable issue exists. (Code Civ. Proc., § 437c, subd. (p)(2); Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1188.)
B. The Moving Party Met Its Burden
The sole cause of action pled against respondent was for negligence. “[I]t is well recognized that in order to establish a negligence cause of action three requirements must be met: (1) the existence of a duty on the part of defendant to protect the plaintiff from the injury complained of; (2) failure of the defendant to perform that duty; and (3) injury or damage to plaintiff proximately caused by such failure. When these three elements coexist, they constitute actionable negligence, but absence of, or failure to prove, any one of them is fatal to plaintiff’s recovery.” (Hinckley v. Bechtel Corp. (1974) 41 Cal.App.3d 206, 216; Monreal v. Tobin (1998) 61 Cal.App.4th 1337, 1349.) “Although proof of causation may be by direct or circumstantial evidence, it must be by ‘substantial’ evidence, and evidence ‘which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient.’” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484.) Moreover, in a strict liability or negligence case, there must be appreciable harm before the damage element of a cause of action accrues, and compensable injury must be physical harm to persons or property, not mere economic loss. (See San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1335; Zamora v. Shell Oil Co. (1997) 55 Cal.App.4th 204, 211.)
We have little trouble concluding that respondent met its initial burden of demonstrating that the element of causation of damages could not be proved by appellants. In support of its summary judgment motion, respondent relied on the allegation of the TAC that “In January 2005, heavy rains caused a landslide that damaged [appellants’] mobile homes to the point that [appellants] could not safely inhabit them.” Respondent also submitted the declarations of Joseph Provenzano, the geotechnical engineer hired by the Park’s owner, and William Warr, respondent’s president.
Provenzano’s declaration established the following: He was present at the Park prior to and after the January 2005 landslide; he personally observed the property damage to appellants’ mobile homes caused by the landslide; he personally monitored and observed the work of respondent with regard to the slope; and based on his personal knowledge and observations, respondent did not begin any work “at, on, near, or in connection with the Slope until after the Landslide.” Warr’s declaration corroborated that respondent did not perform any work at the Park prior to March 3, 2005, “which in any way related to slope or hill work, grading, hauling or removal of dirt before March 3, 2005.” Warr attached invoices he sent to the Park’s owner reflecting that respondent did not perform any grading or dirt work at the Park until on or after March 3, 2005.
The sum and substance of respondent’s evidence, together with appellants’ admission in their TAC, was sufficient to show that respondent caused no damages to appellants, because its work at the slope did not take place until after appellants had already suffered their injuries from the January 2005 landslide. The burden was therefore shifted to appellants to present competent admissible evidence creating a triable issue of fact as to whether respondent caused them some type of damages recoverable in tort.
C. The Opposing Parties Did Not Meet Their Burden
“[I]n order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163, italics added.) “The rule of liberal construction which is applied to papers opposing motions for summary judgment has never been stretched so far as to hold that a triable issue of fact is created by a declaration that contains no evidentiary facts at all.” (Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1137.) Thus, “all statements in opposition to a motion for summary judgment which are incompetent as evidence must be disregarded.” (Id. at p. 1136.)
In opposing summary judgment, appellants conceded in the separate statement of undisputed facts that at no time prior to March 3, 2005 did respondent perform any grading activity at the Park, or remove dirt, debris or other material at or near the slope, or remove any portion of any slope or toes of slopes. Appellants apparently take the position that these concessions are irrelevant because it is their contention, as stated in their opposition brief, that respondent’s cutting of the toe in the hillside adjacent to their mobile homes resulted in a HCD inspector, Sal Poidomani, refusing to lift the order to vacate, and therefore respondent caused them to suffer damages in the form of “the complete loss of their ability to use their homes” and “the destruction of their market value.”
Even assuming, without deciding, that such damages are recoverable in a negligence claim, appellants did not offer the testimony of Poidomani or any other HCD inspector or employee, or even an expert in the field of soil mechanics or soil engineering, to establish a connection between respondent’s remedial work at the slope and appellants’ inability to move back into their homes. Instead, appellants offered two identical declarations of appellants Belanger and Hooper, stating: “Later in 2005, Mr. Poidomani returned to the site to inspect the hillside and noted that [respondent] had cut into the toe. I learned that upon doing so, he informed [the Park’s owner] that the cutting into the toe done by [respondent]—which Mr. Poidomani apparently did not authorize—precluded the Notice being lifted and required a geological test on the hillside’s stability. According to Mr. Poidomani the cutting into the toe of the hillside by [respondent] had destabilized the hillside and created a greater risk of future earth movement down the slope into our homes.” Respondent’s objections to this evidence on the grounds of lack of foundation, lack of personal knowledge and double hearsay were sustained by the trial court.
Appellants argue that the trial court abused its discretion in sustaining these objections, among others, because this testimony “related the contents of an official government document whose existence no one has disputed,” and “establish[ed] their state of mind as to why they vacated the Park at that time.” But appellants were not testifying about the content of an official document; rather, they were testifying about what they allegedly heard from the Park’s owner as to what he allegedly heard from Poidomani as to why the notice to vacate had not been lifted. Additionally, appellants’ state of mind was not at issue in the summary judgment motion. Appellants’ mere belief, without any competent supporting factual basis, could not support a finding of a causal connection between respondent’s work and appellants’ damages. We therefore find no abuse of discretion in the trial court’s evidentiary rulings.
In light of the evidentiary rulings, appellants had no admissible substantial evidence of any nexus between respondent’s work and the HCD’s refusal to lift the notice to vacate. Accordingly, the trial court correctly determined that appellants had presented “no competent evidence of causation.” Thus, appellants failed to meet their burden of creating a triable issue of material fact with respect to the element of causation of damages. As such, the trial court properly entered summary judgment in favor of respondent.
Because appellants failed to offer competent admissible evidence that respondent caused them any kind of damages, the issues of whether appellants’ damages constituted economic loss and whether such loss was recoverable under a negligence theory is moot. We therefore do not address whether the trial court correctly determined that appellants could not recover in tort for economic loss.
DISPOSITION
The summary judgment is affirmed. Respondent is entitled to recover its costs on appeal.
We concur: BOREN P. J., CHAVEZ J.