Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC-03-425405
Haerle, J.
I. INTRODUCTION
Appellant sued the City and County of San Francisco (hereafter CCSF) and one of its paramedics for personal injuries he suffered after falling in a Municipal Railway (hereafter Muni) station in San Francisco on a rainy night in February 2003. The trial court granted respondents’ motion for summary judgment. Appellant appeals claiming there were disputed issues of material fact. We disagree and thus affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Bonner was hurrying through the underground Muni station at Van Ness and Market Streets to catch a Muni train at around 7:30 p.m. on the evening of Saturday, February 15, 2003. At that time, Bonner was 64 and had suffered a stroke three years earlier. He also suffers from Parkinson’s disease which sometimes causes him to “shuffle” when he walks. However, he testified, he had taken medication he used when he was having trouble walking, and hence was not having that trouble on the evening in question. On that evening, there were four or five people ahead of Bonner, all hurrying along also. As he approached the turnstile, he tripped and fell on his right side, injuring his shoulder, and causing his dentures to come out of his mouth. Bonner testified he did not know what caused him to trip. He believed it was an upturned corner or wrinkled portion of a rubber-bottomed floor mat placed at the entrance to the turnstile, but he did not actually notice either the mat or its condition before he tripped and fell.
In response to a call placed by a Muni station agent, two San Francisco paramedics, one male and one female, responded and attempted to get him to his feet. But in so doing, Bonner testified and alleged in his complaint, they treated him rudely (specifically, as if he were “homeless”), kicked his feet, and told him to “get up.” When he could not do so, the male paramedic, defendant Hetzer, “positioned” his foot against appellant’s and lifted appellant to his feet by pulling on the latter’s coat lapels. Hetzer, in his deposition, testified that he did not specifically recall helping Bonner; however, the female paramedic, Chase Wilson, testified that a common method of getting a person complaining of a shoulder injury to his feet is to brace one’s own feet against that person’s feet and lift him by his clothing. Such a procedure often avoids the risk of further injury.
The paramedics also neglected to retrieve appellant’s dentures, he testified.
Bonner was then able to walk up the stairs of the underground station and was taken by ambulance to the California Pacific Medical Center hospital, Davies Campus, where he was treated for a contusion to his right shoulder.
On October 14, 2003, Bonner filed suit against CCSF and two “Doe” paramedics for personal injury. His initial complaint contained three causes of action, one for general negligence, one for premises liability, and one for an unidentified “intentional tort.”
On May 3, 2006, after discovery had taken place, appellant filed a first amended complaint naming just CCSF and paramedic Sandivar Hetzer as defendants. It enlarged the causes of action pled to four: two for general negligence, one for premises liability, and one for an intentional tort. That tort allegedly involved the actions of Hetzer toward appellant. The amended complaint was promptly answered by those defendants.
On May 26, 2006, the named defendants moved for summary judgment, contending that, per the record during the discovery, there was no evidence to show that appellant had in fact tripped on the mat, nor any evidence that the mat was, as alleged, upturned at the corner before, as distinguished from after, appellant’s fall and, further, that there was no evidence that CCSF had actual or constructive notice of the defective condition of the mat or mats before the accident.
This factual summary is based principally upon the Clerk’s Transcript filed herein. But it is also based on a portion of the contents of a January 31, 2008, filing by appellant entitled “Appellant’s Lodging of Documents Pursuant to Order Re Augmenting Record.” That document was filed in this court by appellant several months after he had filed a motion to augment the record, a motion opposed by respondents, and even longer after appellant’s counsel had written several letters to the superior court clerk’s office seeking such augmentation.
Appellant opposed the motion for summary judgment, the defendants responded, and the matter was argued in the Law and Motion Department (the Honorable Peter Busch) of the San Francisco Superior Court on July 14 and August 7, 2006. On August 21, 2006, that court granted the summary judgment motion. Judgment was duly entered against appellant on March 16, 2007.
Appellant filed a timely notice of appeal on May 8, 2007.
III. DISCUSSION
A. The Superior Court’s Ruling and our Standard of Review Thereof.
The superior court’s order granting summary judgment for CCSF and its paramedic Hetzer explains the basis for its order as follows: “In regards to plaintiff’s third cause of action for premises liability, the record contains no evidence from which a reasonable jury could find that: (1) a negligent or wrongful act or omission of a City employee created the alleged dangerous condition; or (2) a City employee or agent had actual or constructive notice of the alleged dangerous condition and sufficient time prior to the alleged injury to have taken measures to protect against the dangerous condition. The Court therefore GRANTS summary judgment as to the third cause of action. [¶] In regards to the remaining first, second and fourth causes of action for general negligence and intentional tort, plaintiff has the burden of overcoming the qualified immunity of Health & Safety Code section 1799.107, which presumes that defendant Sandivar Hetzer acted without bad faith or gross negligence in providing care to plaintiff. The record contains no evidence from which a reasonable jury could find defendant Hetzer acted with gross negligence or in bad faith. The Court therefore GRANTS summary judgment on the first, second and fourth causes of action.”
Our standard of review of such a ruling has been recently summarized by our Supreme Court as follows: “Because plaintiffs appealed from the trial court’s order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citation.] As we stated in Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181 (Sharon P.), involving a negligence claim based on a criminal act and resolved on summary judgment, ‘To prevail on [an] action in negligence, plaintiff[s] must show that defendants owed [them] a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of [their] injuries.” [Citation.] We have recently observed that the amendments to Code of Civil Procedure section 437c modified the Sharon P. rule to place the initial burden on the defendant moving for summary judgment and shift it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action. [Citation.] [¶] In this action, therefore, we must determine whether defendants have shown that plaintiffs have not established a prima facie case of negligence, ‘a showing that would forecast the inevitability of a nonsuit in defendants’ favor. If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial.’ [Citations.] [¶] In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor. [Citation.]” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
We will proceed to review the trial court’s order under that standard.
B. The Applicable Law.
As respondents’ brief points out and appellant’s sole brief does not contest, the governing law in a tort suit against a municipal corporation or one of its employees is California’s Tort Claims Act (Gov. Code, § 810 et seq.) and, more specifically, sections 835 and 835.2 thereof.
All further statutory references are to the Government Code unless otherwise noted.
Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835.)
Section 835.2 follows on by providing, in pertinent part: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. [¶] (b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. . . .” (§ 835.2.)
As respondents also correctly note, in a slip-and-fall action against a municipality––exactly the sort of case involved here––our Supreme Court held that a trial court correctly granted summary judgment in favor of the defendant municipality because of the application of this statute. It stated: “[Plaintiff’s] suit against the District is not an ordinary negligence case; it is an action under section 835. This is because a public entity is not liable for injuries except as provided by statute (§ 815) and because section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. ‘[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.’ [Citation.]” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 (Brown.)
Not only does appellant, in his only brief to us, not discuss Brown, that controlling (and very similar factually) case is not even cited in it. Which seems especially curious because, in a February 2006 letter to the San Francisco City Attorney’s office which appellant’s counsel includes in the documents he seeks to be added to the record, that case is cited twice.
Then, after quoting from section 835 and summarizing the thrust of section 835.2, the court went on: “Because there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under section 835, subdivision (b).” (Brown, supra, 4 Cal.4th at p. 829 .) It concluded its opinion by holding that, under these sections, the doctrine of res ipsa loquitor does not apply in actions brought under section 835. (Id. at pp. 829-838.)
The holding in Brown is clearly controlling here. Appellant, who several times admitted he had been “hurrying” through the Van Ness Muni station (see, e.g., CT 54), conceded that he had seen nothing wrong “with the floor, likes cracks, broken surfaces.” (Ibid.) Nor, even more significantly, before he allegedly tripped on them, had he seen whether or not the mats on the floor of the station were “flat or not.” The critical questions and answers on this subject at his July 1, 2004, deposition were as follows:
“MR. DICKEY [defense counsel]: Q. Had you seen floor mats on the station floor before the day of the incident?
“A. Yes, I must have seen them.
“Q. Did you see them the night of the incident before the incident? Before you fell?
“A. I didn’t notice.
“Q. So you hadn’t noticed whether they were flat or not?
“A. Sorry.
“Q. You say you hadn’t noticed the mats at all.
“A. I wasn’t looking for mats on the floor. I was just going along.
“Q. Where were you looking right before the accident?
“A. Where was I looking?
“Q. Yes.
“A. I was listening for the train. The trains were moving fast and I was moving fast, too. The train was coming. [¶] I went to the turnstile and wow, I fell.
“Q. Was the train that was coming the one that you wanted to take?
“A. I guess so. People were in front of me. They were going faster so I went faster, too.” (CT 53)
A few minutes later, appellant re-confirmed to defense counsel that he did not know exactly what caused him to fall:
“Q. How was it that you fell. What caused you to fall?
“A. I don’t know exactly. I was walking along and all of a sudden, bam. This is the way it took my feet, took my feet up in the air and bam.”
Finally, in response to his own counsel’s question, appellant testified:
“Q. [by Mr. Roesti] Have you talked to anybody who said that these carpets that you tripped on were in a big, rumpled condition before you tripped that day?
“THE WITNESS: Before I tripped that day?
“MR. ROESTI: Yes.
“THE WITNESS: No.”
This deposition testimony was confirmed by appellant’s responses to CCSF’s Statement of Disputed and Undisputed Facts. In response to CCSF’s Statement 5 that appellant “did not actually notice the mat or its condition before he tripped,” appellant responded that although he “had seen the floor mats turned in various directions with edges curled back on previous date” he did “not actually notice the mat or its condition before he tripped on the date of the incident.” Indeed, in his sole brief to this court, appellant specifically concedes that he “could not present evidence of the length of time the carpet was wrinkled before his arrival to the turnstile . . . .”
At oral argument––although notably not in his brief to us––appellant’s counsel cited the deposition testimony of Muni Station Agent Wilson Pham that the carpet near where he had seen Bonner standing after his accident was “wrinkled” and “flipped over a little.” But, obviously, this testimony establishes nothing regarding prior actual or constructive notice to CCSF.
This evidence confirms, as the trial court held, that appellant could not meet the strict standards of the Tort Claims Act. As noted in Brown, those standards require that the defendant, here CCSF, have “notice of the allegedly dangerous condition.” (Brown, supra, 4 Cal.4th at p. 829.) But perhaps more importantly, and as respondents note in their brief to us, there is nothing in appellant’s deposition to support the theory of appellant that in fact he fell after he tripped on a wet or crinkled mat on the floor of the Muni station. That was, and apparently still is, his theory of what happened to him on that February evening in 2003 but, as his deposition testimony makes clear, it was and is a theory only: he testified specifically that he did not “know exactly” what caused him to fall, and indeed that no one told him afterwards that he had fallen because of poorly laid out mats on the station floor.
Appellant’s response to this is to refer us to his answers to CCSF’s interrogatories, answers he verified on April 8, 2004. To that document is attached appellant’s sworn claim form against CCSF which he verified on April 1, 2003. In an attachment to that document, appellant states the following as his “Basis of Claim”: “Just before the turnstiles my right foot became entangled in one of the throw carpets that Muni had laid out (carpet size app. 42x72in. with a 2-3in rubber border).” It is this attachment to his answers to interrogatories which appellant cited to both the trial court and continues to cite to us to support his contention that appellant did, indeed, remember what he tripped on, and thus there exists a disputed issue of material fact.
There are many problems with this contention. In the first place, it does not state that there was anything amiss about the condition or placement of the “throw carpets” or mats which caused appellant to trip and fall, but only that his foot became “entangled in one of” them. Such an “entanglement” could have been caused by appellant’s “hurrying to get on the train,” his inattention to where he was walking, his occasional physical disabilities, the carelessness of some of the other people “going faster” than he was, or some combination of those factors.
Second, even interpreting the statement as asserting that there was something improper with the placement or arrangement of the mats, such a contention is inconsistent with his deposition testimony. As quoted above, that testimony was that he did not know what caused him to trip and fall. It is elemental in a summary judgment proceeding that where there are conflicts between unequivocal admissions in a party’s deposition and statements in answers to interrogatories, the former prevails. The rule has been summed up thusly: “Admissions or concessions made during the course of discovery (deposition testimony) govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.” (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613; see also, to the same effect, D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21; Jogani v. Jogani (2006) 141 Cal.App.4th 158, 177; Archdale v. American International Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473.)
Third, and as noted earlier, even assuming appellant’s statement in the attachment to his claim form accurately states the reason for his fall on the evening in question, such does not meet the requirements of section 835 (as those requirements are defined in section 835.2) that it be shown that the defendant municipality had “actual or constructive notice of the dangerous condition” of the mats or carpets and had neglected to take “measures to protect against the dangerous condition.” (§ 835, subd. (b).)
For all these reasons, the superior court properly granted respondent CCSF’s motion for summary judgment against appellant.
C. The Claims Against Respondent Hetzer.
The trial court also granted summary judgment to defendant and respondent Hetzer, the male paramedic who responded to the accident on the night in question, and who was personally named as a defendant in appellant’s first amended complaint. That complaint alleged, in its second and fourth causes of action, that Hetzer “kicked plaintiff in his leg and told him to get up. Paramedic Hetzer then used is [sic] feet to position plaintiff’s toes so they pointed straight up, and Hetzer stopped [sic] on plaintiff’s toes, while he grabbed plaintiff by the lapel of plaintiff’s coat and pulled plaintiff, while the municipal railway employees lifted plaintiff up.” That complaint also included a claim for punitive damages against Hetzer for the same alleged actions.
As noted earlier, the trial court granted summary judgment to respondent Hetzer on the basis that appellant had not sustained his “burden of overcoming the qualified immunity of Health & Safety Code section 1799.107, which presumes that defendant Sandivar Hetzer acted without bad faith or gross negligence in providing care to plaintiff. The record contains no evidence from which a reasonable jury could find defendant Hetzer acted with gross negligence or in bad faith.”
In a short section in his brief devoted to this issue, appellant quotes from Health and Safety Code section 1799.107, subdivision (b), underlining the words “unless the action taken was performed in bad faith or in a grossly negligent manner.” But, rather notably, appellant’s counsel once again leaves out an important element of applicable law, i.e., the immediately following subdivision of that statute, which provides: “For purposes of this section, it shall be presumed that the action taken when providing emergency services was performed in good faith and without gross negligence. This presumption shall be one affecting the burden of proof.” (Health & Saf. Code, § 1799.107, subd. (c).)
In view of the fact that the trial court had before it the deposition testimony of both paramedics at the scene, Hetzer and Wilson, to the effect that Hetzer used standard operating procedures in lifting appellant to his feet, the trial court was clearly correct in granting summary judgment to respondent Hetzer on the causes of action against him and also to his employer, CCSF, on those causes of action. (See § 815.2, subd. (b)).
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J. Richman, J.
This court allowed the requested augmentations to be lodged with us, but took under submission the issue of whether to allow them to be formally filed. We now rule that only the first of the three documents composing the requested augmentation will be accepted for formal filing, i.e., the June 30, 2006, declaration of appellant’s counsel in opposition to the motion of summary judgment and the exhibits thereto. The other two lengthy portions of the requested augmentations (“Documents Two and Three”) relate to a motion by appellant to reopen discovery, thus do not concern any issue ruled on by the superior court regarding respondents’ motion for summary judgment, and hence are not before us on this appeal.
However, before leaving the issue of the state of the record before us, several comments are in order regarding its inadequacy and briefing relating to it. In the first place, the Clerk’s Transcript was clearly incomplete in its original form, as almost two months after it was filed, CCSF’s counsel provided the superior court clerk a notice of four items missing from it; those items were supplied to this court eight months later. Similarly, there is appellant’s counsel’s failure to file a key portion of his opposition to respondent’s motion for summary judgment (his opposing declaration and extensive attachments), resulting in the requested augmentation which, as noted, we are granting, albeit only in part.
But most important is the failure of appellant’s counsel to follow the California Rules of Court (see Cal. Rules of Court, rule 8.204 (a)(1)C)) in properly citing to any of the record in his sole brief to us. Thus, in that brief, the citations to the deposition testimony of his client are not shown as citations to the Clerk’s Transcript but, rather, as citations to the pages of that deposition, which this court then has had to locate in the formal record. Similarly, the requested augmentation pages are not numbered consecutively, and so to find the critical statement of appellant therein as to how he tripped and fell, we have had to search for it page by page.
Also similar to Brown but involving application of the predecessor statute to the Tort Claims Act, i.e., the Public Liability Act of 1923, is Kotronakis v. City and County of San Francisco (1961) 192 Cal.App.2d 624, 630-633. It held there was no liability of the city to a person trying to board a Muni bus, but who slipped and fell on liquid on the sidewalk while attempting to do so. See also, involving the Tort Claims Act (enacted in 1963), a decision of this court, State of California v. Superior Court (1968) 263 Cal.App.2d 396, 399-401, and similar cases from other courts, e.g., Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 242-244, and Strongman v. County of Kern (1967) 255 Cal.App.2d 308, 312-316.