Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 455469
Ruvolo, P. J.
I.
Introduction
Appellants Jennifer A. Drinkwater and her husband Robert Drinkwater (appellants) appeal from a judgment entered in favor of respondent Black & Veatch Corporation (respondent), after the trial court granted respondent’s motion for summary judgment and denied appellants’ request for leave to amend the complaint against respondent. The motion for summary judgment was based principally on the ground that there was no triable issue of fact as to whether respondent owned, occupied, or controlled any property containing asbestos, a factual element essential to establishing the premises liability cause of action asserted against respondent. Appellants contend on appeal that the complaint also stated a claim for general negligence against respondent, but if a viable negligence claim had not been stated adequately, the trial court abused its discretion in denying appellants’ motion for leave to amend.
We disagree with appellants, and affirm the judgment.
II.
Factual and Procedural Background
On September 7, 2000, appellants’ trial counsel filed a “Master Complaint-Asbestos” in San Francisco Superior Court, pursuant to that court’s “General Order No. 55.” Under this general order, a master complaint or master answer could be incorporated by reference by the filing party in any subsequently filed asbestos exposure litigation involving that party. The order further stated that, to make it effective in future litigation, counsel must file a “Summary Pleading” in each subsequent case containing: (1) a case caption, (2) notice that a master pleading is on file, (3) a specification as to what “claims or affirmative defenses contained in the [m]aster [p]leading which are being asserted against the party being served,” and (4) case specific information necessary to meet statutory pleading requirements.
On August 23, 2006, appellants filed a complaint for personal injury and loss of consortium-asbestos. Pursuant to General Order No. 55, the complaint referenced in chart form, those claims pleaded in the “Master Complaint-Asbestos” against the individual defendants sued in the current action. The chart included defendant groups B through G, which corresponded to exhibits attached to the complaint listing the names of the defendants comprising each group. Respondent was listed as a defendant in group C, and the chart noted that claims were being asserted against group C defendants only for “Premises Owner/Contractor Liability” and “Loss of Consortium.” The chart included boxes to be checked for claims asserting negligence, among others. However, the corresponding box for negligence was checked only as to group B, which did not include respondent.
A motion for calendar preference was made in mid-October by appellants based upon a showing that appellant Jennifer Drinkwater was not expected to live more than six months. Several of the defendants, including respondent, filed a “Conditional Non-Opposition” to the motion. After discussing the status of pending formal and informal discovery, the non-opposition defendants requested that trial be set no earlier than 120 days from any order granting preference, and that expert discovery remain open until the case was assigned to a trial department, in accordance with General Order Nos. 140 and 156.
The motion was granted by the trial court on October 31, 2006. The order granting calendar preference set strict procedural time limits for further proceedings. The case was “singly assigned” to Judge Katherine Feinstein, and the parties were ordered to appear before Judge Feinstein on November 3, 2006. Any motions for summary judgment were ordered to be filed and hand or electronically served no later than 15 days before trial.
Also in mid-October, appellants filed their “Second Amendment to Complaint,” which added another defendant. Respondent made a request for leave to file a first amended answer, which was not opposed by appellants, and the motion was granted by order dated December 6, 2006. By then, February 20, 2007, had been set as the trial date. That same day, respondent’s first amended answer was filed, which included a general denial pursuant to Code of Civil Procedure section 431.30, and 45 separate affirmative defenses.
On or about January 23, 2007, respondent filed a motion for summary judgment, calendared to be heard on February 9. The motion sought judgment on four separate grounds, including that: (1) respondent was not liable to appellants on a theory of premises liability, (2) respondent owed no tort duty of care to appellants, (3) appellants’ claim was barred by the Kansas and Texas statutes of repose, and (4) respondent could not be found liable on an unpled theory of professional negligence.
All further dates are in the calendar year 2007, unless otherwise indicated.
The motion was extensively briefed by both sides, and a hearing was held on February 9, as originally set. That same date the trial court entered a written order granting respondent’s motion for summary judgment, concluding that appellants had sued respondent on a theory of premises/contractor liability only, and there was no triable issue of fact which could establish that respondent owned, occupied or controlled premises containing asbestos, which was a factual predicate to the claim against respondent. Furthermore, in its written order, the trial court denied an oral motion made by appellants during the hearing to amend their complaint. In denying this oral motion, the court found that, given that the trial was set to commence in only 11 days, respondent would be prejudiced if an amendment were allowed, including being deprived of an opportunity to file an additional motion for summary judgment addressing the new negligence cause of action.
On February 15, appellants applied to the court for an order shortening time to allow them to bring a motion before trial commenced to amend their complaint “to conform to proof.” Alternatively, appellants intended to move for a new trial or for reconsideration of respondent’s motion for summary judgment. The following day, the trial court issued a written order entering judgment in favor of respondent.
A hearing on the combined, alternative motions was held on March 16, and a written order denying the motions was filed on March 29. The trial court denied appellants’ motion to reconsider on the principal ground that, since judgment had already been entered in favor of respondent, the court lacked jurisdiction to reconsider its earlier ruling granting summary judgment. Alternatively, the court denied the motion on the additional procedural grounds that no attorney affidavit accompanied the motion, as required by Code of Civil Procedure section 1008a, and there was no showing of new or different facts or new law justifying reconsideration of the court’s earlier ruling.
As to appellants’ motion to amend the complaint to conform to proof, the court reiterated its comments made during the hearing on the motion for summary judgment when the subject of an amendment to the complaint was first raised by appellants’ counsel, and added some further observations and findings: “This Court believes that [respondent] would be prejudiced by an amendment at this time. Discovery is closed. [Respondent] prepared its defense and conducted its discovery based on the claim [appellants] filed against it. If the Court permitted amendment at this late stage, discovery would have to begin anew. [Appellants] could easily have moved to amend the Complaint in the months following the filing of the initial Complaint, but did not do so.”
The court went on to note that the posture of the case was “beyond” the “eve of trial,” inasmuch as the trial had already actually commenced against the remaining defendants. Additionally, the court noted that it was appellants who sought trial preference, and that the last day upon which trial could commence under the applicable statute was February 28. Despite the time exigency created by appellants’ own preference, appellants had consistently opposed any attempt to continue the trial date to accommodate their desire to amend the complaint and ameliorate the prejudice to respondent. Lastly, the court observed that there had been ample time to have timely filed a motion to amend in the preceding months, and appellants had failed to do so, or to offer any reason for this omission. Appellants’ motion for new trial was also denied without comment.
This timely appeal followed.
III.
A. Summary Judgment Was Properly Granted
Our review of a summary judgment is de novo. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) Furthermore, “in moving for summary judgment, a ‘defendant . . . has met’ his ‘burden of showing that a cause of action has no merit if’ he ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of his ‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’. . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Similarly, a party opposing a motion for summary judgment may not overcome the moving party’s prima facie showing by merely asserting that a fact is disputed without citation to evidence that actually controverts the moving party’s factual statement. (Cal. Rules of Court, rule 3.1350(f).)
We independently review the trial court’s decision to grant summary judgment, using the same three-step analysis as the trial court: (1) identifying the issues framed by the pleadings; (2) determining whether the defendant negated the plaintiff’s claims; and (3) deciding whether the plaintiff demonstrated the existence of a triable, material factual issue. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
Appellants do not genuinely dispute that their complaint against respondent was denominated as one based on premises liability. Similarly, they virtually concede that respondent rebutted an essential element of a premises liability claim by demonstrating that respondent did not own, occupy, or control any property containing asbestos. Instead, as they did in the trial court, appellants argue that their complaint also encompassed a claim for general negligence, and respondent failed to show the absence of a triable issue of fact relating to this broader claim.
The general principles of premises, or “landowner” liability were most notoriously set forth in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland): “The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . . [¶] . . . Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” (Id. at p. 119.)
Superseded by statute as stated in Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 467-468.
More recently, our Supreme Court has observed that this formulation of liability for the condition of one’s premises is similar to that articulated in the Restatement Second of Torts: “This formulation is similar to the Restatement Second of Torts, section 343, on which Kinsman in the present case partly relies: ‘A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he [¶] (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and [¶] (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and [¶] (c) fails to exercise reasonable care to protect them against the danger.’
“ ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. [Citation] However, this is not true in all cases. “[I]t is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.” ’ (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 . . . [duty to protect against obvious electrocution hazard posed by overhead electrical wires]; see also Rest.2d Torts, § 343A [possessor of land liable for obvious danger if ‘the possessor should anticipate the harm despite such . . . obviousness’].)” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673 (Kinsman).)
The summary pleading filed by appellants asserts a single charging cause of action against respondent titled “Premises Owner/Contractor Liability,” which corresponds to the fifth cause of action in the master pleading. Throughout the fifth cause of action, the defendants are referred to as the “Premises Owner/Contractor Liability Defendants.” Importantly, the charging allegations of the fifth cause of action follow closely those elements of premises liability discussed by our Supreme Court in both Rowland and Kinsman:
Respondent was also sued for appellant Robert Drinkwater’s loss of consortium, enumerated as the sixteenth cause of action in both the master pleading and the complaint. That cause of action does not contain any independent allegations of fault, but instead is limited to allegations of damages, while incorporating other provisions of the master pleading asserting the substantive claims designated as to each defendant.
“51. At all times mentioned herein, the Premises Owner/Contractor Liability Defendants, and each of them, respectively, owned, leased, maintained, managed, and /or controlled the premises listed on Exhibit ‘C’ where plaintiff was present. . . .
“52. Prior to and at said times and places, said Premises Owner/Contractor Liability Defendants, and each of them, respectively, caused certain asbestos . . . to be constructed, installed, maintained, used, supplied, replaced, repaired and/or removed on each of the aforesaid premises, by their own workers and/or by various [] contractors, and . . . thereby created a hazardous and unsafe condition to plaintiff and other persons exposed to said asbestos . . . while present at said premises.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“56. At all times mentioned herein, said Premises Owner/Contractor Liability Defendants . . . remained in control of the premises where plaintiff was performing his work.
“57. At all times mentioned herein, the Premises Owner/Contractor Liability Defendants owed to plaintiffs and others similarly situated a duty to exercise ordinary care in the management of such premises in order to avoid exposing workers such as plaintiff to an unreasonable risk of harm and to avoid causing injury to said person.
“58. At all times mentioned herein, said Premises Owner/Contractor Liability Defendants, and each of them, knew, or in the exercise of ordinary and reasonable care should have known, that the premises that were in their control would be used without knowledge of, or inspection for, defects or dangerous conditions and that the persons present and using said premises would not be aware of the aforesaid hazardous conditions to which they were exposed on the premises.
“59. At all times mentioned herein, said Premises Owner/Contractor Liability Defendants, and each of them, negligently failed to maintain, manage, inspect, survey, or control said premises or to abate or correct, or to warn plaintiff of, the existence of the aforesaid dangerous conditions and hazards on said premises.”
Despite what is obviously a premises liability claim, appellants argue we should extrapolate from this cause of action a claim for general negligence, pointing to other provisions of the master pleading incorporated by reference in which the word “negligence” appears. We disagree. It is an unreasonable reading of the fifth cause of action, particularly together with the summary complaint filed by appellants, to read that single count as including both a premises liability claim and a general negligence claim. It also violates applicable rules of procedure requiring that separate causes of action be pleaded separately. (Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235.)
Furthermore, it appears that even appellants did not consider the fifth cause of action to include anything other than a premises liability claim. Respondent’s “Separate Statement of Undisputed Material Facts” filed with its motion for summary judgment characterized the claim against it as follows: “Plaintiff sued defendant as an alleged ‘premises owner/contractor.’ ”
While confirming the premises liability nature of their claim against respondent, in their response, appellants clarified that they also pleaded a claim for loss of consortium: “1. Disputed. Plaintiffs allege causes of action for Premises Owner/Contractor Liability and Loss of Consortium against [respondent].” Moreover, the first sentence of appellants’ “Statement of the Facts” section of their memorandum in opposition to the motion for summary judgment asserts, “Plaintiffs allege causes of action for Premises Owner/Contractor Liability and Loss of Consortium against [respondent].”
Therefore, we reject appellants’ argument that the complaint upon which respondent’s motion for summary judgment was based asserted a cause of action against respondent for general negligence, or any substantive claim other than premises liability. Instead, it was at the hearing on the motion for summary judgment on February 9 that appellants’ counsel attempted to construe the complaint as alleging a separate cause of action for general negligence. When that argument understandably failed, appellants sought leave to amend their complaint against respondent to add a general negligence cause of action, which was denied by the trial court. We turn, then, to appellants’ alternative argument on appeal that the trial court abused its discretion in denying them leave to amend.
B.
The Trial Court Did Not Abuse Its Discretion in Denying Leave to Amend
The parties agree that the standard of review of an order denying leave to amend a complaint is whether the trial court abused its discretion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612; Record v. Reason (1999) 73 Cal.App.4th 472, 486.)
“The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. [Citation.] A trial court’s exercise of discretion is ‘subject to the limitations of the legal principles governing the subject of its action, and subject to reversal on appeal where no reasonable basis for the action is shown.’ [Citation.]” (Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 108.) “ ‘It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
“It follows that a reviewing court must examine the trial court’s stated reasons for an exercise of discretion to determine whether those reasons reflect a correct understanding of the relevant legal standards and principles. (See, e.g., Linder v. Thrifty Oil Co. [2000] 23 Cal.4th 429.)” (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1105.)
Furthermore, judicial discretion concerning whether to allow amendments to pleadings is tempered by a policy of liberality that favors such amendments. (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Motions to amend pleadings may be made at any time, including during trial. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124.) In fact, it is an abuse of discretion to deny a timely motion to amend a pleading thereby depriving the moving party of a meritorious cause of action or defense, unless prejudice to the opposing party is shown. (Mabie v. Hyatt, supra, 61 Cal.App.4th at p. 596.)
We conclude that appellants’ postjudgment motion was to amend their complaint under Code of Civil Procedure section 473, subdivision (a)(1), and not to conform the pleadings to proof at trial. This latter mechanism is generally reserved for where the evidence presented at trial is outside the issues framed by the original pleadings. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 6:685, p. 6-172 (rev. # 1 2007).) Instead, here, the evidence conformed precisely to the complaint’s allegations; appellants simply wanted to use these facts to allege an alternative legal basis for recovery. In any case, no one has suggested that the discretionary standard applicable to both forms of amendment is materially different or affects the standard of review on appeal. (See City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.)
As noted, an oral motion for leave to amend to plead general negligence against respondent was made at the hearing on respondent’s motion for summary judgment, a scant 11 days before trial was to commence. The court denied the motion finding that respondent had relied on the pleading solely alleging premises liability, and therefore it would be prejudiced by the amendment which changed the theory of the case against it. Similarly, when it denied appellants’ subsequent combined motions for leave to amend to “conform to proof,” and for new trial or for reconsideration, the court reiterated that allowing the amendment would prejudice respondent. Discovery was closed, and respondent prepared its defense and conducted its discovery based solely on the premise liability claim pleaded.
On the other side of the ledger, the court noted that appellants had “months” during which they could have sought the amendment. Moreover, it was appellants who understandably sought trial preference and refused to agree to any trial continuances because of Ms. Drinkwater’s medical condition, resulting in the compression of the discovery and trial preparation time frames.
For their part, when making their oral motion for leave to amend, appellants failed to even mention respondent’s claim that it would be prejudiced if the request were granted. In its postjudgment combined motion papers, appellants did argue that respondent would not be prejudiced by allowing the amendment because appellants “provided evidence supporting their negligence claim through extensive discovery responses and deposition testimony, so allowing the amendment would not deprive [respondent] an opportunity to obtain evidence through discovery.” Appellants also argued that it was apparent from respondent’s motion for summary judgment that it had “notice of the nature of [appellants’] claims.”
Initially we note the observation of the trial judge at the hearing of the combined motions in March that the case was already in the midst of trial, having begun on February 20. To allow appellants to proceed in the manner desired would have thrust respondent, in the middle of a jury trial, into the position of defending against a theory for which it was not prepared. “The trial court has a wide discretion . . . where the purpose of the amendment is to raise new issues after the pleadings have been settled and the trial has commenced. [Citation.]” (Feykert v. Hardy (1963) 213 Cal.App.2d 67, 75.) A trial court does not abuse its discretion when it denies leave to amend based on the plaintiff's unexplained delay in requesting leave. (City of Stanton v. Cox, supra, 207 Cal.App.3d at p. 1564 [“A party who waits 18 months before attempting to amend, and then does so only after trial has commenced, and who offers no excuse for the failure, can hardly complain when the request to amend is denied”].)
Similarly, an amendment to conform to proof during trial would not have been appropriate, especially in light of appellants’ failure to amend the complaint before trial. (See Trafton v. Youngblood (1968) 69 Cal.2d 17, 31 [“ ‘[A]mendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend. [Citations.]’ [Citations.]”].)
As importantly, appellants misconstrue the nature of the prejudice to respondent which would result from the amendment. Even accepting appellants’ argument that respondent was aware of the facts supporting a general negligence claim (Ms. Drinkwater’s exposure to asbestos dust on her father’s work clothes during his tenure employed by respondent), the theory of liability asserted was only for premises liability. As respondent’s counsel pointed out at the hearing on the motion for summary judgment, respondent’s effort during the truncated discovery period was focused on marshalling the evidence needed to test the elements of a property-based premises liability claim. Nor did appellants explain their failure to seek the amendment earlier, when it was obvious that their complaint against respondent did not include a claim of general negligence.
Because this fact is obvious, we reject any assertion that appellants failed to seek leave to amend reasonably believing a general negligence claim had already been pleaded. Also belying such an inference is appellants’ written opposition to the motion for summary judgment making abundantly clear that it was bringing a premises liability claim against respondent.
In light of the foregoing, we conclude that there was no abuse of discretion in denying appellants’ several alternative requests for leave to amend their complaint, or in denying their motion for new trial.
In light of our conclusion, we need not address respondent’s other grounds for seeking summary judgment, including the applicability of the Texas and Kansas statutes of repose.
IV.
Disposition
Judgment for respondent is affirmed. Respondent is awarded its costs on appeal.
We concur: Reardon, J., Sepulveda, J.