Opinion
B313264
04-27-2023
JOSEPH Y. HAN, Plaintiff and Appellant, v. RESTAURANT DEPOT, LLC, Defendant and Respondent.
Koletsky, Mancini, Feldman & Morrow, Andrew M. Morrow and Kristyn J. Mintesnot for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Amy Arseneaux Evenstad for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV17430 Thomas D. Long, Judge. Affirmed.
Koletsky, Mancini, Feldman & Morrow, Andrew M. Morrow and Kristyn J. Mintesnot for Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber and Amy Arseneaux Evenstad for Defendant and Respondent.
MOOR, J.
This appeal follows the trial court's grant of summary judgment in favor of Restaurant Depot, LLC (Restaurant Depot) regarding a slip-and-fall action brought by Joseph Y. Han (Han) after Han tripped over a pallet in Restaurant Depot's restaurant supply store. On appeal, Han's sole contention is that the trial court abused its discretion by denying his oral request to amend the complaint, which counsel made at the hearing on the motion for summary judgment. Counsel proposed to allege facts conforming to the evidence that would raise a triable issue of fact regarding Restaurant Depot's duty to remedy the danger posed by the pallet.
We affirm the trial court's order.
FACTS AND PROCEDURAL HISTORY
Complaint
Han filed the operative first amended complaint (FAC) against Restaurant Depot on June 11, 2019. The FAC alleged general negligence and premises liability and sought compensatory damages for wage loss, hospital and medical expenses, general damage, and loss of earning capacity, and set forth the following facts:
"On April 22, 2019, Plaintiff Joseph Y. Han was at the Restaurant Depot, located at 1611 E. Washington Blvd., Los Angeles, CA 90021, where his injuries occurred. While Plaintiff was shopping, his cart caught the edge of a pallet sticking out in one of the [a]isles which caused the cart to abruptly stop and twist[,] causing the Plaintiff to violently fall causing sever[e] injury to his person. Such injuries caused Plaintiff to seek medical attention to his person suffering general and special damages according to proof."
Motion for Summary Judgment
On December 22, 2020, Restaurant Depot concurrently filed a motion for summary judgment, separate statement of undisputed facts in support of the motion for summary judgment, and a notice of lodging of a video recording depicting the incident. The motion included excepts of Han's testimony from his October 2020 deposition. The motion emphasized that Han's deposition testimony was initially inconsistent with the video. Han first testified that the cart he used was unbalanced, and he fell when its right front wheel hit the corner of a pallet causing it to swing to the right. However, when he was shown a video of the incident, he acknowledged that the video was accurate. The video depicts Han walking around the pallet without incident. Several seconds later, he takes some gloves from a shelf or pole at the top of the pallet and trips over the corner of the pallet as he walks away. After viewing the video, Han testified that he parked his cart and walked around the pallet toward some gloves that were hanging on a shelf or on a pole above the pallet. He looked around at some meat he wished to purchase. Han then grabbed a pair of gloves to handle the meat and tripped over the corner of the pallet as he was walking away. When asked if he saw anything dangerous on the ground that might have been a hazard to him, Han answered, "I didn't pay any attention." Han also testified "[n]o" in response to the question whether there was anything blocking his view of the corner of the pallet.
Restaurant Depot argued that Han's action lacked merit because he could not meet his burden of showing: (1) a dangerous condition existed on Restaurant Depot's premises; (2) Restaurant Depot had a duty to repair, protect against, or warn of the alleged condition; (3) Restaurant Depot had sufficient notice of a dangerous condition in time to be able to repair the condition, protect against it, and/or warn against it; (4) Restaurant Depot breached a duty; or (5) the allegedly dangerous condition caused Han's injury. In the alternative, Restaurant Depot sought summary adjudication of any and all of the aforementioned issues that were established as a matter of law.
On February 25, 2021, Han filed an opposition to the motion for summary judgment arguing that: (1) there was a dangerous condition present in Restaurant Depot's store, i.e. the pallet; (2) Restaurant Depot created the dangerous condition; (3) Restaurant Depot had a duty to protect from the dangerous condition; (4) Restaurant Depot failed to exercise reasonable care over the area where the incident occurred; (5) Restaurant Depot had actual or constructive knowledge of the dangerous condition; and (6) the dangerous condition caused Han's injuries. Han concurrently filed a separate statement of facts and evidence in opposition, including portions of his deposition testimony, photographs of the scene, and portions of Restaurant Depot's responses to special interrogatories and requests for admissions, and the declaration of Dr. Bradley Chase.
Restaurant Depot's reply to the opposition was filed on March 5, 2021.
Hearing on the Motion for Summary Judgment
At the hearing on the motion for summary judgment on March 11, 2021, Han's counsel acknowledged that the facts as set forth in the FAC deviated from both the video of the incident and Han's testimony at his deposition. Counsel requested leave to amend the complaint to "the extent the pleading[s] do not conform to [the] evidentiary matters before the court." Specifically, counsel proposed to include the facts that "the pallet [was] obvious, . . . only partially filled with merchandise, . . . a similar color to the floor, . . . in proximity to the shelves that by design are intended to draw the eyes of the shopper to the product for sale, and . . . [Han was] distract[ed] from his pathway as he grabbed the glove." Counsel suggested that the amendments would allege defects in the pallet and its surrounds that would raise a question of fact regarding Restaurant Depot's duty to remedy the danger even if it had no duty to warn because the danger was obvious. The court heard further argument from both parties and then adopted its tentative ruling granting the motion for summary judgment without further comment on Han's request to amend the FAC.
The Trial Court's Ruling
The trial court issued its ruling in a written minute order the same day. The court stated that the video, which Han admitted was accurate, depicted Han grabbing a pair of gloves from the pallet, and then hitting his right foot on the pallet as began to walk away, causing him to trip and fall. Han walked around the same pallet only seconds earlier without incident. He was not pushing a cart and a cart was not visible in the video.
The court ruled that Restaurant Depot met its moving burden: Restaurant Depot alleged that Han did not see anything hazardous on the ground before he fell, and nothing blocked his view of the corner of the pallet. There was no dangerous condition on the premises; Han simply failed to pay attention. Han did not provide evidence of similar incidents, evidence that Restaurant Depot should have known of a dangerous condition, or that Restaurant Depot was negligent. The burden had therefore shifted to Han to raise a triable issue of fact.
The court ruled Han's complaint was deficient because he did not allege that the pallet edge was hidden from "plain eye level view" or that nearby product shelving created a dangerous condition by diverting the customer's eye. The complaint alleged only that the pallet caused Han to trip and fall-not that it was a dangerous condition. Han also failed to submit any admissible evidence that he momentarily forgot that he had just walked past the pallet because of some distraction. Han's speculation and conjecture were insufficient to defeat summary judgment.
The court also concluded, from both the above evidence and its own review of the video and photographs of the incident, that the pallet was open and obvious. The court reiterated that Han neglected to submit evidence that he was distracted or forgot he had just walked around the pallet. Regardless, the present case differed factually from Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, the case upon which Han heavily relied. There, the plaintiff's job duties required that he expose himself to a dangerous condition on the defendant's property-he had to walk across rubble consisting of dirt mixed with broken concrete while carrying a heavy hose in order to load his truck. The Osborn court held that although the danger was apparent and obviated the duty to warn, the defendant was not relieved of the duty to remedy the condition because necessity required the plaintiff to encounter the danger. The court found that Han failed to allege that Restaurant Depot breached the duty to remedy the condition or even argued that the pallet needed to be repaired. Moreover, Han did not allege that he was required to encounter the condition.
DISCUSSION
Han argues that the trial court abused its discretion by refusing his request to amend the complaint to add the facts presented at the hearing and thereby allege that Restaurant Depot had a duty to remedy a dangerous condition, even if that condition was open and obvious. The trial court did not abuse its discretion.
A trial court has wide discretion, "in furtherance of justice" to "allow a party to amend any pleading." (Code Civ. Proc., § 473, subd. (a)(1); see Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 (Falcon).) We accordingly review a trial court's denial of a request to amend for an abuse of that discretion. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175 (Melican).)
Although a trial court's discretion to grant leave to amend exists up to and even during a trial (Melican, supra, 151 Cal.App.4th at p. 175; Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965), courts will not exercise that discretion if amendment would prejudice the other side (Honig, at p. 965). This is why courts consistently hold that a trial court does not abuse its discretion in denying a request for leave to amend made for the first time at the hearing on a motion for summary judgment. (See, e.g., 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18; Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 508; Liebert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; cf. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565 [allowing more liberality of amendment upon grant of motion for judgment on pleadings].) Because a motion for summary judgment is tied to the operative pleading, to allow a party to change the pleading at the 11th hour is to" 'mov[e] [the] target'" and to prejudice the party moving for summary judgment by rendering its prior motion a complete waste of time. (Falcon, supra, 224 Cal.App.4th at p. 1280.) This is particularly so where, as here, the party seeking leave to amend has proffered no valid excuse for waiting until the hearing itself to so request. (Falcon, at p. 1280; Melican, at pp. 175-176; Leader v. Health Industries of America (2001) 89 Cal.App.4th 603, 613; but see Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1069 , fn. 7 [amendment permitted as to issues "already raised by the pleadings" on file].)
Han attempts to avoid the implications of this precedent by arguing that if, when deciding a motion for summary judgment, the court determines the complaint is insufficient as a matter of law, it may decide to treat the motion for summary judgment as a motion for judgment on the pleadings and grant him leave to file an amended complaint. (See, e.g., Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376 (Prue).) What Han fails to acknowledge is that the motion for summary judgment was not the equivalent of a motion for judgment on the pleadings-both the allegations and the facts set forth in the complaint were deficient. The FAC alleged that Han's cart struck the corner of the pallet because the cart was unbalanced-i.e. Restaurant Depot failed to maintain the cart in proper working order. As the video depicts quite plainly, Han was not pushing a cart when the incident occurred.
Counsel averred that he was unaware of the basis for the court's ruling until the tentative ruling had been issued and could not have requested leave to amend because he was unaware of the deficiencies in the FAC. It is always the case that the parties will not know the basis of the trial court's decision prior to the issuance of a tentative ruling; this is not a ground for granting leave to amend. Counsel was aware of the video of the incident, which was played for Han at his deposition on October 6, 2020, five months before the March 11, 2021 hearing and over two months before Restaurant Depot filed its motion for summary judgment on December 22, 2020, and over four months before Han filed his opposition to the motion. He was also aware that the facts alleged in the FAC differed in important respects from the video evidence, which Han agreed was accurate in his deposition testimony. The video depicted all of the facts that counsel proposed to include in the amended pleadings-that the pallet was obvious, only partly loaded with merchandise, similar to the floor in color, in proximity to other shelves that could draw Han's attention, and that Han was distracted. Han did not seek leave to amend the complaint to include an accurate description of the events, let alone to include additional facts to support the allegations in the complaint, in the five months between viewing the video and appearing at the hearing.
Moreover, amendment is permitted where the defect is curable. (Prue, supra, 242 Cal.App.4th at p. 1384.) That is not the case here. The cases that Han cites to support his argument that Restaurant Depot had a duty to remedy the allegedly dangerous condition involve obstacles that were both apparent and either impossible or difficult to avoid. In Osborn v. Mission Ready Mix, supra, 224 Cal.App.3d 104, the plaintiff had to walk over dangerous terrain carrying a heavy object to perform his job duties. In Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, the plaintiff had to walk through water that created a dangerous condition in order to traverse the sidewalk. The Martinez court noted that "the pavement appears to have provided a principal if not sole access way from the street to defendant's building, which housed a government office serving the public." (Id. at p. 1185.) Han does not propose to include the allegation that he was forced to encounter the pallet or any facts that would support that allegation. Indeed, there is no evidence that such a necessity existed here. It is clear from the trial court's ruling that Han could not allege supporting facts, given the video evidence. The video shows that the aisle was wide and unobstructed, and that Han walked around the pallet unimpeded approximately 10 seconds before he walked past it a second time and tripped. Han did not have to risk walking into the pallet in order to shop at the store. The defect in the FAC cannot be cured as he suggests. The trial court did not abuse its discretion by awarding summary judgment without permitting Han to amend the complaint.
DISPOSITION
We affirm the judgment. Restaurant Depot is awarded its costs on appeal.
We concur: BAKER, Acting P. J., KIM, J.