Opinion
B316311
08-14-2023
JOSEPH DU, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
Joseph Du, in pro. per., for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Babak Shirdel for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 19STCV28778, Michael E. Whitaker, Judge. Affirmed.
Joseph Du, in pro. per., for Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber and Babak Shirdel for Defendant and Respondent.
WILEY, J.
Joseph Du sued the Regents of the University of California after falling in a UCLA parking garage. He argues summary judgment for the Regents was improper because a triable issue of material fact exists regarding notice. We affirm. Du offered only speculation and inconsequential facts to overcome the Regents' proof it lacked constructive notice of a dangerous condition.
We independently decide the propriety of summary judgment and apply the familiar standard. (See Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal.App.5th 126, 132.) Unconstrained by the trial court's reasoning, we conclude summary judgment was appropriate.
Du sued the Regents for negligence and premises liability. His complaint asserts he slipped on a "liquid substance" in a parking structure and sustained severe and permanent injuries.
Du abandoned his negligence claim on appeal, as well as any challenge regarding his belated request to amend his pleadings.
As for his other cause of action, Government Code section 835 provides for public entity liability for injuries caused by a dangerous condition of public property. When the entity did not create the dangerous condition, the statute requires that the entity have had actual or constructive notice of the condition in time to protect against it. (Gov. Code, § 835.)
Du maintains his lawsuit should proceed based on constructive notice. "A public entity had constructive notice of a dangerous condition . . . 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." (Gov. Code, § 835.2, subd. (b).) The statute goes on to describe evidence related to "due care." (Ibid.)
We may decide this issue of notice as a matter of law. (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 315, 317 (Heskel).)
The Regents' evidence negated the element of constructive notice-in particular, the threshold requirements of an obvious, dangerous condition existing for a sufficient period of time. (Heskel, supra, 227 Cal.App.4th at p. 320; see also State of Cal. v. Super. Ct. (1968) 263 Cal.App.2d 396, 400.) The Regents established it had retained a company (OilAway) to inspect and clean this parking lot and others on campus twice daily. A company employee, Jose Curiel, testified he inspected the area where Du slipped around 6:15 in the morning and found it to be clean. This was 30 minutes before the incident. Curiel testified there were no cars parked in this area at the time of his inspection. He confirmed he "would have actually literally walked right over the area of the incident as [he was] doing [his] inspections down the line at the area of the incident." After the incident, Curiel returned to the spot and cleaned a spill of antifreeze.
Du concedes the Regents' presentation shifted the burden to him to show the existence of a triable issue of material fact. (See Code Civ. Proc., § 437c, subds. (c) &(p)(2); Heskel, supra, 227 Cal.App.4th at pp. 319 &321.) He maintains there is a triable issue as to whether the inspection actually occurred and whether any inspection was reasonably adequate to satisfy the duty of care under the statute. In support, he notes: OilAway did not interview its employee until 18 months after the incident; Curiel admitted his practice was to go around cars during inspections and not look under them; Curiel arrived at the scene more than an hour after the incident; and the Regents offered no work logs or photographs to corroborate Curiel's testimony.
None of this creates a triable issue of material fact regarding constructive notice. None creates a conflict in the evidence signaling the Regents had a reasonable opportunity to find and clean up the slippery substance.
The fact OilAway interviewed its employee more than a year after the incident is no reason to disregard Curiel's testimony. (See Code Civ. Proc., § 437c, subd. (e) [summary judgment "shall not be denied on grounds of credibility"]; accord Richards v. Dept. of Alcoholic Beverages Control (2006) 139 Cal.App.4th 304, 319.)
Curiel testified there was no car in the spot when he inspected the area, so his general practice when cars are involved is irrelevant. Du offered no evidence a parked car was present during the inspection. (See Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166 [only a conflict of evidence-and not speculation, conjecture, conclusory assertions, or mere possibilities-creates an issue of fact].)
The record contradicts Du's suggestion Curiel visited the parking structure only after the accident. Curiel's testimony regarding his pre-incident inspection was unequivocal, and it provided a sufficient basis for summary judgment. Corroborating evidence was unnecessary.
Du faults his trial counsel for failing to develop facts regarding the adequacy of the inspection. Du is suing his lawyer for malpractice. This suit does not create a triable issue.
In opposing the summary judgment motion, Du offered his testimony that he slipped on a dry, crusty, old oil stain that felt like dirt or gravel, as well as his son's declaration offering a similar description. The trial court properly disregarded this testimony. It contradicted Du's pleadings and discovery responses, both of which described what was on the floor as a "liquid substance." (See, e.g., Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 ["Because an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial"]; id. at p. 1272 ["An admission in a pleading is conclusive on the pleader"]; St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 313 [the pleadings delimit the issues considered for summary judgment motions; plaintiffs cannot raise new, unpleaded issues in opposing papers].)
Du incorrectly claims the issue of constructive notice was not part of the Regents' separate statement. Lack of notice was one of five issues listed in the statement. Further, the Regents' memorandum supporting its motion clearly and repeatedly argued the evidence showed it lacked both actual and constructive notice of a dangerous condition.
Du's reply brief asks us to take judicial notice of facts regarding antifreeze. This request is improper. (See Cal. Rules of Court, rule 8.252 [outlining procedure for requesting judicial notice by reviewing courts].)
Du notes Kotronakis v. City &County of San Francisco (1961) 192 Cal.App.2d 624 was decided before Government Code section 835.2 took effect. We agree and do not rely on this case.
Du cites no law or requirement for a government entity to inspect its parking lots for potential slip hazards every 30 minutes-or more frequently-and we decline to adopt such a requirement.
The Regents established its entitlement to judgment as a matter of law on Du's Government Code claim. Given Du's concessions regarding other aspects of his case, summary judgment was proper.
DISPOSITION
We affirm the judgment and award costs to the Regents.
We concur: STRATTON, P. J., GRIMES, J.