Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. BC372868, Ralph W. Dau, Judge.
Law Offices of Liza Rita Nalio and Liza Rita Nalio for Plaintiff and Appellant.
Christensen Ehret, Edward E. Sipes and Scott J. Sterling for Defendants and Respondents.
KLEIN, P. J.
Plaintiff and appellant Kamand Enterprises (Kamand), a corporation, appeals judgments following grants of summary judgment in favor of defendants and respondents County of Los Angeles (the County), The Wesco Companies, Inc. (Wesco), Colich Construction L.P. (Colich), and Baker Corp. (Baker).
In this negligence action arising out of water damage to Kamand’s premises, the trial court granted summary judgment in favor of the County on the ground Kamand failed to present a government claim to the County prior to filing suit. (Gov. Code, §§ 910, 945.4.) As to the remaining defendants, the trial court granted summary judgment based on their showing that Kamand lacks evidence to establish the flooding was caused by their actions. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)
We perceive no error in the trial court’s rulings and affirm the judgments in their entirety.
FACTUAL AND PROCEDURAL BACKGROUND
1. Parties/overview.
Kamand operated Mayfair Gallery, an antique shop at 8401 Melrose Place in Los Angeles. During the night of September 9, 2006 or the early morning hours of September 10, 2006, Kamand’s premises allegedly sustained water damage as a consequence of a ruptured water main, which water main was the property of the City of Los Angeles.
Mayfair Gallery was adjacent to a storm drain construction project. Colich contracted with the County to work on the project. Colich rented equipment from Wesco and Baker for use on the project.
In conjunction with the project, two Baker Tanks were placed on Orlando Avenue, approximately 45 feet north of Melrose Avenue. A municipal water line ruptured about 75 feet north of the Baker Tanks.
At the time the pipe ruptured, there was no tunneling, boring or excavation in progress and only a security guard employed by Wesco was present at the job site.
2. Pleadings.
On November 13, 2007, Kamand, a corporation doing business as Mayfair Gallery, filed the operative first amended complaint, naming as defendants the County, Wesco, Colich and Baker.
Kamand also sued the City of Los Angeles and others, not parties to this appeal.
In its sole cause of action, common law negligence, Kamand pled “defendants and each of them negligently... caused the underground water line at the subject location to be severed and/or damaged.”
The County, Colich, Wesco and Baker all denied the allegations and asserted various affirmative defenses. Extensive discovery followed.
3. Motions for summary judgment.
On March 28, 2008, the County, Colich, Wesco and Baker filed motions for summary judgment.
The County sought summary judgment on the grounds that Kamand’s sole cause of action for negligence had no merit because Kamand never filed a tort claim with the County (Gov. Code, § 945.4), and moreover, Government Code section 815 abolished public entity liability for common law torts.
Colich, Wesco and Baker moved for summary judgment on the ground that Kamand’s factually devoid discovery responses revealed that Kamand had no evidence that any act or omission of any defendant caused Kamand to incur damages.
4. Trial court’s rulings.
On June 12, 2008, the motions came on for hearing. The trial court granted summary judgment on the grounds set forth in the moving papers.
The trial court ruled Kamand “failed to comply with the claim presentation requirement” so as to entitle the County to summary judgment. Although a tort claim was filed by an individual by the name of Mehdad Khosbien, that claim was not filed by or on behalf of Kamand, a corporate entity.
With respect to Colich, Wesco and Baker, the trial court granted summary judgment due to Kamand’s factually devoid discovery responses. The trial court noted that when asked to specify all facts upon which Kamand based its negligence claim against Colich and Wesco, Kamand responded, “Defendant was at the job site... when the incident occurred.” The trial court observed, “That a party was present at a job site when the pipe broke does not establish the party’s responsibility for the incident.”
The trial court further found that with respect to the cause of action against Baker, Kamand was unable to specify any facts whatsoever.
The trial court rejected Kamand’s contention the doctrine of res ipsa loquitur is applicable to this case, and in view of Kamand’s factually devoid discovery responses, Colich, Wesco and Baker were entitled to summary judgment.
Thereafter, the trial court granted a motion by the County for reasonable attorney fees in the sum of $7,972 based on Kamand’s refusal to admit it had failed to file a tort claim with the County. (Code Civ. Proc., § 2033.420.) The trial court also awarded costs to Colich, Wesco and Baker, including $1,599.27 in deposition transcription costs.
On October 14, 2008, Kamand filed a timely notice of appeal from the judgments entered in favor of the County, Wesco, Colich and Baker.
CONTENTIONS
Kamand contends: (1) the trial court erred in granting the County’s motion for summary judgment because the purpose of the claims statute was satisfied; (2) the trial court erred in granting summary judgment for Wesco, Colich and Baker because: Kamand’s responses to discovery were not “factually devoid;” there was no showing by defendants that Kamand cannot establish the element of causation; the trial court erred in refusing to apply the doctrine of res ipsa loquitur; the trial court erred in sustaining defendants’ objection to the City’s incident report; and the trial court erred in denying Kamand’s request for a continuance of the summary judgment motion; (3) the trial court erred in granting the County’s motion for reasonable expenses and attorney fees; and (4) the trial court abused its discretion in the amount of attorney fees and costs that were awarded to the various defendants.
DISCUSSION
1. Standard of appellate review.
Summary judgment “motions are to expedite litigation and eliminate needless trials. [Citation.] They are 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.’ [Citations.]” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)
A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., §437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, italics added.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Id. at p. 849; Code Civ. Proc., §437c, subd. (p)(2).)
We review the trial court’s ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)
2. Trial court properly granted summary judgment in favor of the County based on Kamand’s noncompliance with the claims statute.
a. Procedural history.
On or about September 21, 2006, an individual by the name of Mehdad Khosbien filed a claim with the County seeking damages in excess of $200,000 for “damage to store and property” caused by a “water pipe busted on the street adjacent to store located at 8401 Melrose.”
After the claim was denied, Khosbien commenced this action by filing the original complaint for general negligence against the various defendants, seeking to recover for water damage to Mayfair Gallery, an antique store at 8401 Melrose Place.
Wesco and Colich demurred, alleging Khosbien lacked standing to sue because Mayfair Gallery is owned by Kamand Enterprises, LLC.
The trial court sustained the demurrer with leave to amend. The subsequent first amended complaint identified the sole plaintiff as “Kamand Enterprises, a Corporation dba Mayfair Gallery.”
The County moved for summary judgment on the grounds that Kamand’s single cause of action against the County for negligence had no merit because Kamand never filed a claim with the County pursuant to Government Code section 945.4, and in any event, Government Code section 815, subdivision (a), abolished public entity liability for common law torts.
As indicated, the trial court granted summary judgment in favor of the County on the ground Kamand failed to comply with the claim presentation requirement.
b. Kamand’s noncompliance with claims statute entitled the County to summary judgment.
Government Code section 945.4 states in relevant part: “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board....”
Here, the record establishes that Kamand, a corporation, never presented a claim to the County prior to filing suit.
Nonetheless, Kamand contends the trial court erred in granting summary judgment for the County because the purpose of the claims statute was satisfied by Khosbien’s presentation of a claim to the County. The contention fails. “Where two or more persons suffer separate and distinct injuries from the same act or omission, each person must submit a claim, and one cannot rely on a claim presented by another.” (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 796.)
Further, the purpose of the claims statute is to provide the public entity with sufficient information to enable it to adequately investigate claims and settle them, if appropriate, without the expense of litigation. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.) Because Khosbien, an individual, lacked standing to present a claim on behalf of Mayfair Gallery, the claim was patently meritless and readily could be rejected by the County without further investigation or attempt at settlement. Therefore, Khosbien’s claim cannot be said to have satisfied the purpose of the claims statute.
c. Even if Kamand had perfected a government tort claim prior to filing suit, the County would be entitled to summary judgment because it is not liable for common law negligence.
Even if Kamand had perfected a government claim prior to filing suit, the result would be the same. Government Code “section 815 abolishes common law tort liability for public entities.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [held, Gov. Code, § 815 bars Tameny action against public entity for wrongful termination in violation of public policy]; accord Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 329 [same].) Due to the elimination of common law tort liability for public entities, Kamand could not maintain a cause of action against the County for common law negligence.
As explained in Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457-1458, in California, all government tort liability must be based on statute. One of the essential elements that must be pled is the existence of a specific statutory duty. Since the duty of a governmental agency can only be created by statute or enactment, the statute or enactment claimed to establish the duty must at the very least be identified. Therefore, a litigant seeking to plead the breach of a mandatory duty “ ‘ “must specifically allege the applicable statute or regulation.” ’ ” (Id. at p. 1458.)
In its reply brief, in an attempt to overcome its failure to file a government tort claim, Kamand seeks to characterize its complaint as a constitutional action for inverse condemnation for damages resulting from the exercise of governmental power, rather than a tort action sounding in negligence. However, a summary judgment motion is directed to the issues framed by the pleadings. Those are the only issues a motion for summary judgment must address, and a party cannot successfully resist summary judgment on a theory not pleaded. (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387.) Because Kamand did not plead a cause of action for inverse condemnation, its constitutional argument is not properly before this court.
For all these reasons, the trial court properly granted summary judgment in favor of the County.
3. Trial court properly granted summary judgment in favor of Wesco, Colich and Baker.
a. No abuse of discretion in denial of Kamand’s request for a continuance.
As a preliminary matter, we address Kamand’s contention the trial court erred in denying its request for a continuance of the hearing on the motion for summary judgment.
(1) General principles.
Code of Civil Procedure section 437c states in relevant part at subdivision (h): “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”
A declaration “in support of a request for continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation.] ‘ “The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]” ’ [Citation.] ‘It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show “facts essential to justify opposition may exist.” ’ [Citation.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254, italics added.)
We review the trial court’s denial of Kamand’s request for a continuance for an abuse of discretion. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633; Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.)
(2) Inadequate showing by Kamand supports trial court’s denial of continuance.
Kamand’s request for a continuance was based on the following language in paragraph 24 of the declaration of its attorney in its opposition papers: “If this Court is inclined to grant Defendants’ Summary Judgment Motion or Summary Adjudication, this declarant respectfully requests this Court for a continuance of the hearing so that plaintiff will have an opportunity to complete discovery. At the time of filing this opposition, defendants have not served responses to outstanding written discovery. In fact defendants have requested an extension of time to respond. Further, the depositions of defendants’ former employees had to be cancelled since a subpoena must be served to compel their attendance. Defendants recently served a Notice of Objection on the grounds that the witnesses are no longer defendants’ employees.”
Thus, Kamand merely made a showing that discovery had not yet been completed. Kamand did not show the facts to be obtained were essential to opposing the motion and that there was reason to believe such facts may exist. On the record presented, we perceive no abuse of discretion in the trial court’s denial of a continuance to complete discovery.
b. Exclusion of evidence; no merit to claim of evidentiary error; trial court properly sustained hearsay objection to incident report.
To withstand summary judgment, Kamand relied heavily on a DWP incident report, dated August 3, 2007, pertaining to the September 10, 2006 incident. The report includes the following remark: “The water main broke because of weight of 2-Baker Tanks full of water over the water main. The Baker Tanks belong to the contractor doing storm drain work for the County Public Works.”
The trial court sustained defendants’ objections to the incident report on the grounds of lack of foundation and hearsay.
On appeal, Kamand contends the trial court’s ruling was error because the incident report constitutes a business record. The argument fails.
Evidence Code section 1271 states in relevant part: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Italics added.)
Here, the writing was not made at or near the time of the act – the incident report was written 11 months after the incident occurred. Therefore, Kamand’s contention the trial court abused its discretion in refusing to admit the incident report under the business record exception to hearsay is meritless.
We now turn to the merits of the summary judgment motion by Colich, Wesco and Baker.
c. Kamand’s factually devoid discovery responses entitled Wesco, Colich and Baker to summary judgment.
Colich and Wesco each asked Kamand to admit they did not cause the flooding of the Mayfair Gallery on September 10, 2006, and that they were not responsible to Kamand for the flooding.
Kamand denied those requests.
Colich and Wesco asked Kamand to state “all facts upon which you base your response.”
Kamand replied as follows: “Defendant was at the job site as the contractor for the City of Los Angeles/Department of Water & Power when the incident occurred.”
Thus, the sole facts relied on by Kamand in support of its negligence claims against Colich and Wesco were that they were present at the job site at the time of the incident. As the trial court ruled in granting summary judgment, “[t]hat a party was present at a job site when the pipe broke does not establish the party’s responsibility for the incident.”
With respect to Baker, Kamand’s showing was nil. In special interrogatories, Baker asked Kamand to describe “each act of commission or omission that you claim caused or contributed to the incident.” Kamand responded, “Plaintiff is unable to respond to this interrogatory at this time since the parties have just commenced discovery.”
Once the burden shifts from the moving defendant to the plaintiff “as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)
Here, Kamand failed to set forth facts showing the existence of a triable issue of material fact with respect to its negligence action against Wesco, Colich and Baker. Therefore, Wesco, Colich and Baker were entitled to summary judgment.
d. The doctrine of res ipsa loquitur is unavailing to Kamand.
In an attempt to overcome its inability to prove negligence, Kamand invokes the doctrine of res ipsa loquitur. However, as the trial court ruled, res ipsa loquitur is inapplicable to this case.
“The doctrine of res ipsa loquitur has three conditions: ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care.” (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489.)
Here, Kamand failed to show that a water main breaking “ordinarily does not occur in the absence of someone’s negligence....” (Ybarra v. Spangard, supra, 25 Cal.2d at p. 489.) Kamand simply assumes the water main ruptured due to the negligence of the various defendants, rather than due to a defect in the water main or ordinary wear and tear.
Kamand also failed to show the water main was within the “exclusive control” (Ybarra v. Spangard, supra, 25 Cal.2d at p. 489) of Wesco, Colich and Baker. Kamand merely showed the subject water main was the property of the City of Los Angeles, that the two water tanks situated near the water main were the property of Baker, and that Colich, Wesco and the County were involved in the project, which consisted of installing a storm drain near 8401 Melrose Place.
The involvement of Colich, Wesco and Baker in the County’s storm drain project does not equate with their exclusive control over the ruptured municipal water main.
Accordingly, Kamand failed to implicate the doctrine of res ipsa loquitur.
e. Conclusion as to Colich, Wesco and Baker.
In view of Kamand’s factually devoid discovery responses, the trial court properly granted summary judgment in favor of Colich, Wesco and Baker.
3. No abuse of discretion in trial court’s grant of County’s motion for reasonable attorney fees and expenses.
a. Trial court properly held the County was entitled to a statutory award of reasonable attorney fees.
Following the grant of summary judgment, the County filed a motion pursuant to Code of Civil Procedure section 2033.420 for reasonable attorney fees in the sum of $7,972, representing the sum it expended to prove that Kamand did not file a tort claim with the County.
Code of Civil Procedure section 2033.420 provides: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. [¶] (b) The court shall make this order unless it finds any of the following: [¶] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit.”
On August 12, 2008, the trial court granted the motion, ruling that Kamand failed to admit Requests for Admissions (RFA) Nos. 2 and 3 (asking Kamand to admit the claim Khosbien presented to the County was not filed by or on behalf of Kamand) and that the County subsequently proved the truth of those matters. The trial court ordered Kamand to pay the County the sum of $7,972, which constituted reasonable attorney fees expended in proving the truth of RFA Nos. 2 and 3.
We review the trial court’s ruling under Code of Civil Procedure section 2033.420 for an abuse of discretion. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1275-1276.)
Here, the County established on summary judgment that Kamand failed to present a tort claim to the County and that the claim filed by Khosbien, an individual, was not filed by or on behalf of Kamand, a corporate entity. We also note the claim which Khosbien filed with the City of Los Angeles with respect to this incident identified Khosbien as a “sole proprietor.” Therefore, Kamand’s assertion the claim Khosbien presented to the County was filed by Khosbien on behalf of Kamand was groundless.
Accordingly, the trial court acted within its discretion in granting the County’s motion for an award of attorney fees pursuant to Code of Civil Procedure section 2033.420.
b. No abuse of discretion in the amount of the award.
Kamand also challenges the $7,972 awarded to the County as excessive.
In our review, we are guided by the principle that the “amount of an attorney fee to be awarded is a matter within the sound discretion of the trial court. [Citation.] The trial court is the best judge of the value of professional services rendered in its court, and while its judgment is subject to our review, we will not disturb that determination unless we are convinced that it is clearly wrong. [Citations.] The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination.” (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
Here, the moving declaration of Attorney Scott Sterling stated: “7. To the best of my ability, all reasonable attorneys’ fees which did not relate to proving the fact asserted in [RFA] Nos. 1, 2 and 3, were excluded from the recovery sought by way of this motion. [¶] 8. At this time, to the best of my knowledge, in proving [RFA] Nos. 1, 2 and 3, County has incurred reasonable [attorney fees] in the amount of $7,972.00. The fees include 1.7 hours of partner time at the rate of $195.00 per hour and 41.3 hours of associate time at the rate of $185.00 per hour. [¶] 9. Tasks undertaken to prove the truth of [RFA] Nos. 1, 2, and 3 include preparation of the Motion for Summary Judgment or, alternatively, Summary Adjudication, and all related pleadings and reply pleadings in conjunction with the motion. Since the claim form attached to [RFA] Nos. 1, 2, and 3 was filed by Mehdad Khosbien, tasks involved in proving [RFA] Nos. 1, 2, and 3 also include attendance at the depositions of Mehrdad Khosbien and Ellen Motamedi, both of which depositions included questions regarding the relation of Mr. Mehdad Khosbien with plaintiff Kamand Enterprises; and preparation of a motion to compel further responses to County’s Request for Production of Documents, and related pleadings, and the related court appearance, which involved specific requests for production regarding Mr. Khosbien’s relationship with plaintiff Kamand Enterprises.”
Given this showing, we cannot conclude the trial court abused its discretion with respect to the amount awarded to the County.
4. No abuse of discretion in award of deposition costs to Colich, Wesco and Baker.
With respect to deposition costs, the trial court denied Kamand’s motion to strike or tax costs and awarded Colich, Wesco and Baker deposition costs in the amount of $1,599.27. We review the cost award for an abuse of discretion. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1556-1557.)
Code of Civil Procedure section 1033.5 states in relevant part at subdivision (c): “Any award of costs shall be subject to the following: [¶] (1) Costs are allowable if incurred, whether or not paid. [¶] (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. [¶] (3) Allowable costs shall be reasonable in amount.”
Kamand contends the deposition costs were not reasonably necessary to the conduct of the litigation because the depositions were conducted one week prior to the hearing on the summary judgment motion and the deposition transcripts were not used by any of the defendants in support of the motion for summary judgment. The argument fails. Defendants properly did not assume the summary judgment motion would be granted and they continued to pursue discovery in order to prepare for trial. Therefore, the trial court properly determined the deposition costs were reasonably necessary to the conduct of litigation.
Kamand also contends Colich, Wesco and Baker were not entitled to recover the costs for transcription of the entire deposition where parts of the deposition allegedly were used by the County for its defense. However, the County’s motion did not seek recovery of the transcription costs. Further, Kamand cites no authority for the proposition that joint defendants cannot recover costs for discovery used to further the goals of all the defendants.
In sum, we perceive no abuse of discretion in the trial court’s award to Wesco, Colich and Baker of deposition costs of $1,599.27.
DISPOSITION
The judgments in favor of the County, Wesco, Colich and Baker, are affirmed. Respondents shall recover their costs on appeal.
We concur: CROSKEY, J. ALDRICH, J.
Here, Kamand’s operative first amended complaint, against the County and others, pled nothing more than common law negligence.