Opinion
F073292
12-04-2017
MARTHA RIJOS, Plaintiff and Appellant, v. COUNTY OF KERN, Defendant and Respondent.
Law Offices of John J. Jackman and John J. Jackman for Plaintiff and Appellant. Mark L. Nations, County Counsel, Judith M. Denny and Marshall Fontes, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-282347)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Law Offices of John J. Jackman and John J. Jackman for Plaintiff and Appellant. Mark L. Nations, County Counsel, Judith M. Denny and Marshall Fontes, Deputy County Counsel, for Defendant and Respondent.
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Plaintiff Martha Rijos appeals the grant of summary judgment in favor of defendant County of Kern. Rijos alleged (1) a water spill at the Kern River Valley Senior Center caused her to slip and fall, (2) the water spill constituted a dangerous condition for purposes of Government Code section 835, and (3) County had actual or constructive notice of the spill under the notice provisions of section 835.2.
All unlabeled statutory references are to the Government Code.
The sections of the Government Code relevant to this appeal address a public entity's liability for dangerous conditions existing on public property. Those sections are contained in a division of the Government Code that "may be referred to as the Government Claims Act." (§ 810, subd. (b).)
County moved for summary judgment on the ground Rijos could not establish County had actual or constructive notice of the alleged dangerous condition. First, County addressed actual notice by arguing there was no evidence showing a County employee actually knew of the water spill. Second, County addressed the two elements of constructive notice by arguing the evidence did not show how long the spill had existed and did not show the spill was obvious. The trial court agreed with County's evaluation of the evidence, determined Rijos could not prove actual or constructive notice of the alleged dangerous condition, and granted the motion for summary judgment.
On appeal, Rijos contends there are triable issues of material fact about whether County had constructive notice of the dangerous condition. Rijos argues spills are reasonably foreseeable in a room where food and drinks were served to senior citizens and County's failure to maintain an inspection system creates a factual dispute about whether County exercised due care.
Based on a review of the evidence, we conclude County made a prima facie showing that the water spill was not obvious—a required element of proving constructive notice of a dangerous condition. Here, Rijos has not challenged the trial court's decision not to consider her untimely opposition papers, which were filed two days before the hearing. As a result, our review is limited to considering County's moving papers and evidence and does not reach the opposition papers, which the trial court did not consider. We conclude County carried its burden and made a prima facie showing that the water spill was not obvious and, thus, established that the dangerous condition cause of action lacked merit.
We therefore affirm the judgment.
FACTS
County's Department of Aging and Adult Services offers a senior nutrition program for individuals over 60 years of age. The nutrition program includes meals-on-wheels and a lunch program offered at the Kern River Valley Senior Center. The senior center is owned by County and is located on Lake Isabella Boulevard in Lake Isabella, California.
The lunch is served Mondays through Fridays between 11:45 a.m. and 12:45 p.m. in the senior center's dining room. On Fridays from 1:00 to 3:00 p.m., a knitting and crochet club, which calls itself the "Happy Hookers," meets in the senior center's dining room. On Friday, June 28, 2013, Rijos arrived at the senior center at around 1:00 p.m. to attend a meeting of the club. Shortly after Rijos arrived, she fell. Rijos claims she slipped in water on the floor of the dining room. When Rijos fell, most, if not all, of the seniors participating in the lunch program had left 15 to 30 minutes earlier.
Holly Miller, Nutrition Site Manager, is a County employee whose duties include overseeing the lunch program at the senior center. Miller was on site when Rijos fell. Prior to Rijos's fall, Miller received no information that water had been spilled or that there was water on the floor. After Rijos fell, Miller received no information that anyone had seen or known of any water on the floor prior to the accident. As required by County, Miller prepared the accident report after Rijos fell. During her four years as Nutrition Site Manager at the senior center, Miller was never aware of a slip and fall accident in the dining room from water or other spill on the floor, except for the accident involving Rijos.
Diane Barlow, a County employee with the job title "Cook II" was present in the dining room when Rijos fell. At that time, Barlow and Stella Beaupre, a volunteer, were in the dining room cleaning up and wiping down the last of the tables. During the time staff cleaned and straightened chairs and tables, any spills on the floor would be cleaned up immediately if noticed.
Prior to Rijos's fall, Barlow had not seen any water or other spill on the floor. Furthermore, no person had reported to Barlow or otherwise made her aware that there was a water spill on the floor of the dining room at any time during the senior lunch period. After Rijos fell, Miller and Barlow looked for water because Rijos stated she slipped on water. They did not find any evidence of water at that time.
PROCEEDINGS
In June 2014, Rijos filed a personal injury complaint for premises liability. The complaint alleged County negligently maintained, managed and operated the senior center and County's negligence was a proximate cause of damages to Rijos. The complaint also alleged the water that caused Rijos to slip and fall had been on the floor long enough that County knew or should have known of its existence. In August 2014, County answered the complaint by generally denying all the allegations and asserting 13 affirmative defenses. Motion for Summary Judgment
In January 2015, County filed a motion for summary judgment with supporting declaration, exhibits and separate statement of undisputed facts. County argued Rijos could not prove her cause of action for dangerous condition of public property because she could not establish (1) the negligence of a County employee created the dangerous condition or (2) County's actual or constructive notice of the alleged dangerous condition.
On March 26, 2015, the parties submitted a stipulation resetting the hearing date for the motion for summary judgment from April 17, 2015, to August 14, 2015. A few days later, the trial court signed the order on the stipulation. Reply to No Opposition
On August 4, 2015, County filed a reply in response to the failure of Rijos to timely serve and file any opposition to County's motion for summary judgment. County cited the statutory provision stating any opposition must be served and filed not less than 14 days before the hearing. (Code Civ. Proc., § 437c, subd. (b)(2).) Based on Rijos's failure to comply with the statutory requirements, County requested the court to grant its motion as unopposed. Ex Parte Application
Two days after County's reply was filed, Rijos filed an ex parte application to continue the hearing on the motion for summary judgment a month. The application was supported by two declarations from attorneys representing Rijos. The application and declarations are not part of the appellate record because Rijos did not include them in her appellant's appendix. On August 10, 2015, the trial court denied the ex parte application. Untimely Opposition Papers
On August 12, 2015—two days before the hearing—Rijos filed (1) a memorandum of points and authorities in opposition to the motion for summary judgment, (2) a separate statement, (3) a declaration by Rijos, (4) a declaration by counsel, and (5) objections to County's evidence. Counsel's declaration stated the parties had agreed in March to continue the trial date and suspend discovery so County could file a cross-complaint against the crochet club, which delayed the inspection of premises Rijos's counsel had noticed for March 31, 2015. In June 2015, counsel received the crochet club's answer to County's cross-complaint. In July 2015, Rijos's counsel attempted to reset the inspection and learned Rijos's expert would not be available until late August due to vacation. Counsel's declaration stated:
County's cross-complaint against the crochet club asserted claims for indemnity, apportionment and declaratory relief. Proof of service of the summons and cross-complaint was filed in May 2015.
"[She] then requested that the Motion for Summary Judgment be continued. [¶] ... Simultaneous to all of this [Rijos's] counsel's secretary had 2 strokes. Many items were not calendared properly including the date that the opposition was due and/or and Ex Parte should have been filed. [¶] ... [Rijos's] counsel admits that it was her error in failing to ask for this relief sooner but that was the only delay."
Rijos's counsel stated the inspection would be completed on August 26, 2015, and it was her belief "the floor in the senior center was not coated with any slip proof materials [and it was not] the proper type of flooring for a location where food is being served." Counsel asserted that if the choice of flooring was negligent and caused the fall, that type of negligence would defeat the motion regardless of notice. Rijos's separate statement explicitly disputed two of the 14 numbered paragraphs of material facts set forth in County's separate statement, stated five others were undisputed, and objected to the remainder. The separate document that formally presented Rijos's evidentiary objections was omitted from the appellant's appendix, except for the first page. The Hearing
On appeal, Rijos has not challenged the trial court's denial of her ex parte application or its rejection of her objections to County's evidence. The court stated it would not decide Rijos's objections because (1) they were not timely and (2) did not comport with the requirements of California Rules of Court, rule 3.1354. Accordingly, we presume the order denying the ex parte application and the trial court's decision not to consider Rijos's opposition papers were correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [presumption of correctness must be overcome by an affirmative showing of error by the appellant].)
On August 14, 2015, the hearing on the motion for summary judgment was held. At the beginning of the hearing, the court stated "the tentative, as indicated, is to grant the motion for summary judgment pursuant to Code of Civil Procedure 437(c) sub (d) sub sub (3) [sic], lack of timely filed opposition, separate statement, and that the undisputed facts and evidence in support would support a grant of the motion." The court stated the untimely opposition papers would not be considered. The court referred to its denial of the ex parte application and "a lack of diligence with regard to plaintiff's pursuit of discovery." The court (1) stated Rijos's expert would not be able to provide facts relating to County's notice of the alleged dangerous condition, (2) noted Rijos's failure to address how long the water had been on the floor, and (3) summarized Rijos's declaration by stating: "It is within a ten-minute period she didn't see any water, walked up there, and slipped and that her clothes were wet. The whole notice issue is not covered."
Counsel for Rijos acknowledged the court's rulings relating to the opposition papers and argued County still had the burden under the summary judgment statute to show there was no triable issue of material fact and it was entitled to judgment as a matter of law. Counsel stated he would not refer to the opposition, but would talk only about the adequacy of County's moving papers. Counsel argued the moving papers showed there was no inspection of the floor after the lunch, it was foreseeable there would be food or liquid on the floor after the lunch, and without an inspection system reasonably calculated to make sure the floor was clean after the seniors leave, there was a triable issue of fact as to whether County was on notice. Counsel argued there were two possible sources of the water: (1) it could have come from the lunch served to the seniors or (2) it could have been dripped onto the floor by a volunteer cleaning the table.
County counsel responded by arguing it was pure speculation where the water came from and noted another possibility was a member of the crochet club might have carried in a drink and spilled it. County counsel also argued the evidence showed the spill could have existed only for a short time, which meant the issue of an inspection system should not be reached.
After hearing the arguments, the court stated: "The Court's order is per the tentative. The County will submit the appropriate formal documents and the order will issue." Order and Judgment
In November 2015, County counsel sent a proposed order to Rijos's lawyers for review. The lawyers responded by stating (1) the proposal was insufficient to allow meaningful review by an appellate court; (2) the reference to "¶ 437c(b)(3) is of no help to the defendant's proposed order"; and (3) the statute requires an order granting the motion to specify the reasons for the determination, including specific reference to the evidence supporting the motion that indicates no triable issue exists.
On December 4, 2015, the court received County counsel's cover letter and a proposed order. Six days later, the court signed and filed the order. The order stated the opposition papers and objections to evidence were not timely, no justifiable excuse had been given, and the court did not consider them. The order stated the moving papers demonstrated no triable issue of material fact and the motion was "granted on defendant's separate statement of undisputed facts and evidence in support of facts, and C.C.P. section 437c(b)(3)." The order also stated judgment was granted in favor of County and against Rijos. In February 2016, Rijos appealed from the judgment.
DISCUSSION
I. SUMMARY JUDGMENT MOTIONS
A. Standard of Review
Appellate courts independently review an order granting summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In performing this independent review, appellate courts usually assume the same role as the trial court and assess the motion using a well-established three-step analysis to determine whether there is a triable issue as to any material fact. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607 (Brantley); Code Civ. Proc., § 437c, subd. (c).)
B. Three-Step Analysis
1. Framing the Issues
The first analytical step requires the court to identify the issues framed by the pleadings because the motion must demonstrate there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) In this case, Rijos's complaint seeks to impose liability on County under section 835 by alleging (1) her injuries were proximately caused by a dangerous condition at the senior center and (2) County had notice of the dangerous condition because it knew of the spilled water or, alternatively, should have known of the spill because it had been on the floor long enough to be discovered. The dangerous condition cause of action is the only claim Rijos has pursued in this appeal. Therefore, we conclude the issues framed by Rijos's pleading are the elements of a premises liability claim alleging a dangerous condition and the affirmative defenses to such a claim. (See Code Civ. Proc., § 437c, subd. (o).)
2. Moving Party's Burden: Stating Facts and Presenting Evidence
The second analytical step requires the court to determine whether the moving party has carried its burden of establishing facts that justify judgment in its favor. (Brantley, supra, 42 Cal.App.4th at p. 1602.) Rijos's opening brief contends County has not carried its burden because it cannot negate all the elements of the dangerous condition cause of action. County responds by arguing it is not required to negate all elements, but can meet its burden by showing one or more of the necessary elements of the cause of action cannot be established. We agree with County's interpretation of the summary judgment statute. Subdivision (p)(2) of Code of Civil Procedure section 437c plainly states a moving party defendant meets its burden of showing a cause of action has no merit by showing "that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action."
Here, County's motion for summary judgment contended Rijos could not establish her cause of action for premises liability under section 835 because she could not establish County's actual or constructive notice of the alleged dangerous condition. Accordingly, County's moving papers attempted to make a prima facie showing of the nonexistence of any triable issue of material fact as to notice. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) We evaluate County's attempt at a prima facie showing by reviewing (1) the facts listed in its separate statement of undisputed facts and (2) the supporting evidence referenced in that separate statement.
3. Opposing Party's Burden: Triable Issue of Material Fact
The third analytical step considers whether the opposing party has demonstrated the existence of a triable issue of material fact. (Brantley, supra, 42 Cal.App.4th at p. 1602.) That step is reached only if the moving party has carried its burden. (Id. at pp. 1602, 1606.) In this case, the trial court did not undertake the third step because the opposition papers were untimely and the tardiness was not justified.
C. Issue Presented on Appeal
Based on the foregoing, the dispositive question in this appeal is the second step in the three-step summary judgment analysis. As applied to this case, that step addresses whether County carried its initial burden of making a prima facie showing of the nonexistence of any triable issue of material fact relating to constructive notice. (See Aguilar, supra, 25 Cal.4th at p. 850.) "A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for." (Id. at p. 851.) II. CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION
A. Statutory Provisions
"A public entity may be liable for injuries caused by dangerous conditions of public property. (Gov. Code, §§ 830, 835.)" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 342-343.) Section 835 defines when this liability exists by stating:
"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 that 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."
Section 835.2 addresses both actual notice and constructive notice of a dangerous condition. Subdivision (b) of Section 835.2 deals with constructive notice by setting forth the matters that must be established before a public entity is charged with constructive notice of a dangerous condition:
"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. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
"(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
"(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition." (Italics added.)
The text of sections 835 and 835.2 have not been changed since they were enacted in 1963 as part of the Government Claims Act. (See Stats. 1963, ch. 1681, § 1, p. 3275.)
B. Cases Interpreting the Statutory Text
The Fourth District interpreted the construction notice provision in section 835.2, subdivision (b) as follows: "A claim for constructive notice has two threshold elements. [Citation.] A plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious." (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320.) Thus, County can preclude liability based on constructive notice of a dangerous condition by showing either element cannot be established.
Here, Rijos presents a number of arguments related to the absence of an inspection system and the exercise of due care. Inspection systems are mentioned in subdivision (b)(1) of section 835.2 and, over 50 years ago, this court addressed the role of inspection systems in the analysis of constructive notice:
"Plaintiff presented considerable evidence concerning the adequacy of the overall plan of inspection service maintained by the county, and of the inspection services actually performed by county employees. As we view the record, evidence as to th[e inspection] issue is open to more than one interpretation and had that been plaintiff's only hurdle, certainly the question should have been submitted to a jury for resolution. But in determining constructive notice, the method of inspection is secondary; the primary and indispensable element of constructive notice is a showing that the condition existed before the accident." (Strongman v. Kern County (1967) 255 Cal.App.2d 308, 313 (Strongman).)
This interpretation of the statute relating to the role of an inspection system was adopted the next year by the First District: "[I]n determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident." (State v. Superior Court (1968) 263 Cal.App.2d 396, 400.)
This quote did not mention the other element—the "obvious nature" of the dangerous condition—because the sole ground for the trial court's decision to grant nonsuit was the length of time the condition existed prior to the accident. (Strongman, supra, 255 Cal.App.2d at p. 314.) The dangerous condition was a missing plank in a wooden ramp connected to a dock at boating facilities on Lake Isabella. (Id. at pp. 309-310.) The plaintiff, while assisting her husband in loading their boat onto a trailer, stepped from the dock onto the ramp and "her right foot and leg plunged through the hole left by a missing plank, resulting in injuries." (Id. at p. 310.)
In Strongman, this court recognized the two elements of constructive notice—the notoriety of the condition and the length of time it must have existed—normally present questions of fact, but these questions of fact could be decided as a matter of law if the evidence was insufficient to support a finding the element existed. (Strongman, supra, 255 Cal.App.2d at p. 315.) There, the trial court granted nonsuit, concluding the plaintiff's evidence fell short of proving the condition that caused her injuries existed for any length of time prior to the accident. (Id. at p. 314.) This court affirmed the judgment, concluding the trial court did not err in evaluating the evidence. (Id. at pp. 315-316.) Thus, Strongman demonstrates the absence of an element of constructive notice can be decided as a matter of law.
In summary, to prove constructive notice, a plaintiff must establish (1) the dangerous condition existed for a sufficient period of time and (2) the dangerous condition was obvious. (Heskel, supra, 227 Cal.App.4th at p. 320; Strongman, supra, 255 Cal.App.2d at p. 315.) If there is insufficient evidence to support a jury finding one or both of these elements existed, a court can conclude as a matter of law that the public entity had no constructive notice of the dangerous condition. (Ibid.)
C. Evidence Relating to the Obvious Nature of the Water Spill
1. Contentions of the Parties
County argues there is no evidence that would allow Rijos to prove the spill was obvious and, therefore, the issue of reasonable inspection need not be presented to a trier of fact. Rijos acknowledges the cases stating the threshold elements to establishing constructive notice are whether the dangerous condition was obvious and whether it existed for a sufficient period of time. (E.g. Heskel, supra, 227 Cal.App.4th at p. 317.) She addresses the timing question by arguing: "This spill could have existed from 11:45 a.m. until 1:00 p.m., over 2-hours and 15 minutes." In contrast, Rijos does not address whether this particular water spill was obvious and, as a result, does not refer to any evidence from which a trier of fact could reasonably infer the spill was obvious. Instead, she refers to spills in general, arguing: "The declarations of both Miller and Barlow, spotlight the recognition of the dangerousness of a spill to those who occupy the premises and acknowledge that if they had known of a spill it would be cleaned up."
2. Analysis
We have located no evidence about the appearance of the particular water spill that allegedly caused Rijos to slip. For instance, there is no evidence about its size, its location relative to the tables and chairs in the room, or any darkening of the color of the floor due to wetness. In her declaration, Barlow stated the tables and chairs had been straightened and wiped down and no spill was discovered. This statement supports the inference that the water spill, if it existed, was not obvious.
Based on the absence of evidence showing what the spill looked like before the incident and the circumstantial evidence showing it was not obvious, we conclude County carried its initial burden of presenting a prima facie case that Rijos could not establish the "obvious nature" of the spill, which is an essential element of constructive notice under section 835.2, subdivision (b). Accordingly, the trial court did not err when it concluded Rijos could not establish notice under section 835.2. Thus, the grant of summary judgment was correct.
We note the outcome of this appeal does not turn on the trial court's decision not to consider Rijos's untimely opposition papers. As an alternative ground for affirming the judgment, we conducted an independent review of those opposition papers, which included the declaration of Rijos. Her declaration did not describe the appearance of the water spill before she fell, but asserted she was able to see the location where she fell from the time she arrived until she fell. This statement reasonably supports the inference that she did not see the spill, which supports the further inference that the spill was not obvious. It is not reasonable to infer from Rijos's statement that the spill was obvious. (See Code Civ. Proc., § 437c, subd. (c) [inferences].) Based on our review of the papers opposing summary judgment, we conclude they did not contain evidence from which a trier of fact could reasonably find the water spill was obvious and, as a result, would have been discovered in the exercise of due care. (See § 835.2, subd. (b)(1).)
DISPOSITION
The judgment is affirmed. County shall recover its costs on appeal.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
MEEHAN, J.