Opinion
B231201
02-06-2012
FEDERICO SANCHEZ, Plaintiff and Appellant, v. ABDENAGO E. CARPIO et al., Defendants and Respondents.
Law Offices of Peter T. Brown, Peter T. Brown, Thomas Werner for Plaintiff and Appellant. Calendo, Puckett, Sheedy and DiCorrado, Christopher M. Sheedy, Kelly Hara-Tadaki for Defendants and Respondents Irene Carpio and Esperanza Carpio. Hanger, Steinberg, Shapiro & Ash, Robert T. Hanger, Hillary Drennan Patton for Defendants and Respondents Senh Hin Tsan and Phan Vong.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GC041255)
APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph F. De Vanon, Judge. Affirmed.
Law Offices of Peter T. Brown, Peter T. Brown, Thomas Werner for Plaintiff and Appellant.
Calendo, Puckett, Sheedy and DiCorrado, Christopher M. Sheedy, Kelly Hara-Tadaki for Defendants and Respondents Irene Carpio and Esperanza Carpio.
Hanger, Steinberg, Shapiro & Ash, Robert T. Hanger, Hillary Drennan Patton for Defendants and Respondents Senh Hin Tsan and Phan Vong.
Plaintiff and appellant Federico Sanchez appeals from the judgment entered in favor of respondents Irene and Esperanza Carpio, and Senh Hin Tsan and Phan Vong, after respondents' motions for summary judgment were granted. We affirm.
Facts
This is a personal injury action. Appellant, an experienced handyman, fell from a wall owned by Tsan and Vong, while he was working on Esperanza Carpio's garage.
These are the facts: Appellant was hired by Irene and Esperanza Carpio, who are mother and daughter. According to the Carpios, he was hired to paint the garage. According to appellant, he was hired not just to paint, but also to make repairs.
In this factually and legally straightforward case, appellant filed 74 pages of evidentiary objections to the Carpios' proposed undisputed facts, and disputed many of those proposed undisputed facts with reference to his objections. For instance, based on their own declarations, the Carpios proposed as undisputed that Irene Carpio is Esperanza Carpio's daughter. Appellant disputed this innocuous background fact by alleging minor procedural irregularities in the separate statement and declarations, for instance, that the declarant did not state that the declaration was made in support of the summary judgment motion. Where a fact is "disputed" on that kind of ground, we consider it undisputed.
Tsan and Vong are the Carpios' next door neighbors. The Carpio garage is close to the Carpio/Tsan-Vong property line. There is a cement-block wall on the Tsan/Vong property. Appellant estimated the distance between the wall and the garage as fourteen or fifteen inches.
In order to reach some of the shingles on the garage roof, appellant propped a ladder against the wall, climbed onto the top of the wall, and from there reached out to the garage, using the wall "like a scaffold." He used the wall this way for about three hours. No one instructed him to do so.
Both Irene and Esperanza declared that they did not know that appellant would be using the wall as a scaffold, but appellant declared that he told them that he would need to stand on the wall, and they agreed.
Appellant knew that the wall belonged to Tsan and Vong. He lived in the neighborhood, and had watched them build it. It was undisputed that neither Tsan nor Vong gave him permission to enter their property and stand on top of their wall.
Appellant testified that the wall was "leveled, and then it has a step that's eight feet tall, and then the wall goes on." During the three hours in which he used the wall as a scaffold, he used the step three times. Then, while he was sweeping and cleaning the new shingles, he fell, sustaining injuries. Appellant described the accident: he was walking sideways on the wall, looking where he was going, intending to step down, and lost his balance when he put one foot on the step.
At his deposition, appellant testified that Tsan and Vong were in their dining room when he fell and saw him fall. They called paramedics.
Appellant sued the Carpios for negligence, negligence per se, and premises liability, and sued Tsan and Vong for negligence and premises liability.
In the operative pleading, a first amended complaint, the allegations against the Carpios were that they were negligent in that they allowed their garage to remain on their property, even though it was not in compliance with Rosemead Municipal Code section 17.20.060, which, according to the complaint, requires property owners to "maintain a side yard adjacent to each side lot line not less than five feet for the first story portion of a building."
As to Tsan and Vong, the allegations were they were negligent because they allowed their wall "to remain on the property too close to the Carpio garage," and because the wall was "illegally built," and because they had the duty to appellant "to maintain their property to be free of hazardous conditions as they had the last clear chance to avoid an accident." The only hazard identified is that the wall is too close to the garage. The Carpios, and Tsan and Vong, moved separately for summary judgment.
The last clear chance doctrine was abolished by Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829.
As to the allegation that the garage was not in compliance with the building code, the Carpios submitted the deposition testimony of James Donovan, a building inspector for the City of Rosemead. He testified that he examined the Carpio garage and the building permits on the garage, that the garage was built in 1937, and that there was no violation of Rosemead Municipal Code section 17.20.060, because the regulation has an exemption for existing nonconforming conditions, such as the garage.
Tsan and Vong also proffered facts based on Donovan's testimony and a survey: the wall is properly located on the Tsan/Vong property, and is under six feet in height. Further, Donovan opined that the wall was exempt from permit and building code requirements because it was under six feet in height.
Discussion
Appellant contends that the judgment must be reversed because, inter alia, the trial court did not rule on his evidentiary objections, the Carpios' reply pleading was late and included new evidence; he was given too little time to respond to this new evidence; respondents' declarations at summary judgment were fatally defective in that they did not state that they were made in support of the motion for summary judgment; and because respondents' pleadings were out of compliance with Judicial Council rules in that they bore the wrong date, used two columns instead of one, did not correctly identify or number the issues, and had other, similar, flaws. We see no reversible error. (Cal. Const., art. VI, § 13.)
First, the trial court did make rulings on many if not all of appellant's objections, which were for the most part not evidentiary objections, but instead allegations that respondents' declarations and pleadings had insignificant technical flaws. (See fn. 1.)
Next, although appellant does not specify the new evidence he sees in the Carpio reply pleading, this seems to be a reference to the fact that, in an obvious typo, Esperanza Carpio's original declaration sometimes referred to her mother ("my mother and I retained the services of Federico Sanchez"), rather than to her daughter. (Esperanza Carpio is 94 years old.) After appellant sought to have the declaration disregarded on that ground, Esperanza Carpio filed a corrected declaration. The court's order on summary judgment notes "the court continued the hearing [on the Carpio motion] to allow plaintiff to respond substantively to the evidence offered but plaintiff has not done so."
Appellant sought to have this declaration disregarded because it was new. Naturally, the trial court did no so such thing.
The point of the separate statement (and, we add, the other technical requirements in the summary judgment proceedings) is "not to satisfy some sadistic urge to torment lawyers" (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335) but to ensure due process for the opposing party and to enable the trial court to discharge its duties. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31.) Respondents' pleadings amply fulfilled those functions here.
Most importantly, appellant nowhere explains why any of the problems alleged caused him to suffer prejudice or resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 944-945 [appellant's brief must show exactly how any error caused a miscarriage of justice].)
We turn to appellant's more substantive arguments.
A defendant moving for summary judgment must show that one or more elements cannot be established or that there is a complete defense. If the moving party satisfies its initial burden, the burden shifts to the opposing party to set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(1), (2).) The ruling on a motion for summary adjudication presents a question of law, so our review is de novo, applying the same three-step analysis required of the trial court. We must review the issues framed by the pleadings, determine whether the moving party has negated the opponent's claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 978-979.)
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First, as to all respondents, appellant cites authority for the proposition that "[t]he issue of causation is usually a question for the jury" (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 252) and argues that a party opposing summary judgment may rely on circumstantial evidence, in that "[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider . . . all inferences reasonably deducible from the evidence." (Code Civ. Proc., § 437c, subd. (c).) All that is true, but in instances like this one, where moving defendants show that the plaintiff cannot establish an element of his cause of action, and the plaintiff fails in turn to raise a triable issue of fact on the theories in his complaint, the moving defendants are entitled to summary judgment. (Ibid.)
Carpio
As to the Carpios, appellant argues that there is a dispute of fact about whether he was hired to paint the garage, or whether he was hired to paint and repair the garage, and a disputed issue of fact about whether he told the Carpios that he would have to get on the roof to repair the shingles. There is such a dispute of fact, but appellant does not tell us how the dispute is material, and we do not see that it is.
Appellant also suggests that the flaw in Esperanza Carpio's original declaration (that is, the reference to her mother, rather than to her daughter) means that there is an issue of "competency/incompetency" for both her and Irene Carpio, and that that flaw and the other procedural flaws in the declaration show that there are triable issues of material fact. The contention is far too speculative, and too lacking in specificity, to constitute a ground for reversal.
Tsan and Vong
From the evidence that Tsan and Vong saw him fall, appellant concludes that there is a triable issue of fact on whether they saw him on the wall during the entire period in which he was on the wall, and from that speculation concludes that there is a triable issue of fact on whether they gave him permission to use the wall, and a triable issue on whether they breached a duty to him because they saw him on the wall and did not tell him to get down off the wall.
On this contention, the trial court found: "Plaintiff's contention that [Tsan and Vong] were negligent because they watched him work and use the wall as scaffolding for three hours without warning him that this is dangerous has no merit: (1) This theory is not alleged in the complaint; (2) any person of normal intelligence knows that standing on a wall is dangerous." We reach the same conclusion.
Appellant also contends that there is a triable issue of fact on the height of the wall, and argues that if it was eight feet tall, a permit was required or at least that respondents did not show that it wasn't. As the trial court found: "Plaintiff's testimony that the wall was eight feet in height is not substantial evidence of the existence of a material dispute. The entity responsible for determining the existence of violations, the City of Rosemead, has stated through Mr. Donovan that there is no violation. Further, the alleged basis for liability against Tsan and Vong is that the wall was too close to the Carpio garage, not that it was too tall."
Disposition
The judgment is affirmed. Respondents to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
KRIEGLER, J.