Opinion
G031134.
10-22-2003
STEVEN DALE SHARER, Plaintiff and Appellant, v. DANNY KS CAFÉ AND BILLARDS et al., Defendants and Respondents.
Law Offices of Leslie James Sherman, Leslie James Sherman and Marie E. Berglund for Plaintiff and Appellant. Manning & Marder, Kass, Ellrod, Ramirez, Lawrence D. Esten and Scott Wm. Davenport for Defendants and Respondents.
Plaintiff Steven Dale Sharer was injured in a bar fight at Danny Ks Café and Billiards (Danny Ks). He sued Danny Ks and Danny Kuylendall, the owner (collectively defendants) for negligence and premises liability. The defendants moved for summary judgment, which the trial court granted after briefing and oral argument. Sharer argues that there are triable issues of material fact and that he should have been granted a continuance under Code of Civil Procedure section 437c. He also claims the judgment was insufficient. We disagree and affirm the judgment.
Through interrogatory responses, appellant later discovered that the individual respondents name is Danny Kukendall, not Danny Kuylendall. Since the complaint was not amended to reflect the correct spelling, we will continue to refer to the individual respondent as "Kuylendall".
I
FACTS
On the evening of June 2, 2000, plaintiff Steven Dale Sharer went to Danny Ks with three friends. Sometime after arriving at the bar, Sharer and one of his friends went outside to smoke cigarettes. They were sitting on a bench outside the door when a man, later identified as Konelake Jennings, approached them. Shortly thereafter, an altercation occurred between Sharer and Jennings. Although the parties differ about who started the verbal exchange between the two men, the altercation turned physical when Sharer "took a swing" at Jennings. According to Sharer, Jennings became angry after Sharer responded to his request for a light in Spanish and repeatedly told him to sit down. He claims that he only attempted to hit Jennings when he realized physical contact between them was imminent. According to the defendants, Sharer offended Jennings with a comment in Spanish and by repeatedly telling him to sit down. After Sharer took a swing, which he admitted was either a weak hit or a complete miss, Jennings threw him into the window. Sharer broke the window with his arm. Jennings fell and Sharer attempted to kick him, not realizing the extent of the injury to his own arm.
Jennings view of what happened is unknown; he left the scene before the police arrived. Neither party has interviewed him, and he is not a party to this appeal.
Sharer filed this action for negligence and premises liability against the defendants on June 4, 2001. The negligence allegations in the original complaint were based on the following: (1) the untempered glass window Sharer was thrown through was not in conformity with the applicable building codes, (2) the owners were negligent in failing to determine the strength and security of the glass, (3) the owners were negligent in failing to determine if the windows installed in the building were in compliance with the applicable building codes, and (4) the owners did not provide Sharer, a business invitee, with adequate security or supervision.
The defendants filed a motion for summary judgment on April 19, 2002, more than 10 months after the complaint was filed. The defendants argued Sharer could not prove the required elements of negligence, and they were therefore entitled to judgment as a matter of law.
During the initial hearing on the motion, the court inquired as to whether the plaintiff would need more time to oppose the defendants motion. Sharer had apparently located and served Jennings only a short time before the hearing. Plaintiffs counsel did not directly answer the question, but when pushed by the court, finally responded in the affirmative. Counsel stated that he had not known about a possible connection between Danny Ks and Jennings and needed more discovery to determine the effects of this possible connection. He contended that discovery would concentrate on "Danny Ks responsibility as controller and owner of the premises[;] not only the deposition of Danny Kuylendall, but potentially any of the other security officers, personnel . . ." exploring the connection between Danny Ks and Jennings.
Defendants objected that Sharer already had almost one year to conduct discovery on these matters and that the request was not in compliance with Code of Civil Procedure section 437c, subdivision (h). The trial court agreed that Sharer had not properly complied with section 437c, subdivision (h) and further determined that he had not demonstrated the need for additional discovery to oppose the summary judgment motion. The court continued the hearing to review the moving and opposing papers, but declined to receive additional submissions. The court subsequently posted a tentative ruling in favor of the defendants, which was made final at the second hearing.
Unless otherwise indicated, all subsequent statutory references refer to the Code of Civil Procedure.
II
DISCUSSION
Standard of Review
We review the trial courts decision de novo, considering all evidence the parties offered in connection with the motion, except that which the court properly excluded, and the uncontradicted inferences the evidence reasonably supports. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 148.)
"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Fn. omitted.]" (Id. at p. 850.)
The opposing party may meet its burden by including with the opposition papers "affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken." (Code Civ. Proc., § 437c, subd. (b).) Summary judgment is improper if the opposing party meets its burden to produce evidence showing that "a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) However, the opposing affidavits or declarations may not create issues outside the pleadings. (Nash v. Fifth Amendment (1991) 116 Cal.App.3d 1006, 1119.)
Plaintiffs Request for a Continuance
Plaintiffs opening brief to this court addresses SB688, which amended Code of Civil Procedure section 437c, but was not in effect at the time of this suit. Plaintiffs discussion of this portion of the amendment is inapplicable to this case.
In his reply brief, Sharer complains that the trial court should have granted a section 437c continuance. Section 437c, subdivision (h) provides that a motion for summary judgment be denied, or a continuance be granted "[i]f it appears from the affidavits submitted in opposition . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented . . . ." The party seeking the continuance "`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.]" (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.)
To support his assertion, Sharer argues that he included with his opposition "evidence which showed that the most fundamental discovery questions had only just been answered . . . ." He refers to his allegations that the defendants concealed Jennings name and/or whereabouts until just before the motion was filed. To support these allegations, Sharer attached the declaration of a process server with his opposition. The declaration contained a hearsay statement that Jennings worked at Danny Ks, and a statement that Danny Ks had accepted service on behalf of Jennings. Counsel stated that he did not previously know of any connection between the defendants and Jennings so further discovery was warranted.
The record shows, however, that the defendants provided Jennings name to Sharer in their responses to interrogatories on January 15. In these responses, they also admitted that Jennings had been in the bar "numerous" times. Even so, Sharer did not request additional information about Jennings until February 25. The motion for summary judgment was filed on April 19, almost three months after the plaintiff learned that Jennings had been in the bar so often that the defendants were able to produce his name.
To further support his argument for a continuance, Sharer cites to Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, where the court reversed a grant of summary judgment based on the opposing partys discovery of additional evidence. In that case, the party discovered the additional evidence after filing its opposition. (Id. at p. 34.) Counsel then filed a declaration stating (1) that he could not attach the new information, a deposition transcript, because it was not yet prepared; and (2) that certain admissions made at the deposition were "essential" to his case. (Ibid.) Thus, the party requesting a continuance must make more than a vague assertion that discovery will lead to "essential" facts. (See Frazee v. Seely, supra, 95 Cal.App.4th at p. 635 [continuance granted where opposing party was awaiting receipt of deposition transcript and had not deposed the experts whose affidavits supported the motion]; Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 396 [continuance granted where oppositions affidavit stated that conflicting statements were made at key witness deposition, transcript had not been received and counsel had noticed the depositions of other key witnesses].)
Sharer never made a written motion to continue the hearing to conduct further discovery to oppose the motion, nor did the declaration attached to his opposition state such a need. When the court first inquired as to whether Sharer needed a continuance to conduct discovery, counsel did not respond affirmatively. Instead he stated that Sharer had already presented triable issues of facts in his opposition, and more discovery would be taken later, apparently after the summary judgment motion was denied. After further queries by the court, counsel stated he did want to conduct discovery in opposition to the motion, but he did not show what essential facts existed, or why he was unable to present them to the court at that time, as required by section 437c, subdivision (h). Thus, the court properly declined Sharers oral request for a continuance.
Plaintiffs Negligence Claim
First, we note that Sharer did not oppose the defendants motion for summary judgment on the negligence or premise liability claims based on allegations regarding the untempered glass, nor did he brief it for this court. Any issues regarding the untempered glass are therefore waived. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.)
We turn then to the remaining negligence claim. Sharers primary argument is that the defendants breached their duty to protect customers from the reasonably foreseeable danger that a fight would occur in the smoking area. Sharer argues that the defendants were a substantial factor in causing his injuries because the security guard was not present when the fight occurred and the bartender could not see the fight through the window since the blinds were drawn.
The defendants had an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact as to one of the elements of the plaintiffs cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Thus, even if the defendants had a duty and breached it, they may still prove lack of causation as a matter of law. "[T]he decision whether [the] breach caused the damage . . . is again within the jurys domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]" (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.) The standard is high but is not impossible to meet. (Ibid.)
In support of the motion, the defendants offered excerpts from the plaintiffs deposition. The trial court granted the motion based on three of the defendants undisputed facts, taken directly from the plaintiffs deposition. These facts can be summarized as follows: (1) plaintiff was injured at Danny Ks, (2) plaintiff threw the first punch in an altercation that had previously only been verbal, and (3) plaintiff was unaware of any prior problems at Danny Ks. These facts negate causation by any alleged breach, demonstrating that the plaintiff was the cause of his own injuries. Sharer admitted that he was the one who took the fight to the physical level. Therefore, it was his escalation of the dispute and not the breach of any duty by the defendants that was the cause of his injury.
The burden then shifted to Sharer to make a prima facie showing that a triable issue of fact existed. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, Sharer could not rely on "mere allegations or denials of [the] pleadings." (Code Civ. Proc., § 437c, subd. (p)(2); see also Maltby v. Shook (1955) 131 Cal.App.2d 349, 353 [the affidavits supporting an opposition to summary judgment must set forth facts within the personal knowledge of the declarant].) Even liberally construing the plaintiffs evidence, as we are required to do, we do not find a triable issue of fact as to causation. (Snider v. Snider (1962) 200 Cal.App.2d 741, 748.) Sharer submitted no relevant, admissible evidence of his own in opposition to the defendants motion for summary judgment. Sharer attached two declarations to his opposition. The declaration of a process server relating to process service on Konelake Jennings, and counsels declaration authenticating exhibits, such as a deposition transcript and police report.
Moreover, Sharer cannot rely on the list of disputed facts in the separate statement he filed in opposition to the defendants motion. The evidence used to support his factual contentions did not constitute admissible evidence at all. For some of his propositions, he cites to legal authority, not evidence of facts. For others, he merely states the propositions are "traditional question[s] of fact," claims he was "hampered in discovery," or admits he does not have any evidence. Even where Sharer did cite to his own deposition, he provided no page references. Speculative evidence and inadmissible authorities cannot be used to create triable issues of fact. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.) The trial court sustained the defendants objections to these "disputed facts."
Sharer cannot use his allegations that the defendants abused the discovery process to establish the existence of a triable issue, and even if he could, he offers no support for this contention. As early as January 2002, the plaintiff was informed of the names of all employees working at the bar the night in question. He named the owner of the bar in the complaint. Yet, the plaintiff is unable to set forth admissible evidence to support his arguments. Instead he relies on a request for judicial notice of the police report, which contains inadmissible hearsay statements.
Finally, Sharer cannot create a triable issue of fact by contradicting facts he admitted in his deposition testimony. (Thompson v. Williams (1989) 211 Cal.App.3d 566, 573.) Counsels assertion that the facts are disputed as to who "touched" who first does not matter since Sharers deposition testimony clearly states that he took the first swing at Jennings: "A[.] . . . I told him, `I dont want to fight, but I think you really should sit down. And it wasnt in a meek way. [¶] Q[.] So you said it rather boldly? [¶] A[.] I said it rather boldly. `I think you should sit down. [¶] . . . [¶] A[.] . . . So I took a swing at him, but it was — lets just call it I took a swing at him and I missed. [¶] . . . [¶] A[.] It was a pretty weak hit or I actually missed completely."
Sharer admitted to being the initial aggressor when he testified he threw the first punch. He cannot now recant that damaging admission. His argument that he knew physical contact was imminent and that he was defending himself is irrelevant. "`[W]hen such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. [Citations.] After-the-fact attempts to reverse prior admissions are impermissible because a party cannot rely on contradictions in his own testimony to create a triable issue of fact. [Citations.]" (Thompson v. Williams (1989) 211 Cal.App.3d 566, 573, original italics.)
The Trial Courts Order
Finally, Sharer contends that the trial court did not provide an adequate basis for granting the motion. We disagree. "Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. . . . The court shall record its determination by court reporter or written order." (Code Civ. Proc. § 437c, subd. (g).)
Contrary to Sharers contention, he is not necessarily entitled to a reversal if the courts statement of reasons is insufficient. "`It is the validity of the ruling which is reviewable and not the reasons therefor. [Citation.] [Citation.]" (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1628; Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448-449.) When independent appellate review establishes the validity of the judgment, no harm has been done if the trial court failed to set forth a sufficient statement of reasons. (Santa Barbara Pistachio Ranch, supra, 88 Cal.App.4th at p. 449; Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1459-1460.) The rationale is that even if the trial court had set forth a sufficient statement, the appellate court would not have to agree with or rely on that statement, since review is de novo. (Soto v. State of California (1997) 56 Cal.App.4th 196, 199.)
In any event, the ruling here is sufficient. When the court made the tentative ruling final at the second hearing, the court indicated the ruling was based on specific paragraphs of the defendants undisputed facts, and the objections it sustained to the plaintiffs disputed facts. The ruling was recorded in the reporters transcript and Sharers counsel indicated at the hearing that he understood the basis for the ruling. While the judgment itself did not state the basis for the ruling, the transcript is sufficient for purposes of the Code of Civil Procedure section 437c, subdivision (g).
III
DISPOSITION
The order granting summary judgment is affirmed. Defendants are entitled to their costs on appeal.
We Concur: SILLS, P. J. & FYBEL, J.