Aaitui v. Grande Properties

• Decision Date: 28 October 1994
• Docket Number: No. B080558,B080558
• Citation: 35 Cal.Rptr.2d 123,29 Cal.App.4th 1369
• Court: California Court of Appeals Court of Appeals
• Parties: Lauliifou AAITUI, Plaintiff and Appellant, v. GRANDE PROPERTIES, et al., Defendants and Respondents.

Page 123

35 Cal.Rptr.2d 123

29 Cal.App.4th 1369

Lauliifou AAITUI, Plaintiff and Appellant, v. GRANDE PROPERTIES, et al., Defendants and Respondents.

No. B080558.

Court of Appeal, Second District, Division 1, California.

Oct. 28, 1994.

Stone & Rosenblatt, and Gregory E. Stone, Encino, and Maureen J. Shanahan, Malibu, for plaintiff and appellant.

John R. Calhoun, City Atty. and Michael M. Peters, Deputy City Atty., for defendants and respondents.

ORTEGA, Acting Presiding Justice.

We affirm the summary judgment granted to the City of Long Beach in this drowning case.

BACKGROUND

A four-year-old girl drowned in an apartment house swimming pool, owned by the Azar family and its alter ego, Grande Properties. For approximately the three previous years, the City of Long Beach had, pursuant to its municipal code, routinely inspected the pool and issued numerous citations for safety violations, giving notice that the pool was to be closed until the defects were corrected. The pool's gate was broken off its hinges and was not self-closing or self-latching. The owners did not correct the violations.

Nearly two years before the drowning, Charles Azar was given two weeks to correct the conditions or face a criminal complaint. After referral to the city prosecutor's office, at least four more inspections were made before the arraignment date, and the defects remained uncured. More than six months later, the owners had failed to correct the defects and Paul Azar was told he faced criminal prosecution.

Eventually Paul Azar acquired full title and the charges against Charles were dismissed. Continued violations were noted and threats of prosecution sent to Paul. By the time of the drowning, the pool had been ordered closed numerous times. The gate had never been fixed and now inadequate chlorination prevented one from seeing the At one point during all of this a city inspector chased children out of and away from the pool. After the drowning, a chain and lock were placed on the gate and a sign posted that the pool was closed. Plaintiff claims and the city denies that it chained the gate. Even after the drowning, the defects remained uncured.

bottom of the pool. More notices were sent by the city.

Plaintiff, the child's mother, sued the owners and the city for a federal civil rights violation and wrongful death. A third cause for willful misconduct named only the owners. The city secured summary judgment on the grounds that this was not a public pool (despite the deposition testimony of a city Health Department official that this was a public pool) and that no civil rights violation was shown. The owners are not parties to this appeal.

STANDARD OF REVIEW

After examining the facts before the trial judge on a summary judgment motion, an appellate court independently determines their effect as a matter of law. (Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)

Despite this independent review, the appellate court applies the same legal standard as did the trial court. Code of Civil Procedure section 437c, subdivision (c), requires the trial court to grant summary judgment if no triable issue exists as to a material fact, and if the papers entitle the moving party to a judgment as a matter of law. Emphasizing triable issues rather than disputed facts, summary judgment law turns on issue finding rather than issue determination. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441-442, 116 P.2d 62.)

Plaintiff attacks the trial court's stated reasons for granting summary judgment. But our review is not limited by the trial court's reasons. We review the ruling, not the rationale. (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219.)

DISCUSSION

I

Plaintiff claims the city failed to establish that this was not a public pool. Government Code section 830, subdivision (c) provides that " '[p]roperty of a public entity' and 'public property' mean real or personal property owned or controlled by the public entity[.]" Plaintiff concedes the city did not own the pool, but claims it exercised sufficient control to make it a public pool by virtue of various sections of its municipal code defining and regulating nuisances.

One municipal code section defines hazardous pools as attractive nuisances, and thus public nuisances. (Long Beach Muni.Code, § 8.76.010, subd. H.) Another section defines as a public nuisance any dangerous condition whether located in or about a building or on an unoccupied lot. (Id. at § 18.08.150.) In addition to various forms of enforcement, including the institution of criminal or civil proceedings, section 8.76.100 of the code provides that the city "is authorized and directed to cause the same to be abated by city forces or private contract[.]" Expenses are charged to the owner and become a lien on the property.

As for buildings themselves, "[w]ithin the limitations of the budget, the building official may cause to be demolished, altered or repaired, at city expense, any building found by the board of examiners, appeals and condemnation to constitute a substandard building or to be a public nuisance" which has not been timely repaired by the owner. (Long Beach Muni.Code, § 18.20.250.) The city's expenses in correcting the problem "shall be charged to and become an indebtedness of the owner of such building or structure, and thereupon a lien shall attach to the parcel of real property upon which is located the building which is the subject of the proceedings." (Ibid.)

Plaintiff points to the municipal code provisions, the city's power to issue or withhold permits, the ongoing inspections, the inference that the city chained the gate, and the evidence that the city, on several occasions, closed the pool and once shooed children out of and away from the pool. All of In Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 87 Cal.Rptr. 173, the city owned a grassy parking strip between the sidewalk and street curb on Stockton Boulevard, a city street, adjacent to a county owned hospital. "[C]ounty workers mowed and watered the strip, removed debris and filled any holes which developed. A problem arose. Drivers parking on Stockton Boulevard to visit the hospital would drive their automobiles over the rolled curb, permitting their wheels to rest on the parking strip. The strip became unsightly. Mowing the lawn became a difficult problem. The county asked the city to prohibit parking along the hospital frontage, but the city declined. The county suggested the possibility of paving the parking strip but without success. The county then reduced its maintenance activities, ceasing to water the lawn. As the grass died and bare dirt appeared, ruts and holes developed. Automobiles continued to roll over the curb onto the strip, creating more indentations. Each spring the county's ground crew filled in the holes but took no such action during the rainy winter weather. The county work crew continued to mow what grass was left in the strip and kept it clear of debris." (Id. at p. 830, 87 Cal.Rptr. 173.)

this, plaintiff argues, shows that the city exercised control over the unsafe pool and allowed it to remain a public nuisance, thus rendering it a public pool.

The plaintiff fell on the strip and was injured. The appellate court found that the county had exercised control over the parking strip, and thus satisfied the provisions of Government Code section 830, subdivision (c). "Where the public entity's relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition." (Low v. City of Sacramento, supra, 7 Cal.App.3d at pp. 833-834, 87 Cal.Rptr. 173.) "[I]n identifying the defendant with whom control resides, location of the power to correct the dangerous condition is an aid." (Id. at p. 832, 87 Cal.Rptr. 173.) The court also found that the county, in spite of a 1911 city annexation of the street, had an underlying fee out to the center of the boulevard.

The question is whether Low 's broad pronouncement applies to a situation where the public entity, while it might have had the statutory authority to take control, did not do so and limited itself to inspections and closing the pool.

Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 67 Cal.Rptr. 197, found that the city exercised control over a railroad right of way over a city street, where a train ran over the plaintiff cutting off both legs. Among other things, a city ordinance prohibited steam locomotives and limited the amount of time a stopped train could block a vehicular crossing.

In Hoover v. City of Fresno (1969) 272 Cal.App.2d 7, 77 Cal.Rptr. 146, the plaintiff was working for a sign company and removing a sign from a pole at the boundary of a street and public sidewalk. The adjacent property, for many years a used car lot, had once contained a gas station. The underground tanks were still in place and vented at the sidewalk. When plaintiff lit an acetylene torch the resulting explosion injured him. The appellate court reversed the city's summary judgment saying it had failed to establish lack of control over the sidewalk.

"For liability to be imposed on a public entity for a dangerous condition of property, the entity must be in a position to protect against or warn of the hazard. [Citation.] Therefore, the crucial element is not ownership, but rather control." (Mamola v. State of California ex rel. Dept. of Transportation (1979) 94 Cal.App.3d 781, 788, 156 Cal.Rptr. 614.) The plaintiff was injured when the car in which he was a passenger struck a barricade next to the road and fell into a ravine. The state owned the ravine and was held potentially liable for failing to adequately barricade the ravine. The state could not be held liable for any defect in the road itself, since it retained only an easement and had previously relinquished...