Brooks v. Eugene Burger Management Corp.

• Decision Date: 28 November 1989
• Docket Number: No. F009318,F009318
• Citation: 264 Cal.Rptr. 756,215 Cal.App.3d 1611
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 12,393 William Nathan BROOKS, a Minor, etc., Plaintiff and Appellant, v. EUGENE BURGER MANAGEMENT CORPORATION, Defendant and Respondent.

Page 756

264 Cal.Rptr. 756

215 Cal.App.3d 1611, Prod.Liab.Rep. (CCH) P 12,393

William Nathan BROOKS, a Minor, etc., Plaintiff and Appellant, v. EUGENE BURGER MANAGEMENT CORPORATION, Defendant and Respondent.

No. F009318.

Court of Appeal, Fifth District, California.

Nov. 28, 1989.

Klein, Wegis & Dugan, John C. Hall, Frederick Kumpel and Mark J. Garibaldi, Bakersfield, for plaintiff and appellant.

Austin, Thompson & Sims, Ronald S. Sims and Stephen Austin, Bakersfield, for defendant and respondent.

MARTIN, Acting Presiding Justice.

This is an appeal from an order of dismissal after defendant's motion for summary judgment was granted.

On April 9, 1985, plaintiff William Nathan Brooks, a minor by and through his guardian ad litem Elizabeth Brooks, filed a complaint alleging causes of action for personal injury caused by motor vehicle, premises liability, general negligence and products liability.

Plaintiff generally alleged that on May 6, 1984, Nathan Brooks, a minor, was injured when he "walked off the premises of the Villa Capri Apartment complex and began crossing Pacheco Road, at which time he was struck by a vehicle operated by John James Salter." It was further alleged that Eugene Burger Management Corporation and Villa Capri Apartments, among others, owned and controlled the apartment complex located at 1000 Pacheco Road in Bakersfield.

The premises liability cause of action alleged the "premises were occupied by a substantial number of children yet the premises lacked adequate fencing or other structural confinement."

The negligence cause of action alleged that "said premises lacked adequate fencing and other safeguards for children so as to proximately cause the injuries and damages sustained by plaintiff WILLIAM NATHAN BROOKS as herein alleged."

The cause of action for products liability defined the product in question as follows: "A complex of apartment dwellings, playground equipment and grounds, located at 1000 Pacheco Road, Bakersfield, California, and known as the Villa Capri Apartment complex."

On November 25, 1985, Eugene Burger Management Corporation answered, generally denying the allegations of the unverified complaint and affirmatively alleging that Elizabeth Brooks was negligent in failing to supervise Nathan Brooks and that her negligence was the cause of the injury to Nathan and further alleged that the complaint failed to state a cause of action.

On December 29, 1986, Eugene Burger Management noticed a motion for summary judgment to be heard on February 2, 1987. The notice stated that Eugene Burger Management Corporation

"will move for an Order of Summary Judgment, and alternatively for an order that the following issues are without substantial controversy. [p] 1. The EUGENE BURGER MANAGEMENT CORPORATION did not owe any duty or responsibility to fence its property prior to or on the date of the accident in question. [p] 2. No conduct or activity or failure to act on behalf of EUGENE BURGER MANAGEMENT CORPORATION was a proximate cause of any injuries claimed by the plaintiff in the above-entitled matter."

In its memorandum in support of its motion for summary judgment, Eugene Burger Management Corporation for the most part cited pre-Rowland v. Christian (Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561) landlord-tenant cases to the effect that it is the parents' responsibility to care for the child, and not the apartment owner's, and that a tenant is charged with protecting himself from a patent condition such as the lack of a fence.

The motion for summary judgment included a statement of uncontested facts, submitting that 12 facts were undisputed; plaintiff disputed only two:

"As the tenant of the unit in question, the mother of the minor child had agreed, in receiving her lease and signing it, she would be responsible to supervise her children and that the management of the apartment complex was in no way responsible for such supervision"; and "The minor child was in the care, custody and control of ELIZABETH BROOKS, his mother, at the time of the accident."

Also filed in support of the motion for summary judgment was deposition testimony of Elizabeth Ann Brooks and a declaration of Shelly Beachler, the manager of the Villa Capri Apartments.

Plaintiff submitted in opposition to the motion for summary judgment points and authorities and his own statement of undisputed facts. John Hall, attorney for plaintiff, submitted a declaration attached to which were several documents referred to below and several photographs of the apartment complex and Nathan Brooks.

The hearing on the motion for summary judgment was held on May 1, 1987, prior to which the trial court had issued a tentative ruling proposing to deny the motion for summary judgment.

At the hearing, defendant objected to the lack of any declaration from plaintiff in opposition to the motion based on personal knowledge.

The motion for summary judgment was granted in its entirety. Plaintiff then filed a document on May 26, 1987, entitled "request for specification of issues raised in order granting summary judgment." In response thereto, the court entered a minute order containing the following:

"There is no evidence whatsoever that the Defendants were negligent in the operation of the premises.... [T]here is no rule, regulation or ordinance cited by the plaintiff or discovered by the Court which requires that the premises be fenced.

"2. If there was any defect in the premise [sic ], the court does find it would have been a patent defect. It would have been clearly visible to the victim and his mother.

"3. The defendants had no means of controlling the busy thoroughfare onto which the child wandered.

"4. The court can find no evidence whatsoever of product liability or breach of warranty or a cause of action for strict liability arising from the Defendant's operation of the apartment complex.

"Accordingly, since there are no triable issues of fact, the motion for summary judgment was granted."

An order on motion for summary judgment and dismissal was signed and filed on July 30, 1987, and a notice of appeal was filed on September 29, 1987.

SUMMARY JUDGMENT PROCEDURE

Code of Civil Procedure section 437c, subdivision (c), provides in relevant part:

"The motion for summary judgment shall be 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."

"The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of a trial...." (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380, 121 Cal.Rptr. 768.)

"The affidavits of the moving party are strictly construed, while those of the party opposing the motion are liberally construed, and doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]....)" (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177.)

"Summary judgment may be granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried..... The burden is on the moving party to provide supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory..... If there is any doubt as to whether summary judgment should be granted, that doubt should be resolved in favor of the party opposing the motion." (Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 663, 250 Cal.Rptr. 57, emphasis in original.)

A defendant moving for summary judgment must conclusively negate a necessary element of the plaintiff's case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial. (Platts v. Sacramento Northern Ry. (1988) 205 Cal.App.3d 1025, 1032, 253 Cal.Rptr. 269.) For instance, in the Platts case, plaintiff property owner brought an action against a railroad for damages resulting from the collapse of a railroad tunnel beneath his property. In support of its motion for summary judgment, defendant submitted declarations from one of its engineers who stated that the replacement of timbers did not contribute to the withdrawal of subjacent support, but that this maintenance actually strengthened the tunnel supports. Plaintiff supplied no declaration from a qualified expert contradicting any of the opinions set forth above. The court found that Northern's declaration had negated the element of causation.

STANDARD OF REVIEW

On appeal, review is limited to the facts shown in the documents presented to the trial judge in making our independent determination of their construction and effect as a matter of law. (Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 186 Cal.Rptr. 357.) Thus, this court reviews the actions of the trial court for abuse of discretion as to the factual allegations and looks independently at the legal effects of those facts.

DISCUSSION

Preliminarily, we address the content and format of plaintiff's brief wherein the "argument" is set forth in eight parts, including the "conclusion." While each part may address matters relevant to the appeal, in our view, the appeal essentially addresses two issues:

A. Whether defendant owed plaintiff a duty of care upon the facts of the instant case; and B. Whether defendant's apartment complex constitutes a "product" for purposes of products or strict liability.

We will address these issues seriatim.

A. Negligence and Premises Liability

In the complaint, plaintiff alleged that defendant owned the property in question and negligently supervised the premises by allowing substantial numbers of children to be present without...