McNeal v. Safeway

Filed 6/26/07 McNeal v. Safeway CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Appellant sued Safeway, Inc. (Safeway) for injuries allegedly suffered when she tripped over a hand basket she claimed was protruding near the end of a check-out counter at a Safeway store on Fruitvale Avenue in Oakland. Her original complaint alleged causes of action for negligence, premises liability, emotional distress, and willful misconduct. The latter two causes of action did not survive Safeways demurrer, and the negligence and premises liability claims were dismissed after the lower court granted summary judgment in favor of Safeway on both of them. Appellant, appearing both here and below in pro per, appeals from the latter order and judgment and also from the courts denial of her motion to tax the costs requested by Safeway. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was shopping at the Fruitvale Avenue Safeway store on January 25, 2004. According to her complaint and deposition testimony (provided in the record via documents filed by Safeway in support of its summary judgment motion), as she pushed her cart to a check out stand, she noted that there were no discarded hand baskets protruding into the check stand lane. As she waited to check out, she decided to get a bag of oranges from a fruit stand near the check out lane, and turned to do so. As she did, she allegedly tripped and fell over a hand basket that was sticking out into the check out lane. She claimed she fell very hard and suffered multiple contusions of the body and bleeding from her finger. She also claimed that there was a liquid substance on the floor which contributed to her fall and that, afterwards, produce fell on her and inadequate attention was paid to her by Safeway employees. (Ibid.)

Appellant filed her four-count complaint on January 20, 2005. Safeway demurred to the emotional distress and willful misconduct causes of action, and that demurrer was sustained without leave to amend. Subsequently, Safeway answered the other two causes of action in the complaint, denying liability.

On November 18, 2005, after conducting some discovery, Safeway filed a motion for summary judgment, accompanied by a memorandum of points and authorities, a statement of undisputed material facts, and three supporting declarations of Safeway employees. These papers were served by mail upon appellant on November 17, 2005, at her address of record; the hearing was noticed for February 6, 2006.^[1]

Appellant filed no responsive papers until February 1, when she served Safeways counsel by mail with an opposition Memordum^[2]together with her declaration and various other documents. But on that same day, i.e., February 1, Safeway personally served on appellantat her homea Reply re Non-Opposition to its motion for summary judgment. That pleading noted that appellants opposition papers were then over a week late, having been due on January 23. Appellant had not, during the several months between the service of Safeways motion for summary judgment and supporting papers and February 1, requested any extension of time for the filing of opposition papers or a continuance of the hearing.^[3]

A hearing on Safeways summary judgment motion was held on February 6, before the Honorable Winifred Smith. After hearing from both appellant, as noted appearing in pro per, and Safeways counsel, the court granted the motion on two grounds, namely appellant had not (1) shown there to be an triable issues of material fact and (2) filed her opposition to Safeways motion on a timely basis.^[4] An order to that effect was entered the same day and a judgment dismissing the case filed on February 16. Notice of entry of judgment was served on appellant on February 17 and filed with the court three days later.

On February 24, Safeway filed a Memorandum of Costs, serving appellant by mail with a copy thereof. It asked for costs totaling slightly over $2,100. On March 17, after the twenty days by which appellant should have filed any motion to tax costs, she filed such a motion and supporting papers. Safeway filed an opposition to that motion, pointing out both its late filing and its failure to establish that the costs claimed were not reasonably incurred. An order denying appellants motion to tax costs was filed on April 17.^[5]

Meanwhile, on March 29, appellant filed a timely notice of appeal.

III. DISCUSSION

This appeal deals only with the two causes of action to which summary judgment was granted in favor of Safeway. Despite the several mentions in appellants briefs of the courts grant of Safeways demurrer to her third and fourth causes of action, no appeal was filed as to the order dismissing those causes of action. Further, appellants notice of appeal makes clear that she is appealing only from the courts entry of summary judgment on her first two causes of action.

We find this appeal to be without merit for several reasons. First of all, although the trial court apparently did review the belated opposition of appellant, it did not need to do so. Code of Civil Procedure^[6]section 437c, subdivision (b)(2)^[7]provides that opposition to a motion for summary judgment shall be filed within 14 days of the scheduled hearing date. ( 437c, subd. (b)(2).) Of course, a continuance may be requested, and the standard for granting motions for continuances is very liberal. (See, e.g., Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-635.) But no motion for a continuance was made here, notwithstanding the fact that appellant did not leave on her out of town trip until two weeks after the motion was served on her. And, as this court has expressly held, the operative statute (i.e.,  437c, subd. (b)(2)) forbids the filing of any opposition papers less than 14 days prior to the scheduled hearing, and the case law has been strict in requiring good cause to be shown before late filed papers will be accepted. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624-625 (Hobson), disapproved on another ground in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6; see also G. E. Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11 Cal.App.4th 318, 325, fn. 4.) Thus, even though the trial courts comments at the hearing on the motion for summary judgment indicated it had reviewed appellants belatedly-filed papers, it did not need to do so. Under our de novo review standard (see, e.g., Hobson, supra, 73 Cal.App.4th at p. 622), we may and do affirm the grant of summary judgment on that basis alone.

But there is another basis for our affirmance: the lack of any showing by appellant that there are issues of material fact that she contested in her belated opposition. More specifically, appellants briefs to us seem to suggest that stores such as Safeway are subject to some sort of a strict liability standard because she, as an invitee had a special relationship with [Safeway.] She goes on to argueand in both briefs without any citation whatsoever to the record^[8]that Safeway had left both the basket and the sticky substance on [its] floor, but fails utterly to rebutor even citethe very specific declarations filed by Safeway showing that a specific inspection of the check out lane which appellant was using had been conducted within minutes of appellants alleged fall.

Further, even her belated filings in opposition to Safeways motion for summary judgment do not aid appellant; they were not the affidavits or declarations required by sections 437c, subdivisions (b)(2) and (d) but, instead, consisted of unverified witness statements.

The law on this subject is clear: pursuant to Civil Code section 1714, [e]very one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property . . . . (Civ. Code,  1714, subd. (a).) As Division One of this district wrote a few years back: This general rule requires a property owner to exercise ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515; see also Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 992-993.) In short, ordinary negligence rules apply to the owners of store premises such as Safeway; they are not, as appellant seems to suggest, insurers of the entirely and permanently safe condition of every element or corner of those premises.

Finally, we also reject appellants appeal from the trial courts denial of her motion to tax costs. First of all, that motion was, also, filed too late; it was due, pursuant to former California Rules of Court, rule 870 on March 16, but was not filed until March 17. And, again, no request for extension of time was filed by appellant. Further, the costs sought by Safeway in its memorandum of costs were the normal ones associated with a case such as this, e.g., filing fees, deposition costs, securing and copying medical records, etc. Appellant, in her briefs to us, provides no comprehensible argument as to why the trial court should have reduced or denied any portion of these costs.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1]All subsequent dates noted are in 2006.

^[2]Not, it should be noted, the only misspelling in appellants pleadings and briefs to us.

^[3]The record before us contains a copy of a declaration by appellant claiming to have been out of town because of an illness in her family from December 1, 2005 until January 16, 2006. However (1) this declaration does not contain a stamp showing it was ever filed with the court and (2) even if it was, and was considered by the court, appellant still had the period between November 18 and December 1, 2005, and the period between January 16 and 23, 2006, within which to request an extension of time to respond to the motion for summary judgment.

^[4]The courts written order suggested that the court did not consider appellants opposition papers because of their late filing. However, the courts statements at the hearing suggested that it had in fact considered those papers; we will rely on the latter version of events for purposes of this opinion.

^[5]No hearing was held on this motion for the apparent reason that appellant chose not to challenge the courts announced tentative ruling.

^[6]All further statutory citations are to the Code of Civil Procedure.

^[7]This section is miscited twice on the same page of Safeways brief, once as  427c and later in the same paragraph as  473c.

^[8]In its brief to us, Safeway argues that we can and should affirm the judgment below because of appellants utter failure, in her briefs to us, to cite at all to the factual record before us. We acknowledge that we can do this, but prefer to affirm on the two bases set forth herein.