Filed 2/13/18 Wood v. Roadrunner R.V. Park, LLC CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



ROBERT WOOD et al.,

Plaintiffs and Appellants,

v.

ROADRUNNER R.V. PARK, LLC,

Defendant and Respondent.


E066158

(Super.Ct.No. MCC1400101)

OPINION


APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed.
The Blackman Law Firm and April R. Blackman for Plaintiffs and Appellants.
Morrow & White, Christopher A. White and Michael E. Israel for Defendant and Respondent.
I
INTRODUCTION
As Robert Wood was getting off a friend’s boat, which had pulled up to a concrete boat launching ramp at Lake Elsinore, Robert injured his leg as his foot landed in a submerged pothole. Robert Wood and Christina Wood (the Woods) filed a premises liability lawsuit against the City of Lake Elsinore (the City) and Roadrunner R.V. Park, LLC (Roadrunner).
The Woods appeal from judgment entered against them following an order granting Roadrunner’s motion for summary judgment (MSJ). The Woods contend Roadrunner failed to meet its initial burden of proving nonliability. The Woods further assert they provided sufficient evidence of the location of the dangerous condition, consisting of a pothole on the ramp. The Woods also argue that triable issues exist as to whether Roadrunner breached a duty to inspect and maintain the ramp, and whether Roadrunner was on notice of the existence of the dangerous condition. The Woods further argue the trial court erred in not considering evidence submitted by the Woods in opposition to Roadrunner’s MSJ. In addition, the Woods argue the trial court erred in not continuing the MSJ hearing to allow additional discovery.
We reject the Woods’ contentions and conclude the trial court properly granted summary judgment. We therefore affirm the judgment. Roadrunner met its initial burden of proving nonliability by establishing Roadrunner did not have actual or constructive notice of the pothole. The evidence further demonstrated there was no violation of any duty to inspect the location of the pothole, because the pothole was 10 to 15 feet from the water line and submerged in at least three feet of dark, murky water. Furthermore, Robert, who was a recreational user of the lake, received written warnings that there were sudden drop offs and hidden underwater hazards.
II
FACTS AND PROCEDURAL BACKGROUND
On June 29, 2013, in the late afternoon, Robert injured his leg when his foot landed in a pothole imbedded in a concrete boat launch ramp on the shore of Lake Elsinore (the incident). The pothole was submerged under at least three feet of dark, murky water.
Robert served a notice of government tort claim against the City, alleging he broke his left fibula when he “jumped off a boat onto what was supposed to be the even finished surface of the boat launch ramp” and “landed on an uneven surface/in a pot hole which caught his foot, resulting in broken leg.” Robert further alleged this was “a dangerous and defective condition of public property known or which should be known to City, hidden from [Robert] because the defect is under water.” Christina did not file a government tort claim.
On January 24, 2014, the Woods filed a premises liability complaint against Roadrunner and the City (defendants). The complaint alleges the following causes of action: (1) dangerous condition of public property, against the City (Gov. Code, § 835, et seq.), (2) premises liability, against Roadrunner, and (3) negligence, against Roadrunner. The Woods allege in their premises liability cause of action that Roadrunner owned and controlled the property where the pothole was located; the pothole constituted a dangerous condition because it was hidden under water on the launch ramp and not readily apparent to those who used the launch ramp; there was no warning of the pothole or any protection against the hazard; Roadrunner knew or should have known of the dangerous and defective condition or should have discovered it upon a proper inspection of the premises; Roadrunner failed to give notice of the dangerous condition or take steps to correct it; and as a consequence, Robert was injured.
The Woods allege in their negligence cause of action that Roadrunner assumed the duty to safely and properly design and construct the ramp; a duty to maintain the ramp free from hazards; and a duty to provide warnings of any dangers, to insure the public using the ramp was not exposed to the dangers and risks presented by the pothole. The Woods further allege that Roadrunner negligently failed to properly design the ramp; negligently performed ramp improvements, including failing to repair the pothole, which was “hidden under water which masked and hid” the hazard; and failed to provide warnings of the pothole or take other safety measures. As a consequence, Robert was injured.
Roadrunner filed an answer to the complaint, and the City filed a demurrer. The trial court sustained the City’s demurrer, in accordance with the City and the Woods’ stipulation, agreeing to the trial court sustaining the City’s demurrer, with leave to amend. The City filed a motion to dismiss the complaint based on the Woods’ failure to file an amended complaint, which was granted with prejudice.
On December 4, 2015, Roadrunner filed a summary judgment motion. Roadrunner argued that under California law (Civ. Code, § 670), Roadrunner does not own the property where Robert was injured, Roadrunner had no notice of the submerged pothole, and the Woods were warned of such hazards. Roadrunner argued Christina’s claim failed because her claim was, in essence, a loss of consortium claim, contingent upon Robert’s claims, which were meritless.
A. Evidence Filed in Support of Roadrunner’s MSJ
In support of the MSJ, Roadrunner filed, and the court granted, a request for judicial notice of the Woods’ complaint. Roadrunner’s attorney, Michael Israel, also filed in support of Roadrunner’s MSJ a declaration with attached exhibits. The exhibits included the Woods’ premises liability complaint (Exh. 1); Robert’s government tort claim (Exh. 2); the City’s demurrer to the Woods’ complaint (Exh. 3); excerpts from Robert’s deposition on April 29, 2015 (Exh. 4); a City brochure, entitled “Lake Use Regulations” (Exh. 5); excerpts from Robert’s responses to Roadrunner’s form interrogatories, in which Robert states he consumed four beers before he injured his leg (Exh. 6); and copies of printouts from the City’s website providing information about Lake Elsinore.
The excerpts from Robert’s deposition (Exh. 4) include the following testimony by Robert. Right before Robert was injured on the ramp, the boat was 10 or 15 feet from the water line, in front of the launch ramp. When asked to estimate the depth of the water where the pothole was located, Robert stated he would have to make an “educated guess,” because the water was “pretty murky.” As he stood on the boat, about to disembark, he could not see through the water because it was murky. It was a “dark color, cloudy lake water.” He could not see the bottom. Right before he got off the boat, the boat was directly facing the water line. Robert was on the left (port) side of the bow. While sitting on the side railing, he slid his buttocks off the side of the boat and turned around 180 degrees, so that he was facing the boat while holding the railing.
When Robert came down from the boat and landed on a hard surface, he felt sharp pain and fell to the ground. He felt his leg go into a hole, there was a pop, and then he was on his hands and knees. His other foot did not go in the hole. Robert said that the hole was hidden from him because it was under about three feet of dark, murky water. Robert stated he did not have any information about any other injury incidents on the Roadrunner ramp. He did not know if there had been any other injury incidents.
The City brochure containing regulations for use of Lake Elsinore (Exh. 5) included warnings stating, “DANGER – Beware of submerged obstacles, sudden drop-offs and other hidden underwater hazards; DANGER – NO Diving! Beware of shallow water. WARNING – NO Swimming permitted from public property! Wading waist deep is permitted in designated areas only.”
B. Evidence Filed in Support of the Woods’ Opposition
The Woods filed opposition to Roadrunner’s summary judgment motion. In support, the Woods’ attorney, April Blackman, filed a declaration, attaching the following exhibits: an email dated February 3, 2016, from Jason Simpson, the City Director of Administrative Services (Exh. A); a copy of a chart of Lake Elsinore’s monthly water elevations in 2013 (Exh. B); excerpts from Robert’s deposition on April 29, 2015 (Exh. C); Christina’s declaration dated February 4, 2016, with photographs of Lake Elsinore and the ramp (Exh. D); excerpts from Jean Mosbacher’s deposition on June 29, 2015 (Exh. E); printouts from Roadrunner’s website (Exh. F); a declaration by Heith Drake, dated February 3, 2016 (Exh. G); and excerpts from Perry Bruce’s deposition on June 11, 2014 (Exh. H).
The letter from the City administrator, Jason Simpson (Exh. A), states that “The City’s ownership of the real property underlying the Lake generally follows the 1236 elevation. However, property ownership is not legally describe[d] in a grant deed or other recordable document by elevation . . . you have to draw lines.” Simpson further states that attached to his letter are two documents, a deed from the State and a title report, neither of which are part of the record on appeal. Simpson states that the two documents show “City ownership of the real property ‘bowl’ that is the Lake Elsinore Recreation Area that was deeded from the State to the City.” Simpson notes that the title report has detailed depictions and “provides the property lines of that bowl owned by the City. It has been understood that the ramp at Road Runner and its marina area are not within that bowl.”
The chart of Lake Elsinore’s 2013 monthly water elevations (Exh. B) indicates that in June 2013, the water elevation was almost 1,242 feet. The lowest projected water elevation for 2013 was about 1,239 feet in December. There is no indication of who prepared the water elevation chart or the source of the data.
The excerpts from Robert’s deposition provided by the Woods (Exh. C), include Robert’s description of how he disembarked from the boat and stepped into a submerged hole in the ramp, injuring his ankle.
Christina’s declaration (Exh. D) states that five of the photos attached to her declaration were taken on June 30, 2013 (Nos. 13-17), the day after the incident. The five photos are date stamped “04/18/2012,” and only two of the photos show water and a concrete surface. The other three photos are of Roadrunner signs. One of the photos is of a Roadrunner R.V. Park sign, which states among other things, “USE OF PARK FACILITIES AT YOUR OWN RISK.” The other 12 photos attached to Christina’s declaration were taken on June 30, 2015, two years after the incident (Nos. 1-12). There is no explanation as to specifically what the photos depict. Fourteen of the photos appear to show a ramp and a concrete surface with sand and cracks. Some of the cracks are filled. Christina further stated in her declaration that on June 30, 2015, sand had moved over the concrete ramp and she noticed large cracks in the ramp, which were filled in with concrete.
Excerpts from Jean Mosbacher’s deposition (Exh. E) include the following testimony. Mosbacher is the owner and manager of Roadrunner R.V. Park, and had been owner and manager for 18 years. There were people who lived on her property year-round. There were one hundred camp sites. The elevation of the water on the ramp was contingent upon the time of year and amount of annual rain. There was never a time during Mosbacher’s ownership of Roadrunner R.V. Park when the entire ramp was above the lake water elevation.
Mosbacher could only maintain the ramp from “the water up.” She was prohibited from doing any maintenance on any of the ramp submerged under water. Her ability to do maintenance on the ramp therefore depended on the water elevation. If she did anything to the portion of the ramp under the water, she could get fined by the City. The ramp is made of concrete. There was no way of repairing a submerged pothole on the ramp until after the water elevation receded below the pothole, because concrete could not be poured under the water. Mosbacher denied there was a pothole in the ramp. The water level eventually dropped below where the Woods said there was a pothole, and there were no potholes in the concrete. The concrete was fine. Mosbacher acknowledged she would repair little holes and cracks in the ramp concrete above the water line. She did the repairs herself. She had not had to repair any holes.
If someone told her there was a submerged pothole in the ramp, she would check it out, and if she saw a big hole, she would close off the ramp permanently until the water level lowered below the hole so she could then repair it. She tried to make her R.V. park as safe as possible. Mosbacher does not make any money off of the boat launch. At the time of her deposition, the boat launch was closed because the mud table was high and the water table was too far out. It was not safe for boats. Mosbacher believed she owned the boat ramp down to the water line. She acknowledged the water level fluctuated, depending on the rainfall.
Before people use the boat ramp, they have to register at the Roadrunner R.V. Park office. When taking a boat out of the water, someone on the boat has to disembark into the water, get on the portion of the ramp which is under the water, and go get their boat trailer. Meanwhile, the boat is moved away from the ramp until the trailer is ready to pull the boat out.
Mosbacher last inspected the ramp the Monday before the incident on Saturday, June 29, 2013. She inspected the ramp above the water line, and also walked in the water on the ramp. Except in the winter, she normally walked down the ramp into the water every Monday to pick up trash that blows into the water. Mosbacher cannot inspect for ramp cracks or holes below the water line. In the summer, there normally are not any cracks above the water line because there is no water flow from rain, which causes the cracks. Mosbacher did not know when was the last time before the incident that she inspected the ramp in the manner she did so two days after the incident. It was “probably” the summer before the incident. Mosbacher did not know who built the ramp. It was there when she purchased the property 18 years ago. Other than filling tiny cracks in the ramp, Mosbacher has not done any other repairs on the ramp.
Heith Drake stated in his declaration (Exh. G) that on June 29, 2013, he was on his boat with the Woods. They were on a family outing. At the end of the day, Drake pulled up his boat as close to the boat ramp as possible. Robert got off the boat to get the truck and boat trailer. Robert put his legs over the boat rail, sat on the ledge of the boat, turned with his chest facing the boat, and lowered himself into the water. He did not jump into the water. When he touched the ramp, he fell onto his knees and crawled in the water, moaning and yelling in pain. Drake was later informed Robert fractured his ankle from stepping in a hole in the concrete ramp. After getting off the boat, Drake walked to the spot on the ramp where Robert hurt his ankle. Drake felt the hole in the concrete where Robert had landed.
Excerpts from Perry Bruce’s deposition (Exh. H) include the following testimony. Bruce said she did not recognize Robert, but assumed the person she saw jump off the boat was him because Robert was the one who got hurt. The purpose of the ramp was to launch boats. It was built before Bruce moved to the lake. She had lived there for 19 years. Bruce had seen Jeanne Walkenbalker “(phonetic),” the R.V. park owner’s daughter, frequently repair the ramp. Water, such as rain, damaged the cement ramp and therefore it normally required repairs every year. Some years, when there was not a lot of rain, the ramp did not require repairs. In 2004, when there were heavy rains, there were major repairs to the ramp. The cement cracked and it was patched. Bruce did not recall what kind of maintenance was done in 2013. At the time of Bruce’s deposition in June 2014, the ramp was shut down because the lake water level was low. It was shut down at the end of the boating year, which ends in September. Bruce, who used the boat ramp, believed Mosbacher kept the ramp in as good a condition as possible.
Roadrunner filed objections to the Woods’ opposition Exhibits A and B. Roadrunner argued Exhibit A, the City administrator’s email, constituted inadmissible hearsay and lacked foundation as to statements of opinion. As to Exhibit B, the chart of Lake Elsinore’s monthly water elevations in 2013, Roadrunner objected on the grounds the chart lacked foundation and authentication.
C. Hearing and Ruling on Roadrunner’s MSJ
The trial court heard oral argument on Roadrunner’s summary judgment motion, and granted the motion. The court made the following findings in its written order. Roadrunner made repairs, visually inspected the ramp, and maintained ownership and control of the ramp for nearly 18 years. The key issues in the motion were location and notice of the condition that caused Robert’s injury. The court concluded it was unclear where the pothole was located on the ramp and how long it was present, and whether there was someone who felt the pothole, who could describe it. The court noted that the Woods’ photos of the pothole were taken two years after the incident and it was unclear as to the significance of the markings on some of the photos. The court concluded that the Woods failed to demonstrate that Roadrunner knew or should have known of the condition (the pothole). The court entered judgment in favor of Roadrunner and against the Woods. The Woods thereafter filed a notice of appeal.
III
SUMMARY JUDGMENT STANDARD OF REVIEW
“Summary judgment is appropriate when ‘all the papers submitted show that there is no triable issue as to any material fact . . .’ such that a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) ‘The burden of persuasion remains with the party moving for summary judgment.’ [Citations.] ‘When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff “does not possess and cannot reasonably obtain, needed evidence.” [Citation.]’ [Citation.]” (Paduano v. American Honda Motor Co., Inc. (2009) 169 Cal.App.4th 1453, 1463 (Paduano); in accord, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar).) A defendant moving for summary judgment is therefore required “to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, at p. 854.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action.” (Id. at p. 855.)
On appeal, this court independently assesses “‘“the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]”’ [Citations.] A trial court’s ruling granting summary judgment may be affirmed on appeal if it is proper on any theory of law applicable to the case.” (Paduano, supra, 169 Cal.App.4th at p. 1463.)
IV
PREMISES LIABILITY
The trial court granted Roadrunner’s summary judgment motion based on the following grounds: (1) there was no evidence Roadrunner owned or controlled the land where the dangerous condition was located and (2) there was no evidence Roadrunner knew or should have known of the dangerous condition. The Woods contend the trial court erred in not considering their evidence submitted in opposition to Roadrunner’s MSJ. However, the written order granting Roadrunner’s MSJ does not state the trial court did not consider the Woods’ evidence. To the contrary, the written statement of decision indicates the court considered the evidence but concluded it did not raise a triable issue of fact.
We recognize that during the hearing on the MSJ, the trial court stated that “[t]here were no evidentiary rulings, because, pursuant to the new direction of the case, I didn’t feel like any of the evidence that was objected to was relevant or material to my ruling.” The only evidence Roadrunner objected to consisted of the City administrator’s email and the 2013 Lake Elsinore water elevation chart. Both of these documents were irrelevant and not material to the extent the trial court granted summary judgment based on the lack of evidence Roadrunner knew or should have known of the dangerous condition. The email and chart only addressed the issue of ownership of the ramp property. Therefore there was no prejudicial error in the trial court not ruling on Roadrunner’s objections to the two documents. Furthermore, while the City administrator’s email was admissible, the chart was not, based on a lack of foundation. (Evid. Code, § 403.)
A. Ownership of the Property Where Robert Was Injured
Civil Code section 670 provides in relevant part that “The State is the owner . . . of all land below the water of a navigable lake . . . .” Civil Code section 830 further provides that, “Except where the grant under which the land is held indicates a different intent, the owner of the upland, . . . when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark . . . .” (Italics added; see, County of Lake v. Smith (1991) 228 Cal.App.3d 214, 221, fn. 1 (County of Lake).) Civil Code section 830 allows “private landowners to own in fee a greater portion of the shorezone, down to the ‘low-water mark.’” (County of Lake, at p. 224.) Normally, “‘the term “low water mark” refers to the elevation of water in a non-tidal navigable lake or stream at its low point during a normal year, not affected by floods, droughts, or other special circumstances.’” (Id. at p. 227, quoting Riparian Boundaries, 43 Ops.Cal.Atty.Gen. 291, 296 [1964 Cal. AG LEXIS 148, p. 16] (1964).)
According to City administrator Jason Simpson’s letter, prior to Robert’s injury, the State deeded ownership of Lake Elsinore to the City. Therefore the City owned the real property underlying the lake up to the 1236 elevation. This elevation boundary most likely had been determined to be the mean low-water mark. Simpson further noted in his letter that “it has been understood” that the ramp at Roadrunner R.V. Park and its marina area were not within the City’s lake property deeded by the State to the City. Roadrunner failed to present any evidence that it did not own the property in question. On the other hand, there was evidence that Roadrunner exercised control over the ramp. Roadrunner’s owner repaired cracks in the concrete caused by water runoff and closed the ramp when she deemed it unsafe to use it. Neither party provided the deeds to the lake property or Roadrunner’s property, nor was any expert testimony provided establishing ownership of the property where the ramp was located.
Even though there was no conclusive evidence as to who owned the property where the pothole was located, it is probable that a determination could be made as to ownership of the property by an expert witness or possibly the court reviewing the title report and real property deeds for the lake and for Roadrunner’s adjacent property.
B. Notice of a Dangerous Condition
Nevertheless, even assuming, without deciding whether Roadrunner owned the property where the pothole was located, the trial court appropriately granted summary judgment, because it is undisputed that Roadrunner did not have actual or constructive notice of the pothole until after Robert’s injury.
In order to establish liability on a negligence or premises liability theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) “In the context of a business owner’s liability to a customer or invitee, speculation and conjecture with respect to how long a dangerous condition has existed are insufficient to satisfy a plaintiff’s burden.” (Id. at p. 1206.) “Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ibid.) Although the owner’s lack of knowledge is not a defense, to impose liability for injuries suffered by an invitee from a dangerous condition that is brought about by natural wear and tear or by third persons, the owner “‘“must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. . . .”’” (Ibid.)
The Woods do not argue Roadrunner had actual notice of the pothole. Instead, the Woods rely on the theory Roadrunner had constructive notice of the pothole. In this regard, a defendant is generally entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection, and corrected. (Ortega, supra, 26 Cal.4th at p. 1206.)
The courts do not impose exact time limitations when determining whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it. (Ortega, supra, 26 Cal.4th at p. 1207.) “Each accident must be viewed in light of its own unique circumstances. [Citation.] The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (Ibid.)
The evidence presented by Roadrunner, as well as the Woods, demonstrates that the Woods cannot show that the pothole existed for a sufficient time to have been discovered and repaired by ordinary care and inspection. (Ortega, supra, 26 Cal.4th at p. 1210, quoting Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447; see Ortega at p. 1213.) The evidence shows that no one knows how long the pothole was present. There is no evidence anyone was aware of the pothole’s existence up until the time of the incident, and there was no way of determining how long it had been present. Robert testified he did not know of or have any information about any other injury incidents on the Roadrunner ramp. Mosbacher, the owner of Roadrunner R.V. Park, testified that, before the incident, she was unaware of the pothole. She further stated that normally every Monday, except in the winter, she walked down the dry portion of the ramp and walked into the water on the ramp to pick up trash that had blown into the water. She had last done this the Monday before the incident. Under these circumstances, it is undisputed Roadrunner did not have actual or constructive notice of the pothole.
C. Duty to Inspect Ramp
The Woods argue that, even if Roadrunner did not have actual notice of the pothole, a triable issue exists as to whether Roadrunner breached its duty to inspect the ramp. But Roadrunner’s duty to inspect the ramp was limited to exercising ordinary care to discover dangerous conditions and to make reasonable inspections of its premises. (Ortega, supra, 26 Cal.4th at p. 1209.) “[O]rdinary care is determined in light of all the surrounding circumstances. (Ibid.) An owner “is not bound to discover defects a reasonable inspection would not disclose.” (Ibid.)
Not only were the Woods unable to provide any evidence as to how long the pothole was present in its current condition (size and depth) when Robert was injured, the evidence established that Roadrunner did not breach any duty to conduct a reasonable inspection of the ramp where the pothole was located, because the pothole was 10 to 15 feet from the water line, submerged under approximately three feet of dark, murky water, which obscured visibility of the pothole. Robert alleged in his government tort claim and in the Woods’ complaint, and also testified, that the pothole was hidden under the dark, murky lake water. Therefore, even if Roadrunner inspected the dry portion of the ramp, the submerged pothole would not have been visible while doing so, and also would not have been visible wading in the water.
We further conclude that, as a matter of law, a reasonable inspection of the ramp did not require the Roadrunner owner to wade into the water, down the ramp, searching for submerged ramp defects, which were not visible when looking down into the dark, murky lake water. As alleged in the Woods’ complaint, the pothole was hidden under water on the ramp and not readily apparent to those who used the ramp. Furthermore, those who used the lake, such as the Woods, were warned to “[b]eware of submerged obstacles, sudden drop-offs and other hidden underwater hazards” and “[b]eware of shallow water.”
We therefore conclude based on the totality of the evidence presented that the Woods are unable to show that Roadrunner breached any duty to reasonably inspect the location of the pothole or that a reasonable inspection would have put Roadrunner on notice of the pothole. The Woods have not presented any evidence, nor have they shown they can do so, demonstrating that Roadrunner should have discovered the pothole by ordinary care and inspection. (Ortega, supra, 26 Cal.4th at p. 1206.) Summary judgment was thus properly granted based on the Woods’ inability to provide evidence Roadrunner had actual or constructive notice of the pothole.
V
CONTINUANCE OF SUMMARY JUDGMENT MOTION
The Woods contend the trial court abused its discretion in not continuing the hearing on Roadrunner’s MSJ. We disagree. The Woods did not make a timely request or make a showing of good cause for a continuance.
During the MSJ hearing, the Woods’ attorney requested a continuance to allow the Woods to submit additional evidence establishing where the pothole was located, for purposes of proving that Roadrunner owned the property. However, without giving the trial court an opportunity to respond to the request, the Woods’ attorney proceeded to discuss other matters, thereby forfeiting the continuance request, and the request for a continuance was not renewed.
Citing Code of Civil Procedure section 437c, subdivision (h), the Woods argue their request for a continuance should have been granted because the trial court is required to deny a summary judgment motion, or grant a continuance, if the opposing party shows that controverting evidence may exist but cannot then be presented. However, under Code of Civil Procedure section 437c, subdivision (h), the Woods were required to submit on or before the due date for their MSJ opposition, an affidavit showing good cause for a continuance. The affidavit must state that facts essential to the opposition may exist, and explain why those facts cannot then be presented. Code of Civil Procedure section 437c, subdivision (h), provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h), italics added.)
Here, the Woods failed in their opposing papers to request a continuance, and failed to request a continuance at any time before the MSJ hearing. Furthermore, because the trial court properly granted summary judgment based on there being no evidence of notice of the dangerous condition, there was no need to continue the motion for the purpose of allowing additional evidence showing property ownership. Evidence establishing Roadrunner owned the property would not have made any difference in the trial court’s ruling on Roadrunner’s MSJ, because the Woods could not establish the element of notice, which was required to prove premises liability and negligence.
VI
DISPOSITION
The judgment is affirmed. Roadrunner is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:


MILLER
Acting P. J.


FIELDS
J.