Heyat v. Marriott International
Filed 1/10/13 Heyat v.
Marriott International CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
FIROUZ HEYAT,
Plaintiff and Appellant,
v.
MARRIOTT INTERNATIONAL, INC., et al.,
Defendants and Respondents.
G045694
(Super. Ct. No. 30-2010-00358569)
O P I N I O N
Appeal from a judgment of the Superior Court of
County, John C. Gastelum, Judge. Affirmed.
Law Offices of Foroozandeh and Majid Foroozandeh for Plaintiff and
Appellant.
Brady, Vorwerck, Ryder & Caspino, Robert B. Ryder and Ravi Sudan for
Defendants and Respondents.
* * *
Plaintiff and appellant Firouz Heyat sued defendants and respondents
pool complex at Defendants’ timeshare resort.
Heyat alleges the difficulties he experiences in walking render him
disabled and Defendants violated the Act by failing to post signs near the pool
complex’s steps directing him to a nearby ramp that provided access to and from
the pool deck. According to Heyat,
Defendants’ failure to post signs denied him equal access to the pool complex
and therefore rendered Defendants liable under the Act for his actual damages,
treble damages, and attorney fees.
Defendants moved for summary
judgment on the ground Heyat lacked standing to pursue his claim under the
Act because (1) he testified in deposition he was not disabled when he
fell, and (2) the readily-visible ramp provided Heyat equal access to the
pool complex and he simply chose not to use it.
The trial court granted Defendants’ motion, finding Heyat’s deposition
testimony established he was not disabled and therefore lacked standing to
pursue his claim under the Act. The
court did not decide whether Defendants denied Heyat equal access.
We affirm the trial court’s decision granting Defendants summary
judgment on the ground Heyat lacks standing, but do so because the undisputed
evidence and controlling authorities establish Defendants did not deny Heyat
equal access to and from the pool complex.
Accordingly, we need not address the many issues the parties raise
regarding whether Heyat’s Alzheimer’s disease rendered him incompetent to
testify at his deposition and whether he was disabled when he fell on the
steps.
We also affirm the trial court’s decision denying Heyat leave to
file an amended complaint adding a negligence per se claim. The trial court did not abuse its discretion
in denying the motion because the record supports the court’s findings Heyat
failed to explain his unreasonable delay in seeking leave to amend, the
unreasonable delay prejudiced Defendants, and Heyat’s proposed pleading failed
to state a negligence per se claim.
I
Facts
and Procedural History
Defendants own and operate a timeshare resort in Newport Beach, California. They constructed the resort in the late
1990’s and opened it to the public in 2000.
Heyat’s adult son owns a timeshare at the resort. In October 2009, Heyat and his wife traveled
from their home in Maryland to spend a week at the resort with their son and his wife. At the time, Heyat was 83 years old and had
reduced mobility due to his age and various health problems.
During his stay, Heyat walked out on the lobby balcony to look for
his wife, who was lounging by the resort’s pool. After spotting her, Heyat climbed down the
stairs from the lobby to the pool complex’s gated entrance. He entered the pool complex through the gate
and climbed down two separate flights of five steps to the pool deck rather
than use the nearby access ramp. Heyat
then walked around to the pool’s other side to talk with his wife.
After a brief discussion, Heyat headed back to the lobby. He retraced his route to the steps where he
entered the pool complex. Along the way
Heyat passed the end of the access ramp where it met the pool deck. Using a cane, Heyat slowly began climbing the
first flight of five steps. As he
reached the second step, he stopped and slowly began shuffling sideways toward
the hand railing. Heyat lost his balance
before he reached the hand railing and fell backwards, fracturing his left
hip.
In March 2010, Heyat filed this action against Defendants, alleging
claims for premises liability and negligence.
He later filed a first amended complaint, adding a third cause of action
for denial of equal access under the Act.
The claim alleges Heyat was denied equal access to the pool and then to
the lobby because “there was no handicap access ramp, no signs posted directing
a disabled person to the location of a ramp for the disabled and no
staff/employee to assist [Heyat]†in going down or up the steps to and from the
pool deck. Heyat prayed for actual
damages, treble damages, and attorney fees under the Act. The first amended complaint also joined
Heyat’s wife as a plaintiff and alleged claims for negligent infliction of
emotional distress and loss of consortium on her behalf. After Defendants successfully moved to
require Heyat and his wife to post a $75,000 undertaking under Code of Civil
Procedure section 1030, Heyat and his wife voluntarily dismissed all causes of
action except Heyat’s denial of equal access claim.
Based on Heyat’s refusal to dismiss his sole remaining claim, Defendants
brought a motion for monetary sanctions under Code of Civil Procedure
section 128.7. They argued Heyat’s
equal access claim was frivolous and lacked factual and legal support because
Heyat testified at deposition he was not disabled at the time he fell and it
never occurred to him to look for an access ramp rather than use the
steps. Heyat’s counsel opposed the
motion, arguing Heyat’s Alzheimer’s disease rendered his deposition testimony
incompetent and other objective evidence showed Heyat was disabled when he
fell. The trial court denied the motion,
concluding “[t]he facts do not warrant a finding that the plaintiff’s remaining
cause of action is without factual and/or legal support, at least not at this point.â€
(Original italics.) The court noted
Heyat “appears [to] suffer from a variety of physical and mental problems†that
may affect “[t]he value of [his] deposition testimony,†but Heyat’s counsel
failed to provide admissible medical evidence on that issue. Consequently, the court explained, “If
[Heyat] intends to raise or rely on this issue in the future, the court will
require medical documentation of [Heyat’s] condition.â€
Defendants also moved for summary judgment on Heyat’s equal access
claim, arguing Heyat lacked standing to bring a claim under the Act because
(1) the access ramp at the resort’s pool complex provided Heyat with equal
access to the pool deck and he simply chose not to use it, and (2) Heyat’s
deposition testimony showed he was not disabled when he fell. Defendants also argued Heyat’s claim failed
because the resort’s pool complex and access ramp complied with all applicable
standards regarding access for disabled persons.
Heyat opposed the motion, arguing eyewitness testimony showed he was
disabled at the time he fell and the court should disregard his contrary
deposition testimony because of his Alzheimer’s disease. Heyat also argued Defendants denied him equal
access because the access ramp was hidden off to the side of the steps and
Defendants failed to post signs directing him to the ramp. According to Heyat, Defendants’ failure to
post directional signs violated accessibility standards.
The trial court granted Defendants’ summary judgment motion on the
ground Heyat lacked standing to pursue his claim for denial of equal
access. The court found Defendants met
their initial burden by showing Heyat was not disabled when he fell and Heyat
failed to present admissible evidence creating a triable issue of fact on
whether he was disabled. Based on these
findings, the trial court declined to discuss “the other issues†the parties
raised.
While Defendants’ summary judgment motion was pending, Heyat moved
to amend his complaint to add a cause of action for negligence per se based on
Defendants’ alleged failure to comply with 2001 California Building Code
provisions requiring signs identifying all access routes for disabled
persons. The trial court denied Heyat’s
motion to amend because (1) he unreasonably delayed bringing the motion
until one week before the hearing on Defendants’ summary judgment motion and
less than two months before trial; (2) Heyat failed to explain why he
did not bring the motion earlier; (3) granting the motion would prejudice
Defendants by rendering their summary judgment motion moot and requiring a
six-month trial continuance; and (4) Heyat’s proposed pleading failed to allege
facts stating a negligence per se claim.
The trial court entered judgment in Defendants’ favor based on its
summary judgment ruling and Heyat timely appealed.
II
Discussion
A. Heyat Lacks Standing to Seek Damages Under the Act
1. Summary Judgment Standard of Review
A defendant moving for summary judgment bears the initial burden to
show the plaintiff’s action has no merit.
(Teselle v. McLoughlin (2009)
173 Cal.App.4th 156, 168-169 (Teselle).) The defendant can meet that burden by either
showing the plaintiff cannot establish one or more elements of his or her claim
or there is a complete defense to the claim.
(Id. at p. 169; Code Civ. Proc., § 437c,
subd. (p)(2).) To meet this burden
the defendant must present evidence sufficient to show he or she is entitled to
judgment as a matter of law. (Eriksson
v. Nunnink (2011) 191 Cal.App.4th 826, 847-848 (Eriksson).)
Once the defendant meets that burden, the burden shifts to the
plaintiff to present evidence establishing triable issues exist on one or more
material facts. (Teselle, supra,
173 Cal.App.4th at pp. 168-169; Code Civ. Proc., § 437c,
subd. (p)(2).) A triable issue of
material fact exists “‘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.’ [Citation.]
Thus, a party ‘cannot avoid summary judgment by asserting facts based on
mere speculation and conjecture, but instead must produce admissible evidence
raising a triable issue of fact.
[Citation.]’ [Citation.]†(Dollinger
DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th
1132, 1144-1145 (Dollinger).)
On appeal from a summary judgment, we review the record de
novo. (Eriksson, supra,
191 Cal.App.4th at p. 848.)
“‘[I]n practical effect, we assume the role of a trial court and apply
the same rules and standards that govern a trial court’s determination of a
motion for summary judgment.’
[Citation.] ‘Regardless of how
the trial court reached its decision, it falls to us to examine the record de
novo and independently determine whether that decision is correct.’ [Citation.]
. . . The sole question
properly before us on review of the summary judgment is whether the judge
reached the right result
. . . whatever path he might have taken to get there, and we decide
that question independently of the trial court.
[Citation.]†(
126 Cal.App.4th 688, 694, original italics, fn. omitted;
‘. . . reviews the trial court’s ruling, not its rationale’â€].)
Here, the trial court concluded Heyat lacked standing because he was
not disabled when he fell on the steps at the resort’s pool complex. As explained below, we affirm the trial
court’s decision Heyat lacks standing on a ground Defendants raised below but
the trial court declined to reach.
Specifically, we affirm because the undisputed evidence and controlling
authorities establish Defendants did not deny Heyat equal access to or from the
pool complex.
Code of Civil Procedure section 437c, subdivision (m)(2),
requires an appellate court to provide the parties an opportunity to submit
supplemental briefs presenting their views before the court affirms an order
granting summary judgment on a ground not relied upon by the trial court.
an entire section comprised of several pages that address whether they denied
Heyat equal access under the Act.
Heyat’s reply brief expressly acknowledges the issue, but declined to
address it. Accordingly, we conclude
Code of Civil Procedure section 437c, subdivision (m)(2), does not apply
here because Heyat had a full and fair opportunity to brief the equal access
issue in this court, but failed to do so.
(See, e.g., Flores v. Enterprise
Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1072, fn. 10 [Code of
Civil Procedure section 437c, subdivision (m)(2), did not apply
because the appellants had the opportunity to address the ground on which the
appellate court affirmed, but the appellants failed to do so];
172 Cal.App.4th 445, 471, fn. 39 (Bains);
Byars v. SCME Mortgage Bankers, Inc.
(2003) 109 Cal.App.4th 1134, 1147, fn. 7.)
In construing an analogous Government Code provision that requires
an appellate court to allow supplemental briefing before deciding an appellate
issue the parties did not brief, the Supreme Court observed: “We do not suggest, of course, that the
parties have a right under [Government Code] section 68081 to submit
supplemental briefs or be granted a rehearing each time an appellate court
relies upon authority or employs a mode of analysis that was not briefed by the
parties. The parties need only have been given an opportunity to brief the issue
decided by the court, and the fact that a party does not address an issue,
mode of analysis, or authority that is raised or fairly included within the
issues raised does not implicate the protections of [Government Code] section
68081.†(People v. Alice (2007) 41 Cal.4th 668, 679, italics added;
see also Bains,
p. 471, fn. 39 [analogizing Code of Civil Procedure section 437c,
subdivision (m)(2), to Government Code section 68081].) Similarly, Code of Civil Procedure section
437c, subdivision (m)(2), is not implicated here because Heyat had an
opportunity to address the equal access issue but declined to do so.
2. Governing Principles Regarding Equal Access Claims Under the
Act
The Act is intended to ensure disabled persons “have the same right
as the general public to the full and free use†of facilities open to the
public. (§ 54, subd. (a);
Inc. (2007) 155 Cal.App.4th 254, 261 (Urhausen).) It declares,
“Individuals with disabilities shall be entitled to full and equal access, as
other members of the general public, to accommodations, advantages, facilities,
. . . and privileges of all . . . hotels, lodging places,
places of public accommodation, amusement, or resort, and other places to which
the general public is invited . . . .†(§ 54.1, subd. (a)(1).) For the Act’s purposes, “‘[f]ull and equal
access’ . . . means access that meets the standards of Titles II and
III of the Americans with Disabilities Act of 1990 (Public Law 101-336) and
federal regulations adopted pursuant thereto, except that, if the laws of this
state prescribe higher standards, it shall mean access that meets those higher
standards.†(§ 54.1,
subd. (a)(3); Urhausen, at
p. 261; see also § 54, subd. (c) [“A violation of the right
of an individual under the Americans with Disabilities Act of 1990 (Public Law
101-336) also constitutes a violation of this sectionâ€].) “‘Access’ refers not only to entry into a
building but, more broadly, to the use of all facilities made available for
general public use . . . .â€
(Urhausen, at p. 261.)
“The [Act] provides two distinct private causes of action to
individuals with disabilities. First,
individuals with disabilities who have been ‘aggrieved or potentially aggrieved
by a violation of Section 54 or 54.1’ can file an action ‘to enjoin the
violation.’ (§ 55.) . . . Second, individuals with disabilities can
file an action seeking ‘actual damages’ against ‘[a]ny person or persons, firm
or corporation who denies or interferes with [their] admittance to or enjoyment
of the public facilities as specified in Sections 54 and 54.1.’ (§ 54.3, subd. (a).)â€
Although both private rights of action require a plaintiff to be
disabled, standing to pursue an actual damages claim under section 54.3 is not
the same as standing to pursue an injunctive relief claim under section
55. (Reycraft,
supra, 177 Cal.App.4th at
p. 1221.) A disabled person has
standing to pursue an injunctive relief claim if he or she is merely
“‘potentially aggrieved’†by a defendant denying equal access, but that same
disabled person has standing to pursue a damages claim only if the defendant
actually denied him or her equal access on a particular occasion. (Id.
at p. 1224 [“standing under section 54.3 of the [Act] is established where
a disabled plaintiff can show he or she actually presented himself or herself
to a business or public place with the intent of purchasing its products or
utilizing its services in the manner in which those products and/or services
are typically offered to the public and was actually denied equal access on a
particular occasionâ€]; see also Urhausen,
supra, 155 Cal.App.4th at
pp. 262‑263; Donald v. Cafe
Royale, Inc. (1990) 218 Cal.App.3d 168, 183 (Donald) [“to maintain an action for damages pursuant to section 54 et seq. an individual must take the
additional step of establishing that he or she was denied equal access on a
particular occasion†(original italics)].)
In Donald, the Court of
Appeal provided the following example to illustrate the distinction in standing
to pursue the two types of private actions under the Act: “For example, let us take a restaurant that
is required to have 100 percent of its dining area accessible to the
handicapped, but in fact only 90 percent of the dining area meets this
standard. If a handicapped individual is
readily seated and served in the 90 percent primary dining area which meets all
handicap access requirements, then he or she would not have a cause of action
for damages for denial or interference with admittance pursuant to Civil Code
section 54.3, but an individual or a designated public agency could pursue an
action under one of the enforcement provisions to bring about full compliance
by the restaurant.†(
3. Heyat Lacks Standing to Recover Damages Under the Act
Because Defendants Did Not Deny Him Equal Access
The trial court granted Defendants’ summary judgment motion because
it found Heyat lacked standing to pursue his claim under the Act. Specifically, the trial court found Heyat’s
deposition testimony established he was not disabled as that term is used in
the Act, and Heyat failed to provide any admissible evidence to contradict that
testimony or otherwise create a triable issue of material fact on whether he
was disabled. Based on that ruling, the
trial court declined to reach the other grounds Defendants raised to support
their claim Heyat lacked standing. We
affirm the trial court’s decision Heyat lacked standing, but we reach that
conclusion based on a ground the trial court declined to reach because the
undisputed evidence and controlling authority on this issue overwhelmingly
supports summary judgment of Heyat’s claim.
Heyat based his sole remaining claim on Defendants’ failure to grant
him equal access to and from the resort’s pool complex. He did not seek injunctive relief to require
Defendants to correct any alleged violation of the governing accessibility
standards. Heyat therefore lacks
standing to pursue his claim unless Defendants actually denied him equal access
to the pool complex on a particular occasion.
(Reycraft,
p. 1224; Urhausen,
pp. 262-263; Donald,
p. 183.) Urhausen is directly on point and compels the conclusion Heyat
lacks standing to pursue his damages claim regardless of whether a triable
issue exists regarding his disability status.
Consequently, we need not reach the numerous evidentiary and other
issues the parties raise on whether Heyat was disabled, including the
admissibility of Heyat’s deposition testimony.
In Urhausen, the
plaintiff, who could not walk without crutches, parked her car at the
defendants’ drugstore parking lot. The
defendants provided two reserved parking spaces for disabled customers directly
in front of their store with an aisle, curb cutout, and ramp between the two
spots to provide access to the store’s entrance. Although the plaintiff had a parking placard
that allowed her to use disabled parking spots and the right-hand disabled spot
was vacant, the plaintiff parked in a spot immediately adjacent to the empty
disabled parking spot. (
As the plaintiff exited her car, she stood in the empty disabled
parking spot. Using her crutches, she
headed directly for the store’s entrance, which required her to travel
diagonally across the empty disabled parking spot and up the curb to the
sidewalk. She did not attempt to use the
disabled access aisle, curb cutout, or ramp between the two disabled parking
spots. Just a few inches before she
reached the curb, the plaintiff fell in the disabled parking spot and broke her
wrist. Later investigation showed the
last few inches of the parking spot greatly exceeded the allowable slope for a
disabled parking spot. The investigation
also showed the access aisle between the two disabled parking spots exceeded
the allowable slope. (
The plaintiff sued the defendants under the Act to recover damages,
alleging the defendants denied her equal access to their store because the
space where she fell did not comply with the governing accessibility
standards. The trial court granted
defendants summary judgment because the adjacent access aisle, curb cutout, and
ramp provided the plaintiff with a reasonable access route she could have used. The Court of Appeal affirmed, finding the
plaintiff lacked standing to seek damages under the Act because she could not
show the defendants denied her equal access.
(Urhausen,
p. 260.)
The appellate court in Urhausen
rejected the plaintiff’s argument she had standing because the parking spot’s
slope caused her to fall and thereby prevented her from entering the
store: “While we recognize that the
failure of the parking space to comply with slope requirements was the cause of
plaintiff’s injury, and therefore a cause of her failure to reach the entrance
of the drugstore, we do not believe that this is sufficient to demonstrate that
plaintiff was denied equal access to the store.
The phrase ‘denied equal access’ necessarily implies that either the
structure of the public facility, or some policy of its operator, precluded
equal access. It is undisputed, however,
that [the drugstore] provided access to its entrance by way of an aisle, curb cut,
and ramp installed for the particular use of the disabled. Because this means of access was at all times
available for plaintiff’s use, she cannot demonstrate that she was denied equal
access to the store without demonstrating that this route, too, was
inadequate. By her own acknowledgment,
however, she was fully capable of negotiating a typical disabled access
ramp. It was plaintiff’s injury, and not
the physical configuration of the store, that prevented plaintiff from
entering. Accordingly, she was not
rather, she was unable to enter as a
result of her fall.†(
omitted.)
The Urhausen court also
rejected the plaintiff’s contention she could recover damages because the
parking spot’s elevated slope did not comply with the governing accessibility
standards and caused the injury that kept her from entering the defendants’
store: “The purpose of section 54.3,
however, is not to provide a cause of action for disabled persons who have
suffered physical injury but to persons who have been denied the same access to
public facilities as persons without a disability. . . . ‘[T]he impediments to the physically
handicappeds’ interaction in community life is the inequity which
section 54 et seq. . . . seek[s] to prevent.’ [Citation.]
[¶] If plaintiff had attempted to
use the disabled access aisle, curb cut, and ramp and had fallen because these
were not in compliance with statutory requirements, she would presumably have a
cause of action under the [Act]. The
cause of action would not arise because plaintiff was injured, however, but
because her fall suggested that the store did not provide safe access for
disabled persons, thereby denying them equal access. In that situation, her injury would not be
the basis of the cause of action but would be evidence of a lack of equal
access. Here, in contrast, plaintiff did
not demonstrate that the means for disabled access provided by [the defendants]
was unsafe or otherwise unusable by her.
Because plaintiff did not demonstrate that she was denied equal access,
section 54.3 provides no remedy for her injury.†(Urhausen,
supra, 155 Cal.App.4th at
pp. 264-265, fns. omitted.)
Here, Defendants met their initial summary judgment burden by
showing they did not deny Heyat equal access to the resort’s pool complex. Defendants presented evidence establishing
they provided Heyat access to and from the pool complex by way of a ramp Heyat
acknowledged he was fully capable of using.
Specifically, Defendants presented photographs of the pool complex
showing the access ramp and its proximity to the steps where Heyat fell and the
path he traveled. Defendants also
presented two expert declarations by a State of California certified accessibility
specialist who inspected and evaluated the pool complex and its access
routes. The expert described the ramp
and the access it provided, and concluded the access routes to the pool
complied with applicable accessibility standards.
Because Heyat concedes Defendants provided an access ramp he could
have used to enter and exit the resort’s pool complex, Heyat must present
evidence showing the ramp did not provide him reasonable access if he is to
meet his burden of creating a triable issue.
(Urhausen,
p. 263.) Heyat, however, does not
make this argument. Instead, he contends
the ramp did not comply with the governing accessibility standards because the
ramp was too far away from the steps and Defendants failed to post signs
directing Heyat to the access ramp. This
argument fails to create a triable issue for several reasons, any one of which
prevents Heyat from defeating Defendants’ motion.
First and foremost, the ramp’s alleged noncompliance with the
governing accessibility standards does not provide Heyat with standing to
pursue a damages claim under the Act. To
establish standing to recover damages, Heyat must show the access ramp failed
to comply with the governing standards and
that failure actually denied him equal access on a particular occasion. (Urhausen,
supra, 155 Cal.App.4th at
p. 266.) In Urhausen, the plaintiff argued that, even if the access aisle, curb
cutout, and ramp provided her with an access route she could safely use, the
defendants nonetheless denied her equal access because that route failed to
comply with the governing standards regarding the slope of the parking spot and
access aisle. The Court of Appeal
rejected that argument, explaining the failure to comply with the governing
standards provided the plaintiff with standing to pursue an
defendants to comply with the standards, but not a damages claim. (Id.
at 265.) “[E]quat[ing] a denial of equal
access with the presence of a violation of federal or state regulations would
nullify the standing requirement of section 54.3, since any disabled
person could sue for statutory damages whenever he or she encountered
noncompliant facilities, regardless of whether that lack of compliance actually
impaired the plaintiff’s access to those facilities.†(Urhausen,
at p. 266.)
Heyat fails to demonstrate the lack of signs directing him to the
access ramp prevented him from safely entering and exiting the pool complex
when he fell. He concedes he safely used
the steps to enter the pool complex.
Moreover, he cites no evidence showing he was unaware of the ramp and
the access it provided to the pool deck.
Indeed, Heyat cannot present evidence showing the absence of signs
actually denied him access because
his counsel insists Heyat’s mental infirmities rendered him incompetent to
testify about his fall.
name="_ftnref6" title="">[6] Heyat offers his son’s
declaration and his wife’s deposition testimony stating they did not see the
access ramp, but that testimony sheds no light on whether Heyat saw the ramp or
whether he knew it provided access to the pool complex. Heyat must show Defendants
it is a subjective standard, not an objective standard. Without Heyat’s testimony, he cannot
establish the failure to post signs actually denied him equal access and
therefore he cannot create a triable issue to defeat Defendants’ motion.
Second, Heyat failed to present admissible evidence supporting his
contention signs directing him to the ramp were required because the ramp was
not readily visible. The photographs
both sides presented show the access ramp at the top of the steps leading to
the pool is readily visible just to the right of the steps. Heyat nonetheless contends the ramp “is
located approximately 40 to 50 feet to the far right, hidden out of
sight.†Heyat, however, fails to provide
any evidence to support his distance estimate or his conclusion the ramp is
hidden. The parties’ photographs show
the ramp is not hidden and Defendants’ accessibility specialist opines the ramp
provided an access route that fully complies with accessibility standards. Similarly, photographs of the ramp’s path
near the pool show the ramp provided a visible access route and, again,
Defendants’ accessibility specialist opined the route complied with all
governing standards. Heyat provides no
admissible evidence to rebut Defendants’ evidence or otherwise create a triable
issue of fact on whether the ramp was hidden.
His conclusions and argument regarding the ramp do not create a triable
issue. (See Uhrich v. State Farm Fire & Cas. Co. (2003)
109 Cal.App.4th 598, 616-617 [evidence, not argument, is required to
create a triable issue].)
Third, Heyat failed to show any applicable standard required
Defendants to post signs directing him to the access ramp. Heyat argues the 2001 California Building
Code required Defendants to provide directional signs, but he fails to
establish that code applied. Defendants
built the resort in the late 1990’s and opened it to the public in 2000,
regarding how the 2001 Code would apply to a facility built before that code
was adopted. Moreover, Defendants’
accessibility expert opined the California Building Code did not require
Defendants to provide directional signs and Heyat provides nothing to rebut
that expert opinion.
name="_ftnref7" title="">[7]
4. The Trial Court Had No Obligation to Reconsider Its Earlier
Ruling Denying Defendants’ Sanctions Motion Before Hearing Defendants’ Summary
Judgment Motion
Heyat contends the trial court erred in granting Defendants’ summary
judgment motion without first reconsidering its prior ruling denying
Defendants’ Code of Civil Procedure section 128.7 sanctions motion. Because the trial court denied the sanctions
motion on the ground Heyat did not lack legal or factual support for his equal
access claim, Heyat contends the trial court was required to give the parties
notice and an opportunity to be heard on whether the court should reconsider
its earlier ruling. Heyat is mistaken.
Defendants’ sanctions motion and their summary judgment motion are
separate motions presenting distinct issues.
The sanctions motion presented the question whether Heyat had legal and
factual support for his claim (Code Civ. Proc., § 128.7, subds. (b) &
(c)), while the summary judgment motion presented the question whether a
triable issue of material fact exists on Heyat’s claim (Code Civ. Proc.,
§ 437c, subd. (c)). Different
standards govern the two motions and Heyat fails to cite any authority to
support his contention the trial court cannot grant a summary judgment motion
without first reconsidering its denial of an earlier Code of Civil Procedure
section 128.7 sanctions motion.
Moreover, the parties presented different evidence on the two motions
and none of the briefing on the sanctions motion addressed Urhausen and whether Defendants actually denied Heyat equal access
on a particular occasion.
B. The Trial Court Did Not Abuse Its Discretion in Denying Heyat Leave to
Amend
While Defendants’ summary judgment motion was pending, Heyat moved
to amend his complaint to add a negligence per se claim. The trial court denied the motion because it
found (1) Heyat failed to explain his unreasonable delay in bringing the
motion; (2) granting the motion would unfairly prejudice Defendants; and
(3) Heyat’s proposed pleading failed to allege facts stating a negligence
per se claim. We find no error in the
trial court’s ruling.
“‘Leave to amend a complaint is . . . entrusted to the sound
discretion of the trial court.
“. . . The exercise of
that discretion will not be disturbed on appeal absent a clear showing of
abuse. More importantly, the discretion to be exercised is that of the trial
court, not that of the reviewing court.
Thus, even if the reviewing court might have ruled otherwise in the
first instance, the trial court’s order will yet not be reversed unless, as a
matter of law, it is not supported by the record.â€â€™ [Citations.]â€
(Branick v. Downey Savings &
Loan Assn. (2006) 39 Cal.4th 235, 242, original italics.)
Here, the record supports the trial court’s finding Heyat failed to
explain his unreasonable delay in bringing the motion to amend. He filed the motion well over a year after
commencing this action, and only after Defendants filed their summary judgment
motion. Heyat set his motion for hearing
just one week before the hearing on Defendants’ summary judgment motion and
less than two months before trial.
California Rules of Court, rule 3.1324(b) provides all motions to
amend must be supported by a declaration specifying “[w]hen the facts giving
rise to the amended allegations were discovered†and “[t]he reasons why the
request for amendment was not made earlier.â€
Heyat neither filed a declaration to support his motion nor otherwise
explained why he failed to seek leave to amend earlier. “‘“[E]ven if a good amendment is proposed in
proper form, unwarranted delay in presenting it may — of itself — be a valid
reason for denial.â€â€™â€ (
732, 746; see also P&D Consultants,
Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.)
Granting Heyat’s motion to amend in the face of his unexplained
delay would have prejudiced Defendants because it would have (1) rendered
Defendants’ summary judgment motion moot, and (2) required a significant
trial continuance to allow Defendants time to bring a demurrer challenging the
new pleading, conduct discovery on the new claim, and bring a new summary
judgment motion. According to Heyat, the
trial court could have avoided any prejudice to Defendants by delaying its
ruling on the motion to amend for one week until after the court ruled on
Defendants’ summary judgment motion.
Heyat, however, cites no evidence in the record showing he made that proposal
to the trial court. Moreover, he fails
to explain why granting his motion in the face of his unexplained delay would
not have prejudiced Defendants by requiring a significant trial continuance. (See Melican
v. Regents of University of California (2007) 151 Cal.App.4th 168, 175
[“appellate courts are less likely to find an abuse of discretion where, for
example, the proposed amendment is ‘“offered after long unexplained delay
. . . or where there is a lack of diligence . . .â€â€™â€].)
The record also supports the trial court’s finding Heyat’s proposed
pleading failed to allege facts stating a negligence per se claim. Although a trial court ordinarily will not
consider a proposed pleading’s validity when ruling on a motion to amend, the
court nonetheless has the discretion to deny leave to amend if the proposed
pleading fails to state a cause of action.
(Foxborough v. Van Atta (1994)
26 Cal.App.4th 217, 230; California
Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274,
278, overruled on other grounds in Kransco
v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407,
fn. 11.)
“‘[T]he doctrine of negligence per se is not a separate cause of
action, but creates an evidentiary presumption that affects the standard of
care in a cause of action for negligence.’
[Citation.]†(
(2009) 179 Cal.App.4th 549, 555.)
Specifically, Evidence Code section 669 creates a presumption of
negligence where a defendant “(1) . . . violated a statute,
ordinance, or regulation of a public entity; [¶] (2) The violation
proximately caused death or injury to person or property; [¶] (3) The
death or injury resulted from an occurrence of the nature which the statute,
ordinance, or regulation was designed to prevent; and [¶] (4) The person
suffering the death or the injury to his person or property was one of the
class of persons for whose protection the statute, ordinance, or regulation was
adopted.†Not every violation of a statute
or regulation, however, will give rise to a presumption of negligence; all four
elements must be established. (
Here, Heyat’s proposed pleading alleged Defendants violated the
2001 California Building Code by failing to provide signs directing disabled
persons to the access ramp in the pool complex and therefore he was unaware of
the ramp. He further alleged Defendants’
noncompliance with the Building Code was a substantial factor in causing his
fall. The trial court ruled Heyat’s
proposed pleading failed to allege facts giving rise to a presumption of
negligence because it failed to allege the third and fourth elements identified
above. We agree and Heyat fails to
challenge this aspect of the trial court’s ruling or otherwise explain how he
did or could allege a claim based on negligence per se.
Instead, Heyat simply contends the trial court abused its discretion
in denying his motion because California has a well-established “‘policy of
great liberality in permitting amendments to the complaint at any stage of the
proceedings . . . .’†(Atkinson
v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Although this statement is true in the
abstract, it fails to address the foregoing authorities and does not establish
the trial court abused its discretion. We
affirm the trial court’s decision denying Heyat’s motion for leave to amend.
III
Disposition
The judgment is affirmed.
Defendants shall recover their costs on appeal.
ARONSON,
J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
respondents are Marriott International, Inc., Marriott Ownership Resorts, Inc.,
and Newport Coast Villas Master Association.
We shall collectively refer to them as Defendants.
division 1 of the Civil Code, currently consisting of sections 54 to 55.3, is
commonly referred to as the ‘Disabled Persons Act,’ although it has no official
title.†(Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674,
fn. 8.) All statutory references
shall be to the Civil Code unless otherwise stated.
