Williams v. State of
Filed 3/29/13 Williams v. State of California CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
LISA WILLIAMS et al.,
Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA,
Defendant and Respondent.
G046659
(Super. Ct. No. 30-2010-00390305)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Gregory H. Lewis, Judge. Reversed and remanded.
Bailey & Partners,
Patrick E. Bailey and Keith A. Lovendosky for Plaintiffs and Appellants.
Kamala D. Harris,
Attorney General, Steven M. Gevercer, Assistant Attorney General, and Paul T.
Hammerness, Deputy Attorney General, for Defendant and Respondent.
* * *
Plaintiffs Lisa
Williams, as guardian ad litem for A.W., and Jennifer Eslinger, as guardian ad
litem for A.E., sued defendant State
of California for
injured at Huntington State
Beach (beach) because of a
dangerous condition. After the court granted
defendant’s motion in limine excluding evidence plaintiffs claimed showed
defendant had notice of the dangerous condition, the parties ultimately
stipulated to a nonsuit because, without that evidence, plaintiffs were unable
to prove one of the elements of their case.
Plaintiffs appeal, claiming the court erred in excluding that evidence
and in preventing their expert from relying on it in his testimony. We conclude the court relied on an incorrect
standard in excluding the evidence and erred when it ruled the expert could not
testify that he had relied on that evidence in forming his opinions. We reverse the judgment and remand for the
court to reconsider the motion in limine in light of the proper standard.
FACTS AND PROCEDURAL HISTORY
The first amended
complaint alleges plaintiffs A.W., then 13 years old, and A.E., then 2 years
old, were seriously burned in a fire ring located at the beach, controlled and
supervised by defendant. Plaintiffs
plead there were hot coals hidden under sand in the fire ring. According to the declaration of Joseph
Milligan, defendant’s beach superintendant, filed in support of defendant’s
motion for summary judgment, the concrete fire rings at the beach, which are
about 60 inches wide, contain four-and-a-half inches tall red lettering on the
outside, stating “Caution Hot Ashes†(capitalization omitted). In her deposition, Williams, the mother of
A.W., who was with her at the beach, testified she did not see the warnings on
the fire pit in question because sand was pushed up around the edges of the
ring. She also stated she saw no
warnings on any of the approximately two dozen pits in the vicinity.
After spending several
hours at the beach, Williams, who had her back to the fire ring, heard A.E.
scream and saw him inside the ring. She
then saw A.W. jump into the ring and then jump out, screaming that her foot was
burned. Williams and another person
pulled A.E. from the pit. The minors
were burned by hot coals remaining from a prior fire; sand had covered the coals.
Plaintiffs filed claims
with defendant, stating the fire pit was a dangerous condition without any
warning. They further stated the fire
ring “was almost totally submerged in the sand so as to create a hidden danger
and dangerous condition so as to allow a 2-year old to get
into . . . [it]. The
‘fire ring’ (capitalization omitted) was filled with sand and did not appear to
be hot.†When the claims were denied,
plaintiffs filed a complaint based on causes of action for premises liability
and dangerous condition of public property.
After the court sustained defendant’s demurrers to the premises
liability causes of action in the original and first amended complaint with
leave to amend, plaintiffs dismissed the premises liability count
and the only remaining cause of action alleged a dangerous condition of public
property.
During discovery
defendant produced approximately 20 reports of prior accidents involving fire
rings at the beach over the last 10 years.
In motion in limine No. 2, defendant sought to have the reports excluded
on the grounds they were hearsay and the underlying incidents were not similar
enough so as to put defendant on notice of a dangerous condition. It also argued they were more prejudicial
than probative under Evidence Code section 352.
The court held an
began going through each of the 20 or so incident reports, pointing out why
they should be admitted. With each, the
court noted it was not the same or similar because there was a warning visible
and there was no sand covering the ashes.
The court contrasted these incidents with the one at issue, noting the
language on the claim forms attached to the first amended complaint stated the
fire pit was filled with sand, making the dangerous condition unseen, and the
warning was obscured.
The court also inquired
as to whether plaintiffs had deposed or interviewed the victims of the prior
incidents or the officers who had taken the reports. When counsel answered he had not, the court
commented that plaintiffs had no first-hand knowledge of the incidents.
The court then directed
counsel to review all the reports and discuss only those where the incidents were
the same or similar. After a recess,
plaintiffs identified six reports. After
reviewing each of the six, with argument by both lawyers, the court granted the
motion, finding the incidents were not the same or similar and there was
inadequate foundation for them based on failure to take statements or depose
the victims or the officers who took the reports.
Plaintiffs then made an
offer of proof in the form of an opening statement, that included mention of
the reports, had they been allowed.
Defendant made a motion for nonsuit.
During a colloquy before argument on the motion, plaintiffs stated that,
based on the court’s grant of motion in limine No. 2, they would be unable to
prove notice of the dangerous condition, an essential element of their case. After the court denied the nonsuit,
plaintiffs stipulated to a nonsuit based on the same ground, inability to prove
notice. Defendant joined the
stipulation, which the court granted.
Judgment was entered for defendants.
DISCUSSION
Similarity of Prior Incidents
To prevail on a cause of
action for damages for a dangerous condition on public property, a plaintiff
must prove the existence of the dangerous condition that proximately caused the
injury, that the risk of that type of injury was reasonably foreseeable, and
that the public agency had either actual or constructive notice of the
condition sufficiently ahead of time that it could have taken corrective
measures. (Gov. Code, § 835;
(2001) 26 Cal.4th 63, 68.) Plaintiff
sought to rely on the prior incident reports to prove the element of notice.
“The
admissibility of evidence of prior accidents is confined to the trial court’s
sound discretion. [Citation.]†(Cordova
v. City of Los
Angeles (2012) 212 Cal.App.4th 243, 254.) But “[b]efore evidence of previous injuries
may be admitted on the issue of whether or not the condition as it existed was
in fact a dangerous one, it must first be shown that the conditions under which
the alleged previous accidents occurred were the same or substantially similar
to the one in question.
[Citations.] The strictness of
this requirement of similarity of conditions is ‘much relaxed,’ however, when
the purpose of the offered evidence is to show notice, ‘since all that is
required here is that the previous injury should be such as to attract the
defendant’s attention to the dangerous situation which resulted in the
litigated accident.’ [Citations.]†(Laird
v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220; see also
202 Cal.App.3d 221, 228.)
In disallowing admission
of the incident reports for any purpose, the trial court emphasized the
necessity that the incidents be the same or substantially similar to the one at
issue here. Based on the comments and
discussion at the hearing on the motion, the court did not consider the
“relaxed†standard used for the purpose of proving notice, i.e., that the prior
injuries “‘should be such as to attract the defendant’s attention to the dangerous
situation.’†(Laird v. T. W. Mather, Inc.,
supra, 51 Cal.2d at p. 220.) A
minimum of nine times, the court remarked that the incidents were not the same
or substantially similar. In one of its
comments it stated, “show me one of these that is covered with sand where
somebody stepped into it, not knowing that there was hot ashes because is was
covered with sand.†In ruling on the
motion the judge stated, “I don’t find that anything that you have called to
the court’s attention were the same or similar.â€
In so doing the court
relied in part on Sambrano v. City of San
Diego (2001) 94 Cal.App.4th 225.
This case underpins defendant’s argument here as well. In that case a two year old at the beach
walked into a fire pit that contained hot coals and burned herself. In opposing a motion for summary judgment,
the plaintiffs sought to introduce a report of a prior incident where a child
who was dragging a boogie board had tripped and fallen into a fire ring. The court excluded the report, ruling it was
not the same or substantially similar.
And the appellate court affirmed.
(Id. at p. 244.)
But Sambrano can be distinguished.
In Sambrano the plaintiff
proffered only one prior incident primarily to prove a dangerous
condition. (Sambrano v. City of San Diego, supra, 94 Cal.App.4th at pp.
233-235, 238), and the court ruled it did not satisfy the same or substantially
similar rule. (Id. at p. 238.) As far as
using it to show notice, the court reiterated the relaxed notice standard. (Id.
at p. 237.) Ultimately the court ruled
the plaintiff had not shown the defendant was on notice of the alleged
dangerous condition (id. at p. 243)
but stated “evidence of truly similar accidents could have created triable
issues to defeat summary judgment†(ibid.).
While the trial court
here thoroughly discussed the incident reports and gave plaintiffs every
opportunity to present evidence in defense against the motion in limine in
evaluating the reports the court did not use the correct standard. As shown by its comments detailed above it
required the prior incidents be essentially identical to the one in question, a
much stricter standard than that used to evaluate notice. “‘“[T]he scope of discretion always resides
in the particular law being applied, i.e., in the ‘legal principles governing
the subject of [the] action . . . .’ Action that transgresses the confines of the
applicable principles of law is outside the scope of
discretion . . . .â€â€™â€
(Thayer v. Wells Fargo Bank
(2001) 92 Cal.App.4th 819, 833; see Fasuyi
v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695 [discretion must be
“‘“‘guided and controlled in its exercised by fixed legal
principles’â€â€™â€].)
We do not know what the
court’s ruling on motion in limine No. 2 would have been had it relied on the
the more relaxed standard used in connection with whether the incidents gave
notice to defendant. Therefore, we will
remand the matter to the trial court for another hearing on the use of the
reports. In that hearing the court
should examine the reports in light of the standard applicable to the notice
issue.
Defendant disputes
plaintiffs’ claim they wish to use the incident reports for purposes of notice
only, pointing out that in their trial brief they sought to have them admitted
for purposes of showing the existence of a dangerous condition. But that is not plaintiffs’ argument
here. In their briefs, plaintiffs assert
only that they seek to have the reports introduced for the purpose of showing
notice.
to show a dangerous condition, they have not made such an argument and so it is
waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Defendant also contends
the reports are not admissible because they are hearsay. But their relevance on the notice issue is
not dependent upon their truth.
“Documents not offered for the truth of the matter asserted are, by
definition, not hearsay.†(
301, 316.) So this is not a proper basis
for exclusion.
Likewise, defendant’s
very brief, one paragraph argument the reports should be excluded under
Evidence Code section 352 is not well taken. Again, defendant asserts that it would be
more prejudicial than probative to admit the documents to show a dangerous condition. But that is not the issue before us.
Expert Testimony
Defendant also made a
testimony of defendant’s expert witness, Brad Avrit. It argued that because the incident reports
could not be used to show notice, Avrit was not needed to testify to anything
else. The court determined Avrit should
be voir dired before it decided the motion, and this was done before the jury
was selected. Avrit testified defendant
had sufficient notice of the cause of the injuries based on “[p]rior lawsuits
and prior incidents.†The court ruled
Avrit could testify, but he could not mention or use “in any way, shape or
form†the prior incident reports during his testimony because the incidents
were not the same or similar. Plaintiffs
assert this was error and argue Avrit should be able to testify to his reliance
on the incident reports to show notice.
Under Evidence Code section 801,
subdivision (b) an expert may rely on inadmissible evidence so long as it “is
of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his [or her] testimony
relates . . . .â€
Evidence Code section 802 permits him to testify to “the reasons for his
[or her] opinion and the matter . . . upon which it is
based . . . .â€
“However, the witness ‘may not testify as to the details of such matters
if they are otherwise inadmissible. [Citations.]’†(Genrich
v. State of California, supra,
202 Cal.App.3d at p. 229, italics added.)
As noted in
Code section 802 does not prohibit Avrit from testifying about his
reliance on the reports. In reaching
that conclusion, Genrich relied on
(1985) 174 Cal.App.3d 831, where an expert was permitted to testify about
consumer complaints the defendant had received.
Even though the complaints themselves were thus not admitted because
they were hearsay, the expert was allowed not only to describe the complaints,
but also to read portions of the reports.
The court told the jury the testimony should be considered only to
decide whether the defendant had notice.
(Genrich v. State of California,
seeks to have Avrit use the reports as the basis for testifying about
notice.
DISPOSITION
The judgment is
reversed. The matter is remanded for the
trial court to hold a hearing, using the relaxed standard set out in this
opinion, on the admission of any of the prior incident reports for purposes of
showing defendant had notice of the alleged dangerous condition. When plaintiffs’ expert testifies, he or she
shall be entitled to rely on the prior incident reports in a manner consistent with
this opinion. Plaintiffs are entitled to
costs on appeal.
THOMPSON,
J.
WE CONCUR:
FYBEL, ACTING P. J.
IKOLA, J.
dismissed despite the absence of anything in the record.
opposition to defendant’s claim the reports are hearsay, that if the documents
were hearsay and they wanted to use them, the reports qualified for admission
as business records under Evidence Code sections 1271 and 1272. We decline to address this argument raised
for the first time in the reply brief. (
Cal.App.4th 1365, 1387-1388.)
