Bates v. Buratti

Filed 9/8/08 Bates v. Buratti CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment and order of the Superior Court of Los Angeles County. Barbara M. Scheper, Judge. Affirmed.

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Law Offices of Alfred O. Anyia and Alfred O. Anyia for Plaintiff and Appellant.

Procter, Slaughter & Reagan, Becky R. McCarthy and Gabriele M. Lashly for Defendant and Respondent Richard A. Buratti.

Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Respondent Joseph M. Messina and Florence F. Messina.

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After a bench trial in this slip-and-fall case, the court granted the defendants motions for judgment under Code of Civil Procedure section 638.1 on the grounds that plaintiffs evidence did not establish that the defendants owed plaintiff a duty to maintain the allegedly defective sidewalk or to warn of the hazard it presented. The court also entered an order forfeiting plaintiffs jury fees deposit. We affirm the judgment and the order.

FACTS AND PROCEEDINGS BELOW

Bates alleged that in July 2003, as she left an office building in Northridge, one of her boots caught on a raised slab on the sidewalk in front of the building causing her to trip and fall. She claims that she suffered physical and emotional injury, pain, and suffering as a result of the accident. Bates brought this negligence action against the Messinas, whom she alleged owned the office building, and Buratti, a ground floor tenant in the building, alleging defendants had a duty to maintain the sidewalk and keep it safe for pedestrians and to warn pedestrians of any known dangerous conditions.

The case was tried to the court. After her opening statement, the court asked Bates what evidence she had to prove that the Messinas owned the building at the time of the accident or that Buratti owed Bates an obligation to maintain the sidewalk in front of the building. Bates produced a certified copy of a deed showing the Messinas owned the property in 1991 and a declaration by Buratti stating that he commenced leasing space in the property from Joseph Messina in 1982 and that after the lease expired in 1999 he continued to rent the space as a month-to-month tenant. The court took judicial notice of the deed and Burattis declaration. Bates did not offer Burattis lease into evidence. Nor did she offer any other evidence on these issues.

The Messinas and Buratti moved for judgment under Code of Civil Procedure section 631.8^[1] on the ground that Bates failed to introduce sufficient evidence to prove either of them had an obligation to maintain the sidewalk adjacent to the building. The trial court granted the motion. With respect to the Messinas, the court stated that the deed dated in 1991 was no[t] evidence that . . . the Messina defendants were still the owners or otherwise in control of the property at the time of the accident. With respect to Buratti, the court found that his declaration did not contain any evidence that he had a duty to maintain the sidewalk.

The court entered judgment for the defendants and Bates filed a timely appeal.

DISCUSSION

I. JUDGMENT FOR THE MESSINAS.

The trial court and the parties referred to the defendants motions as motions for nonsuit but they were actually motions for judgment under section 631.8.^[2] Unlike a motion for nonsuit, in which the court must resolve all reasonable inferences in the plaintiffs favor, on a motion for judgment under section 631.8 the court, as trier of fact, may draw such inferences as it deems reasonable. (Greening v. General Air-Conditioning Corp. (1965) 233 Cal.App.2d 545, 551.)

In order for Batess evidence to establish that the Messinas owned the building at the time of the accident, the court would have to draw an inference that because the Messinas owned the building in 1991 they owned it in 2003. The court declined to draw that inference. Although the court reasonably could have drawn that inference, we cannot say as a matter of law that it was unreasonable for the court not to draw the inference.

On appeal, Bates contends the trial court prevented her from presenting sufficient evidence of the Messinas ownership of the building at the time of the accident through the testimony of the Messinas, Dr. Warr, her treating physician who maintained an office in the building, and certain photographs. We find no merit to these contentions. The Messinas failed to appear at trial because the court ruled they were not required to do so by the notice Bates served on them under Code of Civil Procedure section 1987, subdivision (a). We need not decide whether the court erred in its ruling because Bates has not established prejudice by showing that either of the Messinas would have testified that they owned the building at the time of the accident. Bates elected not to call Dr. Warr on the issue of ownership even after the court warned her that failure to do so could result in a nonsuit. The photographs to which Bates refers do not establish the Messinas ownership of the building on the day of the accident.

II. JUDGMENT FOR BURATTI.

We have reviewed Burattis declaration and agree with the trial courts finding that it contains no evidence that Buratti had an obligation to maintain the sidewalk in front of his office or warn of hazards it presented.

Because we affirm the judgment based on the insufficiency of Batess evidence that the Messinas owned or controlled the building at the time of the accident and that Buratti had a duty to maintain the sidewalk, we do not address Batess contentions regarding pleading and discovery rulings and pretrial rulings regarding witnesses and evidence. These rulings are unrelated to the question of the ownership of the building or Burattis duty to maintain the sidewalk and, even if resolved in Batess favor, would not have changed the result of the trial.

III. REFUND OF JURY FEES.

Bates contends the court erred in forfeiting the jury fees she posted prior to trial. We disagree.

The rules of the Los Angeles Superior Court provide, in relevant part: If a trial does not proceed on the date set because the . . . party demanding the jury trial waives the jury, and there has been insufficient time to notify the jurors, any advance jury fee deposited by a party . . . who has waived the jury, and any additional sum necessary to reimburse the court for jury fees and mileage due for that day shall be forfeited, unless the Court for good cause orders otherwise, in those cases in which the Jury Commissioner or his/her designated representative at the court location is not notified by 2:00 p.m. of the court day preceding the trial date, that the prospective or impaneled jurors summoned and/or directed to appear for the following court day, will not be needed for the trial of the action. (Super.Ct. L.A. County, Local Rules, rule 5, subd. (e).)

The record does not show that Bates requested a refund of jury fees. Even assuming she did request a refund, she has not explained why the court erred in denying her request. Her entire argument on the issue is that good cause existed for the refund.

DISPOSITION

The judgment and order are affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

NEIDORF, J.^*

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^[1] All statutory references are to the Code of Civil Procedure. We discuss section 631.8 below.

^[2] Section 631.8, subdivision (a) states in relevant part: After a party has completed his presentation of evidence in a trial by the court, the other party . . . may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party[.]

^* Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.