Frontanez v.
Chan
Filed 1/17/13 Frontanez v.
Chan CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
ALMA
FRONTANEZ,
Plaintiff and
Appellant,
v.
TERENCE K. CHAN,
Defendant and Respondent.
B236870
(Los Angeles County
Super. Ct. No. BC411660)
APPEAL from a judgment of the Superior Court of
County. Gregory W.
Alarcon, Judge. Affirmed.
Law Offices of Ramin R. Younessi and
Sandeep G. Agarwal for Plaintiff and Appellant.
William R. Moore for Defendant and
Respondent.
Alma Frontanez (appellant) appeals
from an order granting respondent Terence K. Chan’s (respondent)
verdict (JNOV motion) following trial in this personal injury action. Appellant was injured when she stepped into
an uncovered water meter box on a public sidewalk on February 29, 2008. In granting respondent’s
JNOV motion, the trial court held that appellant failed to produce sufficient
evidence to show that respondent had a duty of care to inspect or cover the
water meter box or to warn of its hazards on the day that appellant fell. We affirm.
On February 29, 2008, appellant was walking to her residence on Brannick Avenue
in Los Angeles after grocery shopping. She
was walking with family members and pushing her own two-wheeled metal grocery
cart, which was full of groceries. As
she walked on the sidewalk in front of 443 Brannick Avenue (the Brannick property), she noticed a red pick-up truck in a
driveway blocking the sidewalk. As she
walked toward the street to cross to the other side, her left foot fell inside
an uncovered water meter. The City of Los Angeles (the
City) owns the sidewalk where appellant fell and the California Water Service
Company owns the water meter, box, and cover.
Appellant’s left leg fell into the
hole to just below her knee. She fell to
the ground and injured her low
back, waist, ribs, and her left leg.
After she fell, appellant’s sister
helped her up. About six to eight
individuals who were working at the Brannick property started yelling, “It’s
the City. It’s the City. It’s the City.†After appellant got up, the workers quickly
grabbed the cover to the water meter and covered it up. They also removed the truck that was blocking
the sidewalk.
About two to two and one-half hours
before the accident, appellant had walked with her sister and the grocery cart
through the exact same area and had not noticed any uncovered holes in the
sidewalk.
Appellant did not go to a medical
clinic until March
15, 2008.
The clinic sent appellant for X-rays, but she did not get them done at
the time because she did not have any money to pay for them. Instead, she went to see an attorney because
she could not pay for her medical expenses.
Appellant made no attempt to contact
the owner of the house next to the water meter where she fell. She was unaware of the identity of the owner
of the house, and she did not talk to anyone to try to get that
information. Nor did she contact any
representative of the City about the incident.
Appellant did not go into the property because she could tell that only
the laborers were there. She did not
speak to any of them.
Respondent is a professional structural
engineer. He also holds a contractor’s
license, and sometimes acts as a general contractor. In early February 2008, respondent obtained a
permit for construction work at the Brannick property. Respondent was to act as the general
contractor for an addition to the house.
Respondent was also the structural engineer for the job and drew up some
engineering plans for the project.
Respondent was present during three or four inspections of the
property. The workers were not present
at the time of the inspections.
Respondent did not manage or supervise any workers at the job site. Respondent never owned a red truck.
Respondent testified that he
obtained the permit on behalf of an individual named Alison Fung, who was the
project manager on the job. Fung did not
get the permit herself because she was not a licensed contractor. However, Fung drew up the plans for the
property and hired the subcontractors.
Appellant filed her complaint in
April 2009. She sued California Water
Service Co., the County of Los Angeles, Manuel and Eugenia Duran, Alison Fung, Rebeca Rivas, Pinnacle
Building Structure, and respondent. All
defendants except respondent were dismissed before trial.
Trial took place on June 15 and 16,
2011. After trial, the jury reached a
verdict of $39,500 in favor of appellant.
On July 5, 2011, respondent filed his JNOV motion pursuant to Code of Civil
Procedure section 629. Respondent argued
that there was no substantial evidence presented at trial which showed
respondent or any of the workers at the Brannick property uncovered the water
meter. Appellant’s case rested on the
possibility that the housing construction project involved plumbing work, and
that the speculative plumbing work involved shutting off the water. Further, since the housing construction may
have involved shutting off water to the house, appellant asked the jury to
infer that the construction workers were so incompetent as to shut off the
water using the main shut-off on the sidewalk rather than the shut-off valve at
the house. Appellant presented no
evidence that construction workers habitually or customarily remove water meter
covers. In sum, respondent argued that
appellant’s entire case rested on a series of mere possibilities and
conjectures, rather than substantial evidence.
The matter was argued on August 26, 2011. On the same date, the trial
court issued a ruling granting the defendant’s JNOV motion. The court reasoned that appellant failed to
produce sufficient evidence that respondent owed her a duty to inspect and
cover the water meter or warn of its hazards on the day that appellant
fell. Specifically, there was no
evidence that the workers did anything to indicate that they maintained,
possessed, or controlled the public sidewalk where appellant fell. Without a duty of care owed, the court
stated, there is no negligence as a matter of law.
On October 24, 2011, appellant filed her notice of appeal.
I. Standard of
review
“‘“A motion for judgment
notwithstanding the verdict of a jury may properly be granted only if it
appears from the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence to support the
verdict. If there is any substantial
evidence, or reasonable inferences to be drawn therefrom, in support of the
verdict, the motion should be denied.â€
[Citation.]’†(
Cal.3d 865, 878.)
In the appellate court, “[a]s in the
trial court, the standard of review is whether any substantial evidence --
contradicted or uncontradicted -- supports the jury’s conclusion. [Citations.]â€
(Sweatman v. Department of
Veterans Affairs (2001) 25 Cal.4th 62, 68.)
In reviewing the evidence provided
by appellant at trial, we must view the evidence in the light most favorable to
the appellant, and indulge in every legitimate inference which may be drawn
therefrom. (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1710 (Hamilton).)
II. The law of
negligence
In order to prove negligence, a
plaintiff must establish three elements:
(1) a legal duty to use due care; (2) a breach of such legal duty; and
(3) the breach as the proximate cause of the resulting injury. (United
States Liability Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586,
594.)
Negligence may be established by
“nothing more than one or more inferences which may be said to arise reasonably
from a series of proven facts.†(
176 Cal.App.2d 694, 699 (Sparks).)
The key issue in this matter is
whether respondent owed a legal duty to appellant. We must determine whether the evidence
offered in support of plaintiff’s position that respondent owed a legal duty to
appellant is sufficient to support a judgment for the plaintiff. This is a question of law. (Hamilton,
supra, 6 Cal.App.4th at p. 1710.)
III.
Appellant’s evidence of the existence of a legal duty was insufficient
as a matter of law
A duty to take reasonable measures
to protect people on land from danger does not only arise when the defendant
owns the land on which the dangerous condition exists. A defendant who lacks title to property
“still may be liable for an injury caused by a dangerous condition on that
property if the defendant exercises control over the property.†(Alcaraz
v. Vece (1997) 14 Cal.4th 1149, 1158 (Alcaraz).)
Appellant asserts that respondent
exercised substantial control over the private property adjacent to the water
meter. Respondent was the one who pulled
a permit for the work being done on the home.
He also drew up plans for the project, and went to the property on at
least three occasions while someone from the City performed inspections. Further, appellant argues, it was one of the
workers on the adjacent property who covered the water meter with its manhole
cover after plaintiff got up and removed her foot from the hole.
Appellant argues that this evidence
meets the standard set forth in Alcaraz,
cited by the trial court. In that case,
the plaintiff was injured when he stepped into an uncovered water meter box
located in the lawn in front of the rental property of which he was a
tenant. (Alcaraz, supra, 14 Cal.4th at p. 1152.) He sued his landlords, but the superior court
granted summary judgment in favor of the landlords because the water meter box
was located within a strip of land that was owned by the city. (Ibid.)
The Court of Appeal reversed the
summary judgment, finding that there were triable issues of fact as to whether
the landlords “exercised control over that land and thus had a duty to protect
or warn plaintiff.†(
1157.) The court explained: “‘“[T]he duties owed in connection with the
condition of land are not invariably placed on the person [holding title] but,
rather, are owed by the person in possession of the land [citations] because
[of the possessor’s] supervisory control over the activities conducted upon,
and the condition of, the land.â€â€™
[Citations.]†(
As the Alcaraz court pointed out, whether the defendant landlords
exercised control over the land was a question of fact. (Alcaraz,
supra, 14 Cal.4th at p. 1157.)
Evidence was introduced that established that the defendants maintained the
lawn that covered the strip of land owned by the city and that, following the
plaintiff’s injury, the defendants constructed a fence that enclosed the entire
lawn, including the portion located on the narrow strip of land owned by the
city. (Id. at pp. 1161-1162.) Given
this evidence, the Alcaraz court
concluded, a reasonable trier of fact might determine that the defendant
landlords exercised control over the strip of land owned by the city. (Id. at
p. 1162.)
The evidence produced by appellant
in this matter regarding respondent’s control of the public sidewalk
surrounding the water meter does not equate to the evidence discussed in
Respondent is an individual who was involved in certain aspects of a
construction project on the private property adjacent to the public
sidewalk. Even assuming that
respondent’s actions as general contractor for this project were sufficient to
establish respondent’s control of the adjacent privately owned land, the real issue
in this case is whether respondent had control of the public sidewalk where
appellant fell. Respondent cannot be
“‘liable merely because [his] property exists next to adjoining dangerous
property.’†(Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578,
1590.) The defendant must exercise
control over the land containing the dangerous condition. (See, e.g., Jones v. Deeter (1984) 152 Cal.App.3d 798, 803 [“the abutting
property owner is not liable in tort to travelers injured on the sidewalk,
unless the owner somehow creates the injurious sidewalk conditionâ€].)
As set forth above, there was
evidence in Alcaraz that the
landlords in fact exercised control over the narrow strip of city land. They maintained the lawn on that strip of
land, and later enclosed the land with a fence, thereby asserting further
control. As the Alcaraz court pointed out, a reasonable trier of fact could
conclude that the defendant landlords “treated the land surrounding the meter
box . . . as an extension of their front lawn.â€
(Alcaraz, supra, 14 Cal.4th at
pp. 1161-1162, fn. omitted.)
There is no similar evidence in the
matter before us. There is no evidence
that respondent ever maintained the public property containing the water meter,
fenced it in, or treated it as an extension of the private land at the Brannick
property. There was no evidence that
respondent, or any of the construction workers present at the property, did
anything to indicate that they maintained, possessed or controlled the public
sidewalk, or ever even touched the water meter or the surrounding city-owned
property prior to the time that appellant fell.
Because there was no evidence that
respondent owned, possessed, or controlled the city sidewalk where appellant
fell, respondent is not liable for negligence as a matter of law.
IV. The
inferences suggested by appellant do not constitute substantial evidence of
control
Appellant argues that the elements
of negligence may be established by inference.
In support of this argument, appellant cites Sparks, supra, 176 Cal.App.2d at page 699, in which it was held:
“Negligence may be established by circumstantial evidence, which is
nothing more than one or more inferences which may be said to arise reasonably
from a series of proven facts. [¶] A plaintiff relying on circumstantial
evidence does not have to exclude the possibility of every other reasonable
inference possibly deriving from the evidence.
[Citations.] We must assume the
truth of plaintiff’s evidence and every inference of fact which reasonably may
be drawn therefrom.â€
Appellant insists that the jury
could have relied on certain inferences in concluding that respondent exercised
control over the area around the water meter.
First, appellant points to evidence
that, upon seeing appellant fall into the opening containing the water meter,
the workers on the private property adjacent to the water meter began yelling,
“It’s the City. It’s the City.†Appellant argues that the jury was permitted
to view this evidence as “intentional misdirection.†In other words, appellant argues, the jury
“was free to make a credibility determination and interpret those statements as
evidence that the workers knew full well that they were responsible for the
absent manhole cover and were trying to shift the blame to someone else.†Appellant argues that this is a reasonable
inference, therefore the JNOV motion should have been denied.
This inference is insufficient to
establish respondent’s control of the water meter because it is based on pure
speculation. In order to constitute
substantial evidence, inferences “‘must be “a product of logic and reason†and
“must rest on the evidence†[citation]; inferences that are the result of mere
speculation or conjecture cannot support a finding [citations].’ [Citation.]â€
(Kasparian v. County of Los
Angeles (1995) 38 Cal.App.4th 242, 260 (Kasparian);
see also Casetta v. United States Rubber
Co. (1968) 260 Cal.App.2d 792, 799 [“the evidence produced by plaintiff
must support a logical inference in his favor, sufficient to raise more than a
mere conjecture or surmise that a fact is as allegedâ€].) Appellant’s suggestion that the jury inferred
that the contractors trumpeted the City’s liability due to their own guilty
consciences is “mere guesswork,†and is therefore “insufficient to support a
judgment.†(People v. Massie (2006) 142 Cal.App.4th 365, 369.)
Next, appellant points out that the
workers on the adjacent property replaced the cover on the water meter box
after appellant fell. Appellant argues
that the jury could have made several different inferences from this fact. One possible inference is that the workers
were simply good Samaritans who didn’t want to see anyone else get hurt. However, another possible inference is that,
when they replaced the manhole cover, the workers knew full well that they were
not interfering with anyone else’s work.
In other words, appellant argues, the jury was free to make the
inference that the workers were the ones who removed the manhole cover in the
first place.
Again, we find that this proposed
inference is not a product of logic or reason.
(See Kasparian, supra, 38
Cal.App.4th at p. 260.) Simply because
the workers on the property took measures to cover the manhole after appellant
fell in does not lead to the logical conclusion that they were the ones who
uncovered it. In the absence of any
evidence that the construction project on the home involved plumbing, or other
work involving the water system, it is unreasonable to infer that the workers
removed the manhole cover or ever even touched it prior to the time that
appellant fell. The jury was required to
make too large of a leap to find that, because the workers covered the hole
after the accident, they must have uncovered it in the first place.
“‘[I]f the word “substantial†[is to
mean] anything at all, it clearly implies that such evidence must be of
ponderable legal significance. Obviously
the word cannot be deemed synonymous with “any†evidence. It must be reasonable . . . ,
credible, and of solid value . . . .’
[Citation.]†(
not reasonable, nor are they “‘a product of logic and reason.’†(Ibid.) Under the circumstances, the trial court did
not err in granting respondent’s JNOV motion.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We concur:
___________________________, Acting P. J.
DOI TODD
___________________________, J.
ASHMANN-GERST
name="_ftn1" title="">[1] As the general contractor for the house
construction project adjacent to the public sidewalk at issue, respondent had a
“‘general duty imposed by law to use reasonable care to prevent damage to
persons whom he may reasonably expect to be affected by his work.’†(Chance
v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 378.) Thus, respondent would be liable not only for
his own negligence on the construction project but also the negligence of the
workers. (Id. at pp. 377-378.)
name="_ftn2" title="">[2] We also reject appellant’s argument
that the jury may have noted that respondent failed to call as witnesses any of
the laborers present at the Brannick property on that day, who presumably had
knowledge of the City’s liability. It
was appellant’s duty to establish each element of the tort of negligence. Respondent’s failure to call certain
witnesses cannot relieve appellant of her obligation to establish the necessary
element of duty.
