Albillo v. Ports O'Call Restaurant Corp. CA2/4 ( 2015 )

Filed 9/16/15 Albillo v. Ports O’Call Restaurant Corp. CA2/4
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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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
OSCAR ALBILLO et al., B257293
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. NC044391)
v.
PORTS O’CALL RESTAURANT
CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
P. Vicencia, Judge. Affirmed.
Blumberg Law Corporation, Ave Buchwald and John P. Blumberg for Plaintiffs
and Appellants.
Bremer Whyte Brown & O’Meara, Joshua D. Bordin-Wosk; Law Office of
Priscilla Slocum and Priscilla Slocum for Defendant and Respondent.
This appeal arises from a nonsuit in favor of respondent Ports O’Call Restaurant
Corporation (POC) in a slip and fall action brought by appellants Oscar and Blanca
Albillo (the Albillos1). Oscar Albillo’s fall occurred at the Asian Entry Statement, which
provided access into the Pan Pacific Village portion of the Ports O’Call Village in San
Pedro. POC leased the property from the City of Los Angeles; it was later subleased or
assigned to a series of entities, the last of which were subtenants Sam and Sung Cho (the
Chos). The Albillos named only POC as a defendant; the Chos were not named. The
primary issue on appeal is whether the trial court erred by granting POC’s motion for
nonsuit based on its determination that 1) the Chos, not POC, had possession and control
over the location where Oscar fell; and 2) the Albillos therefore were required to prove
that POC had actual notice of the dangerous condition that caused Oscar’s fall as part of
their case-in-chief.
In addition to raising this legal issue, the Albillos also contend that the court erred
in granting the nonsuit based on testimony and documentary evidence that was not placed
before the jury in their case-in-chief. Instead, the trial court recessed the trial and heard
additional evidence outside the presence of the jury on the issue of possession and
control, as well as the standard of duty applicable to POC.
Given the unusual procedural posture of this case, we find the court did not err in
considering the additional evidence relating to the legal issue of POC’s duty during the
hearing on the motion for nonsuit. The issue of POC’s duty of care was for the court, not
the jury, to determine. We also conclude the trial court correctly determined that the
Chos had possession and control of the location of Oscar’s fall, which required the
Albillos to prove that POC had actual notice of the dangerous condition. We further
agree with the trial court’s determination that the Albillos did not present evidence of
POC’s actual notice from which a reasonable jury could find in their favor. We therefore
affirm the judgment.
1
We sometimes refer to the Albillos by their first names for the sake of clarity.
No disrespect is intended.
2
FACTUAL AND PROCEDURAL SUMMARY
A. The Premises
In 1976, the City of Los Angeles (City) leased vacant land to POC in the San
Pedro Harbor. The leased premises run from the water on the east side to Nagoya Way, a
City street, on the west. The Master Lease defined the “Demised Premises” by
enumerated parcels, including those relevant to this appeal (parcels 13 and 21A), as
depicted on a Harbor Map attached to the lease as Exhibit A (hereafter “Exhibit A”).
Section 7 of the Master Lease, which addresses use of the premises, states that “Parcels
21A, 21B, and 21C are to be used only for a pedestrian thoroughfare for access to and
along the leased Premises.” POC was required to obtain the approval of the Board of
Harbor Commissioners for any sublease or assignment of the premises. The terms and
conditions of the Master Lease were binding upon sublessees. Under the terms of the
Master Lease, POC constructed sidewalks and other improvements.
In 1992, POC subleased a portion of the leased property to ABC International, Inc.
(ABC) The Sublease described the “Demised Premises” as a 15,046 square foot area
comprised of parcel numbers F-1, F-2, F-4, F-6, (F-7 (fishnet is excluded)), F-8, F-9 and
F-10 and “cross hatched on Exhibit ‘A’, attached hereto, made part of this sublease, and
hereinafter referred to as the ‘Demised Premises/or Subleased Premises.’” ABC was
given reasonable, nonexclusive license to use all common areas, walkways and walking
areas. ABC agreed to be bound by all provisions of the Master Lease, which was
incorporated into the Sublease.
Dennis Stahl, vice-president of POC, testified before the jury that in 1992, ABC
developed a number of buildings known as Asian Village on the Demised Premises. An
“Asian Entry Statement” was built as the entrance to the Asian Village area on the west
side of Ports O’Call Village, adjacent to Nagoya Way, a public street maintained by the
City. Photographic exhibits depict the Asian Entry Statement as a large gateway
structure with a blue tile Asian-style roof supported by several large decorative columns.
The sidewalk of the entry to Asian Village consists of decorative tile borders in a pattern
of squares. The photographic exhibits show a number of poles or bollards spaced far
3
enough apart to allow pedestrian traffic to enter Asian Village, where the concrete
sidewalk meets the asphalt roadway of Nagoya Way. The bollards are painted bright
yellow. A stripe of red paint, applied by the City, runs along most of the frontage on
Nagoya Way. The roof of the Asian Entry Statement extends to the edge of the concrete
where it meets the asphalt roadway of Nagoya Way.
Under the Sublease, ABC was to be “solely responsible” for the maintenance costs
associated with the entire Demised Premises, including common areas. Common areas
were defined as including all leasable and common areas of the Demised Premises,
including entries and walkways. POC had the right to enter the subleased premises “to do
any act or thing which [POC] may be obligated to do pursuant to the bylaws, government
regulation, the Master Lease or sublease or otherwise.” The Sublease expressly limited
POC’s responsibilities for maintenance and repair to maintaining and repairing
foundations, exterior walls, roofs, gutters and downspouts on exterior walls and roofs, as
well as sewers beyond the boundaries of the Demised Premises. 2 ABC was responsible
for all maintenance repairs to the Demised Premises except those reserved to POC.
POC and the City were expressly not to be held liable for, and were indemnified
for, “any injury which may occur to . . . guests, invitees . . . of the Subleased Premises or
any part thereof.” POC and City were not to be liable for any damage to persons caused
by the maintenance or use of subleased premises and appurtenances thereof. In addition,
POC was “not [to] be liable for any latent or patent defect in the Demised Premises.”
According to Stahl, the City periodically resurfaced Nagoya Way between 1992 and
2010.
In 1993, ABC assigned the Sublease to 3T Marketing. A First Amendment to the
Sublease was executed in 1994. The amendment changed the description of the Demised
2
The sublease prohibited an expansion of POC’s maintenance obligation:
“Nothing in this paragraph shall be construed to impose upon [POC] any obligations to
construct, maintain or make repairs, replacements, alterations or additions, nor shall it
create any liability for any failure to do so, except to the extent as [POC] may have a duty
to repair pursuant to this Sublease.”
4
Premises, deleting the description in the Sublease and substituting specified parcel
numbers and “all common areas of the ‘Asian Village’ as cross-hatched on Exhibit ‘A’
attached hereto, and made part of this sublease.” 3 The Demised Premises were described
as consisting of approximately 15,046 square feet. Section 15C of the Sublease
delineating POC’s repair responsibilities was deleted and replaced by language stating
that POC was to maintain and repair foundations and sewers located beyond the
boundaries of the Demised Premises with specified exceptions.4
A Second Amendment to the Sublease was agreed to in 1995, but it did not change
the description of the Demised Premises.5 Pursuant to the Second Amendment, Asian
Village was renamed Pan Pacific Village. In 1995, 3T Marketing assigned the Sublease
to the Chos.
B. The Complaint
Oscar and Blanca filed their complaint for negligence and loss of consortium
against POC in March 2012. They alleged that POC negligently allowed a dangerous
elevated separation between Nagoya Way and the sidewalk in front of the Pan Pacific
Village. They further alleged that in May 2010, Oscar tripped on that elevation and fell
3
The definition of Demised Premises in the First Amendment to the Sublease
provides: “A. [POC] hereby subleases to [3T Marketing], and [3T Marketing] hereby
subleases from [POC], all of that certain real property identified as Parcel Numbers F-1,
F-2, F-4, F-6, F-7, F-8,F-9, F-10, and all common areas of the ‘Asian Village’ as cross-
hatched on Exhibit ‘A’ attached hereto, and made a part of this SUBLEASE.” (Italics
added.)
4
POC’s repair responsibilities were redefined: “[POC] shall maintain and repair
the foundations and sewers located beyond the boundaries of the Demised Premises,
unless damage to said foundations or sewers have [sic] been caused by any act of
negligence of [3T Marketing] or of [3T Marketing’s] employees, agents, invitees,
licensees, or contacts. For example, grease causing sewer blockage would be the
responsibility of the offending restaurant or subtenant.”
5
The Second Amendment revised the rent formula and stated that the subleased
premises were to be used for the installation and operation of Asian retail stores and
Asian restaurants.
5
forward, striking his head and sustaining injuries. Blanca sought damages for loss of
consortium. The only named defendant was POC. POC answered the complaint. The
Albillos filed a first amended complaint substituting a bankruptcy trustee for Blanca. 6
POC filed an answer to that complaint, and later filed a motion for summary judgment,
which was denied. (The summary judgment pleadings are not included in the record on
appeal.)
C. Motions in Limine
Trial was set for February 24, 2014. That day, the trial court took up 12 motions
in limine filed by the parties. The only motions relevant to the issues in this appeal are
the Albillos’ motion number 1 and POC’s motion number 3, both of which raised POC’s
duty of care and any liability by a sublessee.7
The trial court heard extensive argument on the two motions. It focused on the
terms of the sublease to the Chos and whether they, rather than POC, had possession and
control over the location of the fall. On February 24, 2014, the first day of hearings on
the motions in limine, the trial court asked counsel for the Albillos whether he was
arguing for exclusion of testimony about what the leases were, who leased what, their
understanding of the boundary lines, and who has a right to possession. The court asked
“They [POC] can put on all of that evidence, right?” Counsel for the Albillos responded
“As fars [sic] as you’ve said it, yes.”
POC filed a supplemental brief on these issues on February 27. At the hearing that
day, the court acknowledged a legal issue as to the terms of the lease documents.
6
The bankruptcy trustee abandoned the estate’s claim against POC while this
appeal was pending. We granted Blanca’s request to be substituted in place of the
bankruptcy trustee.
7
The Albillos’ motion referenced POC’s argument in its motion for summary
judgment that it was not liable because the sublessee had responsibility for maintaining
the sidewalk. POC’s opposition to the Albillos’ first motion in limine stated that the
Albillos would contend at trial that the condition that caused the incident was on premises
leased by POC but not subleased to the Chos.
6
The court noted the general principle that a landlord who has leased the property
to a tenant has no duty of care to a guest of the tenant unless the landlord has actual
knowledge of the dangerous condition that caused injury and the right and ability to cure
it. (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal. App. 4th 608 (Stone).)
The court asked why Stone should not apply if it was true that POC gave up possession of
the property, as the court’s reading of the supplemental brief suggested. In that situation,
the court said the Albillos would have to show actual notice to establish that POC had a
duty of care. Counsel for both parties agreed with the court’s suggestion that a jury be
picked and the issue resolved the next day.
On February 28, 2014, POC filed another supplemental brief setting out the
chronology of the lease and subleases, including the eventual assignment to the Chos,
with all supporting documents attached as exhibits. These included the Sublease to ABC
(marked as defense trial exhibit 102); the First Amendment to the Sublease (marked as
defense trial exhibit 103); and the assignment to the Chos (marked as defense trial exhibit
108).
At the start of proceedings on February 28, the trial court again raised the issue of
the sublease with the Chos. The court read from a portion of the February 28, 2014
supplemental defense brief describing the common areas as defined in the First
Amendment to the Sublease, which include the ingress and egress easement identified as
Parcel 21A on the original lease map. The court heard further argument regarding
whether an easement over Parcel 21A was included in the subleased premises. The court
indicated that Parcel 21A, where the fall occurred, remained a common area, and within
the definition of Demised Premises subleased to the Chos. Once again, the court asked
counsel for the Albillos why the rule in Stone, supra, 163 Cal. App. 4th 608 should not
apply, requiring actual notice of a dangerous condition and a right to repair it in order to
impose a duty of care on a landlord out of possession of the property.
The parties then argued whether POC had the obligation to enter onto the Demised
Premises for maintenance purposes. The trial court said “I can’t believe you guys waited.
Bring in the jurors.” After a lunch recess, trial began with the Albillos’ case-in-chief.
7
It is unclear whether the trial court ruled that the Stone standard applied at this
stage. The court stated that it had so ruled. The record itself is not clear on this point.8 It
is clear, however, that the trial court ruled that Stone applied in granting the motion for
nonsuit, discussed below.
D. The Trial
The trial court bifurcated the liability and damage issues for trial. The following
facts were adduced during the liability phase. On May 8, 2010, Oscar, his nephew, Jose
Diaz, and their friend Beder Antonio Lopez9, went to the San Pedro Fish Market at Ports
O’Call Village for lunch. Over the next four hours, in addition to ordering food, Oscar
and Lopez drank two to three pitchers of beer. Oscar decided to leave and called his son,
Osmar Albillo, to pick him up because he had been drinking.
Diaz testified that while they were waiting for their ride, he, Oscar and Lopez
walked toward another restaurant at Ports O’Call Village. He was walking about two feet
ahead of Oscar. Diaz testified that Oscar was walking slowly but seemed to be in control
of his body. Diaz walked past one of the yellow bollards to enter Pan Pacific Village and
turned right. He heard a noise, turned, and saw Oscar on the ground, unconscious.10
Diaz testified that exhibit 117, a photograph of the area he was shown at his deposition,
showed where Oscar fell. Trial exhibit 7-020 accurately depicted what the ground looked
like at the time.
8
POC’s counsel asked Dennis Stahl, the person most knowledgeable about the
subleases, about the subleases in the case-in-chief. The trial court interjected “Why are
we doing this? I ruled on the issue of the standard. What’s the relevance of it?” Counsel
for POC replied that counsel for the Albillos appeared to be intimating that POC had
responsibilities under the Master Lease. The trial court responded: “Doesn’t matter what
the inference is. What matters is [the] instruction I give to the jury as to the standard of
care as for this part. [¶] Next time object.”
9
Lopez did not testify at trial.
10
In their opening brief, the Albillos concede that Diaz’s testimony about Oscar’s
position on the ground was “not sufficiently described in the record to be meaningful.”
8
Oscar’s son, Osmar, pulled up in front of Pan Pacific Village and saw his father
lying on the ground. Oscar “was laying [sic] with his feet toward the asphalt, head
toward the restaurant [which was inside the Village].” Osmar returned to the scene about
two weeks later. He testified that exhibits 7-010 through 7-020 accurately depicted the
area of the fall as it appeared on his second visit in 2010.
Oscar testified, but he had no recollection of his fall. Blanca testified that since
the accident, Oscar had experienced loss of memories, loss of the ability to speak English
clearly and fluently, and difficulty communicating.
The exact location of Oscar’s fall was disputed at trial. In reviewing a nonsuit, we
must take the plaintiffs’ evidence as true, and disregard conflicting evidence. (M&F
Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal. App. 4th 1509, 1532 (M&F
Fishing).) Under this standard, for purposes of this appeal, we will assume the truth of
testimony by Diaz and Osmar Albillo that Oscar fell between the two bollards to the right
when viewed from the street where the concrete met the asphalt roadway and red stripe as
shown in the photographs marked as Exhibit 7. The evidence at trial focused on this
location.
The Albillos’ surveying expert, Danny May, testified that he surveyed the
boundary between the property leased to POC and Nagoya Way. He determined that the
boundary was not where the concrete sidewalk abutted the asphalt of the roadway (under
the Asian Entry Statement in the red striped area). Instead, the boundary was seven
inches from the edge of the sidewalk to the west, which was in the asphalt road surface of
Nagoya Way.11
Dennis Stahl testified in the Albillos’ case-in-chief. His affiliation with POC
began in 2003. He is the person at POC most familiar with the terms of the original
lease. At the time of the original lease, Parcel 21A, a narrow strip of land adjacent to
Nagoya Way, and other parcels, were designated for use as a pedestrian thoroughfare for
Photographs taken during May’s survey were admitted as Exhibits 5-001
11
through 5-006.
9
access to the premises. POC had agreed under the Master Lease to maintain all
improvements covered by that agreement.
Stahl testified on direct that he visits Ports O’Call Village two to four times a year.
He parks in the parking lot on Nagoya Way and enters the village through various areas.
If he intends to go toward the Pan Pacific Village, he enters through the Asian Entry
Statement. He visits the area in front of Pan Pacific Village once or twice a year. On
cross-examination, Stahl said “POC” walks the Ports O’Call Village property four to five
times a year, but he did not specify the person who performed those visits. POC does not
have an office at the Village property.
When ABC built the Asian Entry Statement in 1992, the whole entry area was
redone, including the sidewalk. Stahl was not aware of any work other than normal
maintenance performed by the subtenant in the area of the sidewalk and the boundary in
front of Pan Pacific Village between the time of the 1992 work and 2010.
Stahl was shown exhibit 7-013, a photograph of the area where Oscar Albillo fell.
It depicts the right side of the Asian Entry Statement viewed from the street with the two
bollards to the far right and the concrete sidewalk abutting the asphalt roadway and red
striped area. Stahl did not recall any noticeable change to that location between 2010 and
2012, when the photographs in exhibit 7 were taken. He first heard about Oscar’s fall
when served with the complaint in March 2012.
Stahl testified that POC built a sidewalk in 2004 at the request of the Chos, who
paid POC for the work.12 This was on the north side of Pan Pacific Village, an entirely
different area than the location of the fall. Stahl testified that if POC receives a complaint
about needed repairs, it investigates the site and sends a notice to the subtenant
responsible for that area. No requests for repair of the area in front of Pan Pacific Village
had been received.
Brad Avrit also testified for the Albillos. He is a civil engineer and expert on
pedestrian safety, the biomechanics of walking, and human factors, which encompasses
The work was contracted through POC’s parent entity, Specialty Restaurant
12
Corporation.
10
how people interact with the environment around them. Avrit personally investigated the
site of Oscar’s fall. The company took the series of photographs marked as Exhibit 6-001
through 6-013 in 2012. Avrit’s opinion was that the walking surface at the location of
Oscar’s fall, as shown in exhibit 6-001, was not in a reasonably safe condition. It was
dangerous because there was a significant tripping hazard caused by a height differential
in the red stripe between the concrete walkway and the asphalt. Although the differential
was high enough to trip a pedestrian, it was low enough to be difficult to perceive, and
therefore was not obvious. In addition, exhibit 6-003 showed various conditions
distracting to pedestrians, including two-way vehicle traffic, advertising displays and
signs, and bollards protruding from the ground. He testified that pedestrians turning the
corner into Pan Pacific Village encountered shops and restaurants that would cause them
to look away from the walking surface. In Avrit’s opinion, the condition of the property
created a significant risk of tripping.
Based on evidence of this significant trip hazard, and the position in which Oscar
was found on the ground, Avrit opined that the incident was consistent with a person
tripping and losing his balance, resulting in a fall. In his opinion, the photographs in
exhibit 6 depict a long-standing depression that evolved over a significant length of time
rather than suddenly.
The Albillos’ exhibits were admitted and they rested.
E. The Nonsuit Motion
POC moved for nonsuit on March 4. The trial court was presented with a unique
situation. It recognized that the legal issues of interpretation of the sublease documents
and POC’s duty were questions of law for its determination, not the jury’s. Although the
Albillos had not introduced evidence of any sublease from POC in their case-in-chief, the
court was aware of the subleases because of the extensive argument and evidence
presented in the motions in limine. The court concluded that it was necessary to take
additional evidence to assist in its legal determinations. The court did not take new
evidence on any factual issue to be decided by the jury.
11
The court examined Exhibit 10313, the First Amendment to the Sublease. The
common areas of the Demised Premises are defined by reference to the cross-hatched
area on Exhibit A to the First Amendment. The trial court observed that Exhibit A “isn’t
at all clear.” It said that while some cross-hatches appeared to cross both Parcels 13 and
21A, others did not. The trial court asked counsel for the Albillos about the language of
the sublease that said “all common areas” were included in the definition of the Demised
Premises. Counsel made reference to common areas within Parcel 13.
At that point, the court announced that it was going to recess the trial, and call the
person most knowledgeable about the lease as a witness. Counsel for POC identified
Dennis Stahl, who had testified in the Albillos’ case-in-chief, as that person. Counsel for
the Albillos objected that Stahl had not negotiated the lease. The trial court said it
intended to ask Stahl and Mr. Cho14 to testify about who was maintaining the property
from Nagoya Way into the Pan Pacific Village. The court said: “Because if Mr. Cho is
maintaining everything from Nagoya Way on, and has been since 1997, then I’m going to
conclude that that was the lease [sic] premises in 1994.” [¶] And I have to do that in
order to decide what the standard of care is” and whether to grant the nonsuit motion.15
Counsel for the Albillos objected to taking new evidence on the nonsuit motion
because the motion tests the evidence presented in plaintiff’s case-in-chief. The trial
court rejected plaintiffs’ argument, stating “but I’m not offering evidence for the jury to
hear. I’m trying to find out what standard I use to rule on a nonsuit: is it actual
knowledge or knew or should have known. And if these premises are still possessed by
Ports O’Call, then it’s knew or should have known, and nonsuit denied. If it’s in the
13
This was a defense exhibit to POC’s supplemental brief filed February 28, 2014
(see C, above at page 8). It had not been received into evidence.
14
Mr. Cho did not in fact testify at the hearing.
15
Before testimony was presented at the nonsuit hearing, the trial court elicited an
agreement by counsel for the Albillos that if the site of the fall was subleased to the Chos,
then the proper standard for a duty of care would be actual knowledge under the
governing case law.
12
hands of the Chos and was, in fact, subleased to the Chos back in ’97, then I think I have
to grant the motion for nonsuit, because I don’t think there is evidence of actual
knowledge.”
The nonsuit hearing resumed on March 5. The court stated it had ruled that the
possessory interest was with the Chos, and therefore the Albillos had to prove POC had
actual notice of the dangerous condition. But in light of the Albillos’ argument that there
was no evidence of the Chos’ possessory interest, the court called Stahl to lay a
foundation for the Sublease, the First Amendment to the Sublease, and the Second
Amendment to the Sublease.
Stahl testified that the cross-hatched area on exhibit A to Exhibit 103 (First
Amendment to the Sublease) includes both Parcels 13 and 21A. He testified that the roof
of the Asian Entry Statement extends all the way to the public street line, across Parcel
21A.16 Stahl testified that POC did not have possession of any of the property, including
Pan Pacific Village. From boundary to boundary, the control was with the Chos as
sublessee. He said POC’s intent was to lease everything POC received from the City,
from the westerly most portion of Parcel 21A all the way back to the water. The Chos
were to maintain the entire property subleased to them. Their maintenance obligation
ended at the legal property line for the property POC received from the City under the
Master Lease. POC did not survey the property line. Stahl explained that the parties may
have therefore been mistaken about the location of the boundary, but that they understood
that it extended up to the asphalt.
Stahl further testified that section 1 of the First Amendment to the Sublease
(Exhibit 103) made all common areas of the Asian Village cross-hatched on Exhibit A
part of the subleased premises, “because he believe[d] the original Sublease was not clear
in that fashion, on that particular point.” The First Amendment therefore modified
The court had reviewed the transcript of Stahl’s testimony in the case-in-chief, in
16
which he stated that ABC built the Asian Entry Statement under the terms of the original
Sublease.
13
paragraph 7 of the original Sublease (Exhibit 102), which defined the common area as
including all leaseable and common areas of the Demised Premises including walkways.
Following argument by counsel, the court issued its ruling. It interpreted the
Sublease (exhibit 102) and the First Amendment to the Sublease (exhibit 103) and
assignment (Exhibit 108) as subleasing all the property leased by POC to the Chos,
including Parcel 21A, starting from the point where the concrete sidewalk abutted
Nagoya Way. The court concluded that there was no other reasonable reading of the
lease documents, amendments, and Stahl’s undisputed testimony.
The court was not persuaded by the Albillos’ argument that POC was liable
because the contract gave it the ability to make repairs or direct the tenant to make
repairs. It reasoned that the tenant’s possession of the property required the landlord to
have actual notice of a dangerous condition to impose a duty. It concluded that the
Albillos were required to prove in their case-in-chief that POC had actual notice of the
dangerous condition.
The court then considered the evidence of notice. It found that POC gave up
possession of the site of Oscar’s fall in July 1994 when the First Amendment to the
Sublease was executed. Taking the evidence in the light most favorable to the plaintiffs,
on the date of the fall in May 2010, the court found the property looked as it did in the
photographs in evidence.17
The court noted that the Albillos had presented no evidence of when the condition
was created, when it developed to the point depicted in the photographic exhibits, or
when Stahl visited the property. The photographic exhibits established that the Asian
Entry Statement is a large area, which allows entry between any of the bollards. There
was no evidence that the defect was present when Stahl visited. Based on the state of the
17
There was no specific evidence as to when the dangerous condition developed.
Avrit testified it had developed over a long period. He also admitted that he did not know
what caused the dangerous condition.
14
evidence, the trial court concluded that it did not believe that the jury could find that the
defendant had actual knowledge. On that basis, the court granted nonsuit.18
Judgment for POC was entered on April 9, 2014. The Albillos’ motion for new
trial was denied.
DISCUSSION
I
The Albillos’ Procedural Challenges
We begin our analysis with the multiple procedural issues raised by the Albillos as
to the nonsuit.
A. New Evidence at Nonsuit Hearing
The Albillos’ primary argument is that the trial court erred in ruling on the nonsuit
motion by considering evidence, both documentary and testimentary, which had not been
presented to the jury in the Albillos’ case-in-chief. We conclude that the trial court did
not err in considering this evidence, which was relevant to whether the Chos, rather than
POC, were in possession of the location at the time of Oscar’s fall.
This is not a situation where the Albillos were ambushed by an issue raised for the
first time on nonsuit. We have reviewed the entire record on appeal, as required by the
applicable standard of review. (Fillpoint v Maas (2012) 208 Cal. App. 4th 1170, 1176
(Fillpoint) [appellate court cannot consider plaintiff’s evidence in isolation, and disregard
contradictory evidence, rather the entire record must be reviewed]; Kidron v. Movie
Acquisition Corp. (1995) 40 Cal. App. 4th 1571, 1581 [“the appellate court’s review must
be based on the whole record, not just the excerpts chosen by the appellant”].) As we
have discussed, the record on appeal demonstrates that the language and impact of the
subleases was thoroughly addressed by the parties and the court before the Albillos
presented their case-in-chief. The Albillos chose not to present evidence of the subleases
18
The trial court therefore did not rule on the Albillos’ argument that they had
presented sufficient evidence that POC had constructive notice of the dangerous
condition to overcome nonsuit.
15
in their case. Therefore, out of an abundance of caution, the court called Stahl to testify
at the nonsuit hearing regarding the foundation for the sublease documents and the intent
of the parties to transfer all the property received by POC, including the location of
Oscar’s fall, to the Chos.
This evidence was relevant to interpretation of the subleases. Contract
interpretation is solely a judicial function, even on a nonsuit. (Thrifty Payless, Inc. v.
Mariners Mile Gateway (2010) 185 Cal. App. 4th 1050, 1060.) Stahl’s testimony at the
nonsuit hearing was uncontradicted regarding the intent of the parties as to the Chos’
possession and control of the entire leased premises. “Where, as here, no conflicting
parol evidence is introduced concerning the interpretation of the document, ‘construction
of the instrument is a question of law, and the appellate court will independently construe
the writing. [Citation.]”’ (Paralift, Inc. v. Superior Court (1993) 23 Cal. App. 4th 748,
754.)” (M&F Fishing, supra, 202 Cal.App.4th at p. 1530.)
The second issue of law decided on the nonsuit motion was the applicable
standard of duty of care POC owed to Oscar. The existence of duty is a question of law
to be decided by the court. (Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014)
231 Cal. App. 4th 11, 22.) If POC was in possession and control of the location of the fall,
the Albillos needed only to prove that POC had constructive knowledge or notice of the
dangerous condition in order to give rise to a duty of care. If POC had transferred
possession and control to the Chos, then the Albillos were required to prove that POC had
actual knowledge of the dangerous condition to establish a duty of care to Oscar. (Stone,
supra, 163 Cal.App.4th at p. 612; Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504,
514 (Uccello) [where landlord is out of possession, duty of care arises only where
landlord has actual knowledge of dangerous animal, coupled with a right to have it
removed from premises].)
We have found no case directly on point with this unique procedural situation.
However, R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal. App. 4th 327
(R & B Auto) is instructive. In R & B Auto, the Court of Appeal found that evidence
submitted on a motion in limine could be considered on a nonsuit motion under the
16
peculiar circumstances presented. In that case, a used car dealer was sued under the
“lemon law.” 19 When its insurance carrier would not defend or indemnify the claim, the
car dealer brought various claims against its carrier. The trial court eliminated the bulk of
the car dealer’s evidence through rulings on motions in limine, and then granted nonsuit
before opening statements or presentation of evidence. (Id. at p. 333.)
The appellate court in R & B Auto acknowledged the general rule that an appellate
court may not consider evidence which was not put before the trial court. But it
concluded: “[T]his is not an instance in which the evidence we consider was never
proffered to the trial court in any context. It is simply the case that [the dealer] did not
take the time to remind the court of each of those individual items of evidence at the time
it opposed the motions for nonsuit, considering that the court had largely gutted its case
through rulings on motions in limine, and [the dealer] saw little basis for proceeding
without reversals of those rulings. Under the peculiar circumstances of this case, we see
no reason, in assessing the parties’ arguments on appeal, to ignore the evidence that had
been raised in the trial court proceedings and is contained in the appellate record.” (140
Cal.App.4th at p. 341, fn. 6, italics added.)
The court’s holding in Kim v. Konad USA Distribution, Inc. (2014) 226
Cal. App. 4th 1336 (Kim) is also relevant to considering the trial court’s admission of
evidence at the hearing on the nonsuit. In that case, the plaintiff brought sexual
harassment and wrongful termination claims against her former employer and supervisor.
Her complaint did not plead exhaustion of her administrative remedies with regard to her
cause of action under the Fair Employment and Housing Act (FEHA, Gov. Code, §
12900 et seq.), although she had received a right to sue letter from the Department of Fair
Employment and Housing which satisfied that requirement. Although they pleaded an
affirmative defense of failure to exhaust administrative remedies, the defendants did not
raise the issue by any pretrial motion. (Id. at p. 1342.) The defense opening statement at
trial did not mention the failure to exhaust issue, and the record on appeal did not include
19
The Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq.
17
any motions during or after trial based on that issue. (Ibid.) During the plaintiff’s
examination at trial, defense counsel elicited her testimony that she had not filed any
document with a government agency alleging sexual harassment. On redirect, over
objection, plaintiff’s counsel introduced the right to sue letter. (Id. at pp. 1342-1343.)
The defendants raised the failure to exhaust issue in objections to the trial court’s
proposed statement of decision and judgment in favor of plaintiff. Defendants moved to
set aside the judgment on the ground of failure to exhaust administrative remedies and
other grounds. Plaintiff opposed the motion, arguing the defendants had waived the
issue. She attached copies of the verified administrative complaints she filed and a right
to sue letter. (Kim, supra, 226 Cal.App.4th at p. 1344.) Taking a position similar to that
taken by the Albillos here, the defendants in Kim argued that it was improper for the
court to consider the documents attached to the plaintiff’s opposition because they were
not admitted at trial. (Ibid.) The court denied the motion, rejecting the defendants’
arguments.
On appeal, the defendants renewed their argument that the court lacked
jurisdiction to enter judgment because plaintiff had failed to prove exhaustion of her
administrative remedies at trial. The appellate court recognized that it was unclear “what
should happen if the issue of exhaustion of administrative remedies is basically ignored
until after FEHA claims have been submitted to the fact finder for decision.” (Kim,
supra, 226 Cal.App.4th at p. 1346.) It reviewed the record and concluded that the “only
reasonable inference” was that the plaintiff had exhausted her administrative remedies.
(Ibid.) It observed “defendants’ argument (implicitly at least) is that we are obligated to
limit our review to evidence admitted at trial, thereby ignoring the fact that plaintiff really
did exhaust her administrative remedies.” (Ibid.) It affirmed the judgment for plaintiff.
The situation presented in this appeal is similar to the procedural status of R & B
Auto, supra, 140 Cal. App. 4th 327 and Kim, supra, 226 Cal. App. 4th 1336. The court was
presented with legal issues which could not be resolved based on the limited evidence
presented in the Albillos’ case-in-chief. The subleases had been submitted to the court
before the case-in-chief began during litigation of the motions in limine.
18
The position taken by the Albillos on appeal is that the trial court should have
ignored the sublease to the Chos, and allowed trial to proceed on the evidence presented
in their case-in-chief that POC was in possession of the site of the fall under the Master
Lease. These unusual circumstances are analogous to the defendants’ effort to ignore the
right to sue letter received by the plaintiff in Kim, supra, 226 Cal. App. 4th 1336.
In addition, during argument on the motions in limine on February 24th, counsel
for the Albillos stated he had no objection to POC’s introduction of the evidence to which
they now object on appeal.20 The defense exhibits could have been identified and
admitted that day based on that representation.
At the beginning of the hearing on the nonsuit motion, the trial court reminded
counsel that the issue of the applicable duty is a matter of law for the court’s
determination. It observed that it had the subleases as well as the lease before it. When
counsel for the Albillos objected that the subleases were not in evidence, the court stated:
“Sir, I could admit them right now, not for the purposes of the jury, but for the purposes
of the court deciding what duty is owed. And I have had testimony about exhibits 102
[sublease from POC to ABC] and 103 [First Amendment to Sublease], the sublease and
the amendments to the sublease.” The court went on to describe the chronology of the
sublease, amendments and assignments. The court determined it could consider the
evidence because it was deciding the duty issue, a legal question for it to resolve. The
court concluded that it could consider the exhibits, “which would seem to [conclusively]
establish that there was a sublease in February of 1993, and, more importantly a sublease
which included the common areas in 1994.”
20
This resolves the Albillos’ argument on appeal that the Sublease exhibits were
not admitted into evidence until the day after the nonsuit was granted. As the trial court
noted, the exhibits could have been admitted earlier, as counsel for the Albillos
represented that he would not object. In addition, the Albillos failed to include the
reporter’s transcript for March 6, 2014, the day the defense exhibits were admitted, in the
record on appeal. We therefore are unable to determine whether counsel for the Albillos
raised an objection to the admission of these exhibits at that time. We find no error under
these circumstances.
19
The motion for nonsuit was not made until March 4, 2014, several days after the
extensive argument on the impact of the applicable standard of duty in light of the
sublease to the Chos. Under these circumstances, we conclude that the trial court did not
err in considering the sublease exhibits and Stahl’s testimony.
B. The Third Amendment to the Sublease
The Albillos complain that although it is referenced in the record, a third
amendment to the Sublease in 1998 was not presented to the court. They contend that
this omission renders reliance on the terms of the First and Second Amendments to the
Sublease improper because the third amendment may have changed those provisions.
As noted above, we have reviewed the entire record, including the reporter’s
transcripts and the appendices submitted by both sides. (Fillpoint v. Maas, supra, 208
Cal.App.4th at p. 1176.) The third amendment to the Sublease was submitted to the court
by the Albillos as part of their opposition to POC’s motion in limine number seven. It
was not brought to the attention of the trial court in the proceedings on the nonsuit. We
have reviewed the third amendment, which redefined the Demised Premises. But it does
not change the language from the First Amendment to the Sublease (exhibit 103) which
provided that the Demised Premises included “all common areas of the ‘Asian Village’ as
cross-hatched on Exhibit ‘A.’” The only relevant substantive change in the third
amendment is the name change from “Asian Village” to “Asian Village/Pan Pacific
Village.”
Since the language relevant to the issue of the Chos’ possession of the property
where Oscar fell was not changed in the third amendment, we conclude that any error
related to its omission from the proceedings on the nonsuit was harmless.
C. Approval of the Assignment of the Sublease to Chos
The Albillos argue that POC failed to present admissible evidence that the site of
the fall was subleased to the Chos because there was no evidence the assignment was
approved by the Harbor Commission as required by the Master Lease. They did not
make this argument in opposition to the motion for nonsuit. We will not consider an
20
argument not advanced in the trial court. (DiCola v. White Bros. Performance Products,
Inc. (2008) 158 Cal. App. 4th 666, 676 (DiCola).) 21
II
The Albillos’ Challenges on the Merits
We turn to a review of the nonsuit motion. The existence of a dangerous condition
at the site of Oscar’s fall is uncontested on appeal. The Albillos challenge the trial
court’s findings that the Chos were in possession of the property and that the Albillos
were therefore required to prove that POC, as a landlord out of possession of the
premises, had actual notice of the dangerous condition.22
A. Standard of Review
“‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter
of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his [or
her] favor.’ [Citation.] ‘A motion for nonsuit . . . concedes the truth of the facts proved,
but denies as a matter of law that they sustain the plaintiff's case. A trial court may grant
a nonsuit only when, disregarding conflicting evidence, viewing the record in the light
most favorable to the plaintiff and indulging in every legitimate inference, which may be
drawn from the evidence, it determines there is no substantial evidence to support a
judgment in the plaintiff's favor. [Citations.]’ (Edwards v. Centex Real Estate Corp.
(1997) 53 Cal. App. 4th 15, 27–28.) Because motions for nonsuit raise issues of law
(Saunders v. Taylor (1996) 42 Cal. App. 4th 1538, 1542), ‘we review the rulings on those
motions de novo, employing the same standard which governs the trial court [citation].’
(Id. at pp. 1541–1542.)” (M&F Fishing, supra, 202 Cal.App.4th at p. 1532.)
21
Even if the Albillos had not forfeited this argument, it would fail on the merits.
The Supplemental Brief filed by POC on February 28, 2014 included the Harbor
Commission’s approval of the sublease to 3T Marketing and the assignment of the
sublease from 3T Marketing to the Chos.
22
For the first time in their opening brief, the Albillos raise an alternative theory
that POC may be liable for failing to warn patrons even if the dangerous condition was on
Nagoya Way, which is controlled by City. We will not consider this argument because it
was not advanced in the trial court. (DiCola, supra, 158 Cal.App.4th at p. 676.)
21
On appeal, the Albillos argue that they presented a prima facie case that a
dangerous condition existed on premises possessed and controlled by POC. They rely on
Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200 for the proposition that they need not
establish that POC had actual knowledge of the dangerous condition, contending that
evidence of constructive knowledge is sufficient. Ortega is inapposite because the
defendant was the owner of the premises, so that the general rule of constructive
knowledge applied. (Id. at pp. 1204-1206.) The case did not address the attenuated duty
of a landlord who has relinquished possession and control of a premises to a subtenant.
The Albillos’ prima facie case is based on the evidence they presented in their case
in chief that POC was in possession of the location of the fall under the Master Lease.
Having rejected their procedural challenges to the additional evidence considered by the
court, we now consider that evidence to determine, de novo, whether the Chos, rather
than POC, were in possession of the location at the time of the fall.
B. Possession and Control
California courts recognize that a landlord has an attenuated duty of care to the
guest of a tenant. “‘Because a landlord has relinquished possessory interest in the land,
his or her duty of care to third parties injured on the land is attenuated as compared with
the tenant who enjoys possession and control. Thus, before liability may be thrust on a
landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff
must show that the landlord had actual knowledge of the dangerous condition in question,
plus the right and ability to cure the condition.”’ (Stone, supra, 163 Cal. App. 4th 608,
612, quoting Mata v. Mata (2003) 105 Cal. App. 4th 1121, 1131-1132, disapproved in part
on another ground in Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 247-250.)
Applying that principle, the court in Uccello v. Laudenslayer, supra, 44
Cal.App.3d at p. 504, held that “a landlord is under no duty to inspect the premises for
the purpose of discovering the existence of a tenant’s dangerous animal; only when the
landlord has actual knowledge of the animal, coupled with the right to have it removed
from the premises, does a duty of care arise.” (Id. at p. 514; see also Salinas v. Martin
22
(2008) 166 Cal. App. 4th 404, 412; Stone, supra, 163 Cal.App.4th at p. 608 [slip and fall at
restaurant].)
The trial court concluded that POC subleased its entire interest in the Demised
Premises, including the location of the fall. The Sublease, as revised by the First
Amendment, included all common areas, as cross-hatched on the attached Exhibit A in
the definition of Demised Premises. In addition, language in paragraph 7 of the Sublease
defines common areas as including “entries to the Demised Premises” and “walkways.”
We apply the standard rules of contract interpretation, a judicial function. (Jade
Fashion & Co. v. Harkham Industries, Inc. (2014) 229 Cal. App. 4th 635, 651 (Jade).)
The court must give effect to the mutual intent of the parties as of the time the agreement
was executed. (Ibid.) “‘Extrinsic evidence is admissible, however, to interpret an
agreement when a material term is ambiguous. [Citations.]” (Ibid.) The court follows a
three-step process when the meaning of a contract is disputed. “First, it provisionally
receives any proffered extrinsic evidence that is relevant to prove a meaning to which the
language of the instrument is reasonably susceptible. [Citations.] If, in light of the
extrinsic evidence, the language is reasonably susceptible to the interpretation urged, the
extrinsic evidence is then admitted to aid the court in its role in interpreting the contract.
[Citations.] When there is no material conflict in the extrinsic evidence, the trial court
interprets the contract as a matter of law. [Citations.] This is true even when conflicting
inferences may be drawn from the undisputed extrinsic evidence [citations] or that
extrinsic evidence renders the contract terms susceptible to more than one reasonable
interpretation. [Citations.]’” (Id. at pp. 651-652, quoting Wolf v. Walt Disney Pictures &
Television (2008) 162 Cal. App. 4th 1107, 1125-1126.) We review a trial court’s
interpretation of a contract de novo where there was no conflicting evidence presented.
(Union Pacific R.R. Co. v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal. App. 4th 134,
156.)
The parties and the court addressed two ambiguities regarding whether POC
relinquished possession and control over the site of the fall to the Chos through the
assignment of the sublease. The first concerned the description of the Demised Premises
23
by reference to cross-hatching in the map marked as Exhibit A to the First Amendment to
the Sublease. The second concerned a discrepancy between the square footage noted on
that map and the square footage stated in the description of the Demised Premises in the
various lease documents.
1. Cross-Hatchings on Exhibit A
POC argued that the sublease intended to convey all of the premises, including all
of Parcel 21A, to the subtenants. The Albillos contended that the cross-hatch markings
on Exhibit A to the First Amendment to the Sublease did not extend into Parcel 21A,
leaving a narrow strip of property that was reserved by POC and not assigned to 3T
Marketing or their assignees, the Chos. The trial court examined Exhibit A and
concluded that it was “not at all clear,” although it had been enlarged on the courtroom
audiovisual equipment. We also have examined a smaller version of Exhibit A included
in the appellants’ appendix and find it ambiguous as well.
The trial court concluded that extrinsic evidence was necessary to determine the
intent of the parties. Stahl’s uncontradicted testimony at the nonsuit hearing was that
POC did not intend to retain possession of any part of the area of Pan Pacific Village,
including the location where the fall occurred. POC understood that area was transferred
to the possession and control of the various subtenants. The subtenants in possession at
the time of Oscar’s fall were the Chos.
Based on this record, we conclude that the reasonable interpretation of the
sublease as amended was that POC intended to transfer possession of the entire area of
Pan Pacific Village, including the entry where Oscar fell, to the Chos. (See Civ. Code, §
1643, requiring an interpretation of a contract as will make it reasonable.)
2. Square Footage
The Albillos pointed out that the both the Sublease and the First Amendment to the
Sublease describe the Demised Premises as an area of approximately 15,046 square feet,
including a number of parcels bearing the designation “F” plus a number, and the cross-
hatched area on Exhibit A. The parcels with the “F” designation do not appear on
Exhibit A. The map shows, among other parcels, Parcel 13 and 21A. The square footage
24
of Parcel 13 on Exhibit A is 19,157 square feet and Parcel 21A is 2,566 square feet.
These numbers do not total 15,046 as described in the lease documents.
The Albillos argued that the jury should have resolved this ambiguity. We
disagree. The extrinsic evidence submitted at the hearing on nonsuit (Stahl’s testimony)
was uncontradicted. Where there is no material conflict in the extrinsic evidence, the
contract is interpreted as a matter of law, even when conflicting inferences may be drawn,
or the contract terms are susceptible to more than one reasonable interpretation. (Jade,
supra, 229 Cal.App.4th at p. 652.)
The undisputed evidence was that POC was a landlord no longer in possession
because of the sublease and subsequent assignments. The Chos were in possession at the
time of the fall, and had maintained the area since their tenancy began. We conclude that
the trial court correctly held that the Albillos were required to prove POC had actual
notice of the dangerous condition.
3. POC’s Right to Enter and Repair
The Albillos argued that even if the area where Oscar fell was subleased to the
Chos, POC retained the right to enter and make repairs to the area under the terms of the
Master Lease and the Sublease. They acknowledge the general rule that a commercial
landlord’s right to enter the premises to inspect and make repairs is not sufficient
evidence of an agreement that the landlord has not surrendered possession and control to
the tenant. (Mora v. Baker Commodities, Inc. (1989) 210 Cal. App. 3d 771, 780-781.) In
Mora, a landlord subleased a commercial premises with express lease language giving it
the right to enter the premises and make repairs. The Court of Appeal held that the
landlord owed no duty once the premises were transferred to the tenant if the premises
were safe when the tenant took possession. (Id. at pp. 780-781.)
The Albillos contend that under the terms of the Master Lease POC was required
to maintain the premises in a safe condition at all times, and that this language overrides
the language of the Sublease, which incorporated the Master Lease. They concede that
under the Sublease, the Chos were responsible for all repairs and maintenance other than
those reserved to POC, and that POC was not responsible for maintaining or repairing the
25
pedestrian thoroughfare marked as Parcel 21A. The Albillos contend that under these
circumstances, POC and the Chos shared the maintenance and repair duties.
In their reply brief, the Albillos cite testimony by Stahl from their case in chief
that POC, at the request of the Chos, built a sidewalk in the Demised Premises in 2004.
The Chos paid for the work, which was contracted through POC’s parent company. Stahl
explained that this work was done on the north side of the Pan Pacific Village, an entirely
different area than the site of the fall on the west side.
The Master Lease contains a requirement that the “[l]essee shall maintain the
[property] and improvements at all times in a safe, clean . . . condition and in conformity
with all applicable federal, state, municipal and other laws and regulations. . . .
Paragraph 12A of the sublease allowed POC to enter the subleased premises “to do any
act or thing which [(POC)] may be obligated to do pursuant to the bylaws, government
regulation, the Master Lease or sublease or otherwise.” But paragraph 12C expressly
states that “[N]othing in this paragraph shall be construed to impose upon (POC) any
obligations to construct, maintain or make repairs, replacements, alterations or additions,
nor shall it create any liability for any failure to do so, except to the extent as [(POC)]
may have a duty to repair pursuant to this Sublease. Our reading of the Sublease,
together with the Master Lease, is that POC assigned its responsibilities for maintenance
and control of the Demised Premises to the Chos. This was also Stahl’s uncontradicted
testimony in the hearing on nonsuit.
4. Easement
The Albillos now argue that the interest POC sublet to the Chos was an easement,
which left POC with a possessory interest in the site of the fall. The argument is based
on language in the Master Lease which gave POC ingress and egress rights only over
Parcel 21A. The Sublease gave ABC a non-exclusive license to use common areas. The
Albillos cite authority that an easement is not an estate in property, as is a lease. (Golden
West Baseball Co. v. City of Anaheim (1994) 25 Cal. App. 4th 11, 35 (Golden West).)
This argument was not made at the nonsuit hearing. We will not consider an argument
not advanced in the trial court. (DiCola, supra, 158 Cal.App.4th at p. 676.)
26
Even if the issue had been preserved, we conclude that the question remains
whether POC had control over the area at issue. The court in Golden West concluded that
labels such as easements were not useful in determining the scope of the rights and duties
between the parties. (25 Cal.App.4th at pp. 37-38.) The case did not involve the duty of
a landlord in tort, but instead was a real property dispute.
The issue of a duty of care in a tort case where the defendant holds an easement
was addressed in Cody F. v. Falletti (2001) 92 Cal. App. 4th 1232. The defendants in that
action held an easement over a road in a planned unit development that ran in front of a
home occupied by the owner of 20 vicious dogs who ran outside and attacked the minor
plaintiff. The court held that “[a]n easement interest does not necessarily translate into a
tort duty.” (Id. at p. 1243, italics added.) The evidence was that the defendants did not
have a right of control over the road or the dogs. The lack of control was central to the
Cody F. court’s reasoning: “The nature of the duty owed by the owner of an interest in
real property must have a relationship to the degree of control conferred by the scope of
the ownership interest itself.” (Id. at p. 1243.) Unlike the evidence in Cody F., the
evidence at the nonsuit hearing was that the Chos had control over the area of Oscar’s
fall.
C. Evidence of Actual Notice
Having determined that the Chos were in possession, the Albillos had to show
proof of POC’s actual knowledge of the dangerous condition. The Albillos argue that
they presented sufficient evidence of POC’s actual notice of the dangerous condition in
the entry to the Pan Pacific Village to raise a duty of care by POC and overcome the
nonsuit motion. They cite Stahl’s testimony that “POC” walked the property four to five
times a year. Stahl walked the property personally two to four times a year. He parked in
the parking lot on Nagoya Way and crossed Nagoya Way to enter. Stahl said that when
visiting, he entered “through various areas,” referring to an unidentified photograph in
Exhibit 4. He explained that Pan Pacific Village has a long frontage along Nagoya Way
and that the transition from the public street onto the development is different from place
27
to place. Once or twice a year he entered Pan Pacific Village through the Asian Entry
Statement.
The evidence in the case-in-chief was that the dangerous condition was difficult to
see. Avrit, the safety expert, testified that the condition where Oscar fell was dangerous
not only because of the height differential, “but it’s low enough that it’s difficult to
perceive; it doesn’t readily stand out. So it’s not obvious that there’s a problem in this
area. . . .” In light of this evidence, the jury could not reasonably infer that Stahl would
have seen the dangerous condition when he entered the property at various locations at
the entrance to the Pan Pacific Village.
Stahl did not recall any noticeable change to the area depicted on exhibit 7-013 in
the twelve months before he visited at an unspecified time in 2010. He did not recall
seeing the area between mid-2011 and 2012, so he could not speculate on any change to
the area between the bollards. Stahl was not aware of anything other than normal
cleaning and maintenance by the subtenant in the area in front of the Pan Pacific Village
since 1992.
Stahl testified that approximately 3,000 visitors come to Ports O’Call Village
every week. If POC received a complaint about needed repairs, it notified the subtenant
who is responsible for that area. POC had never received a complaint about the area
where Oscar tripped in the two years before the incident. POC does not have an office at
Ports O’Call Village. Stahl found no record of repair in the POC offices for the area in
front of the Pan Pacific Village. Because Ports O’Call Village is a very large area, Stahl
could not say whether he had noticed the appearance of the area between the asphalt and
cement sidewalk where Oscar fell. He first learned of Oscar’s fall when served with the
complaint in 2012.
A landlord’s denial of actual knowledge of a dangerous condition “‘will not, per
se, prevent liability. [Citations.] However, actual knowledge can be inferred from the
circumstances only if, in the light of the evidence, such inference is not based on
speculation or conjecture. Only where the circumstances are such that the defendant
“must have known” and not “should have known” will an inference of actual knowledge
28
be permitted. [Citation.]’” (Yuzon v. Collins (2004) 116 Cal. App. 4th 149, 163, citing
[Uccello, supra, 44 Cal.App.3d] at p. 514, fn. 4 [no showing landlord had actual
knowledge absent evidence he was aware of presence of particular dog who attacked
visitor, or of that dog’s dangerous propensities)].)
Like the trial court, we conclude that the Albillos failed to present sufficient
testimony in their case-in-chief to establish POC had actual notice of the dangerous
condition. The inferences they attempt to make from Stahl’s testimony are too
speculative. There was no evidence that Stahl walked over the area where the dangerous
condition existed, or that anyone else acting on behalf of POC was aware of it. We may
not reverse a nonsuit on the basis of evidence that is speculative. (Avidor v. Sutter’s
Place, Inc. (2013) 212 Cal. App. 4th 1439, 1455, citing Wolf, supra, 162 Cal.App.4th at
pp. 1124-1125.)
In sum, we conclude that the trial court properly considered both the exhibits and
testimony submitted at the hearing on nonsuit. These established that POC surrendered
possession and control of the area of the fall to the Chos. The Albillos were therefore
required to prove that POC had actual notice of the dangerous condition in order to
establish that POC owed them a duty of care. The evidence they presented in their case-
in-chief did not satisfy this burden. Nonsuit was proper under these circumstances, and
we affirm on that basis. In light of our conclusion that the Albillos were required to
prove actual notice by POC, we do not reach their alternative arguments regarding proof
of constructive notice.
29
DISPOSITION
The judgment of nonsuit in favor of POC is affirmed. POC is awarded its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
30