Brown v. 1027 Oliver Road Associates CA1/2 ( 2021 )

Filed 10/28/21 Brown v. 1027 Oliver Road Associates CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ELOUISE BROWN,
Plaintiff and Appellant,
A152598
v.
1027 OLIVER ROAD ASSOCIATES, (Solano County
Super. Ct. No. FCS045396)
Defendant and Respondent.
This premises liability lawsuit arises from injuries appellant Elouise
Brown sustained when she tripped on the handicapped ramp outside of a
Chuck E. Cheese restaurant owned by respondent, 1027 Oliver Road
Associates, dba Chuck E. Cheese’s 11274 Beebalm Circle, Braden, FL 34202
(Chuck E. Cheese’s). The trial court granted summary judgment against
Brown, and she now appeals. Construing her notice of appeal as having been
taken from the judgment entered after the summary judgment ruling, we
affirm.1
Brown filed a notice of appeal from the trial court’s “judgment”
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supposedly entered on July 25, 2017, after an order granting a summary
judgment motion. No such judgment is in the record. The record contains an
unsigned minute order entered on July 25, 2017, granting summary
judgment for the defendant, which directs the plaintiff to prepare an order
after the hearing, and a written “Order After Hearing on Motion for
Summary Judgment” entered two months later on September 28, 2017, which
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The appellate record is sparse. It contains only the trial court’s
summary judgment ruling but not the complaint or the summary judgment
motion itself, nor any of the papers and evidence filed in support of the
motion. Moreover, according to the trial court’s ruling, “there was no
opposition to the [summary judgment] [m]otion.”
The court ruled as follows:
“Plaintiff has not served or filed a separate statement disputing those
material facts contended by Defendant to be undisputed, which alone justifies
granting the motion. [Citation.] Moreover, Defendant has presented
evidence sufficient to meet its burden of showing that one or more elements
of Plaintiff’s premises liability claim cannot be established. [Citations.] A
claim of premises liability has the same essential elements as a claim for
general negligence: 1) a duty owed by the defendant to the plaintiff, 2)
breach of that duty, and 3) the breach was a proximate or legal cause of the
plaintiff’s injuries. [Citation.] The property owner has a duty to exercise
ordinary care by making reasonable inspections of the property and eliminate
defective and dangerous conditions for which the owner has actual or
constructive notice. [Citation.] The owner must have notice of the dangerous
condition in sufficient time to correct it. [Citations.] Plaintiff was injured by
tripping on raised bumps on a yellow dome pad on the handicapped ramp
outside the Chuck E. Cheese restaurant owned by Defendant. The yellow
incorporates verbatim the operative text of the minute order. The register of
actions indicates that a judgment in defendant’s favor was subsequently
entered on October 27, 2017, reciting that “Plaintiff shall take nothing by her
complaint against the defendant” and awarding the defendant its costs of
suit. We construe plaintiff’s notice of appeal as having been taken from the
subsequently entered October 27, 2017 judgment. (See Cal. Rules of Court,
rule 8.104(d).)
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dome pad was in compliance with applicable Building Codes and there is no
basis to conclude that the pad was dangerous or defective in some manner at
the time of the accident such that it created an unreasonable risk of harm to
invitees. Even if the dome pad could be deemed dangerous or defective in
some manner, Defendant had no actual or constructive notice of the
dangerous condition prior to Plaintiff’s accident. Consequently, the burden of
establishing the existence of a triable issue of material fact shifted to
Plaintiff. [Citation.] By failing to produce any specific evidence disputing
Defendant’s material facts, Plaintiff has not carried her burden. [Citation.].”
On that basis, the court granted defendant’s summary judgment motion.
On appeal, Brown makes two arguments in her opening brief. First,
captioned under a heading entitled “The Standard of Review,” she contends:
“An attorney for Chucki E. Cheese’s content [sic] that they were in
compliance and up to code on everything but they had last checked these
things in the 1900; 1997 or somewhat. It goes without saying that this is a
long time and things have and should have been updated by then. I did
nothing wrong except walk in an ordinary manner on their ramp, with
ordinary shoes, no heels or straps or anything, when I tripped and fell on the
rather bumpy ramp whereas had there been handrails installed there I could
easily have broken my fall.”
Second, captioned under the heading “Elements of the Action,” she
contends: “I would like to introduce the theory of res ipsa loquitor which
translated means ‘let the thing speak for itself,’ and this determines whether
or not the defendant has actually committed an attempt to correct something
which in this case it does not appear as such. There are three tests that must
be met in order to establish res ipsa loquitor and a prima facie case: [¶] 1)
The event doesn’t normally occur unless someone had acted negligently; [¶] 2)
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The evidence rules out the possibility that the actions of the plaintiff or a
third party caused the injury. [¶] 3) The type of negligence in question falls
within the scope of the defendant’s duty to the Plaintiff. [¶] So by legal
definition as res ipsa is evidentiary and [sic] allows plaintiffs like myself a
chance at a rebuttable presumption of negligence through circumstantial
evidence.”
There are three reasons we must affirm the judgment entered against
Brown.
First, the appellate record is not sufficient for us to review the
correctness of the summary judgment ruling. “It is well settled . . . that a
party challenging a judgment has the burden of showing reversible error by
an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [declining to
consider the merits of cross-appeal where plaintiff failed to furnish an
adequate record].) “ ‘In the absence of a contrary showing in the record, all
presumptions in favor of the trial court’s action will be made by the appellate
court. “[I]f any matters could have been presented to the court below which
would have authorized the order complained of, it will be presumed that such
matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is
that if the record is inadequate for meaningful review, the appellant defaults
and the decision of the trial court should be affirmed.” ’ ” (Jameson v.
Desta (2018) 5 Cal.5th 594, 609.) Brown has failed to include in the record
the summary judgment motion and the evidence filed in support of it, and so
there is no way for us to review the court’s ruling. (See, e.g., Bains v.
Moores (2009) 172 Cal.App.4th 445, 478 [appellate court “must reject” claim
that demurrer was improperly sustained because record does not contain the
complaint and demurrer motion papers]; Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502 [plaintiff failed to
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demonstrate error on appeal after trial court granted motion to strike
portions of complaint because record does not contain the court’s order or
underlying motion papers].)
Second, as the trial court noted, the summary judgment motion was not
opposed. (The record shows that only after the court ruled against her did
Brown file a belated opposition to the motion (on September 29, 2017).) This
has two consequences. One, because Brown failed to file any opposition or
evidence in opposition to the summary judgment motion, the trial court was
justified in concluding the motion was meritorious. (See Kelly v.
Liddicoat (1939) 35 Cal.App.2d 559, 565 [trial court correctly granted
unopposed summary judgment motion; defendants’ “failure to file affidavits
or otherwise oppose the [summary judgment] motion indicates that they were
utterly unable to make the showing of a substantial and meritorious defense
as required by [Code of Civil Procedure] section 437c” and “ ‘having failed to
do this the trial court justly concluded that there was no defense to the
action’ ”].) Alternatively, by not opposing the summary judgment motion,
Brown forfeited any claims of error in the trial court’s ruling. That is because
“ ‘[a] party who fails to raise an issue in the trial court has . . . waived the
right to do so on appeal.’ ” (Jensen v. Superior Court (2021) 64 Cal.App.5th
1003, 1013.)
Finally, we also must affirm the court’s ruling because Brown’s
appellate briefing does not set forth any cognizable claims of legal error. “ ‘In
order to demonstrate error, an appellant must supply the reviewing court
with some cogent argument supported by legal analysis and citation to the
record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019)
36 Cal.App.5th 142, 153.) “We may and do ‘disregard conclusory arguments
that are not supported by pertinent legal authority or fail to disclose the
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reasoning by which the appellant reached the conclusions he wants us to
adopt.’ ” (Ibid.) Here, Brown does not cite or discuss any legal authority in
support of her arguments and, because the appellate record is so bare, she
likewise does not cite or analyze any aspect of the record that was before the
court when it ruled. Her contentions are simply not cogent enough for us to
meaningfully consider them. They are not sufficient to carry her burden as
the appellant of demonstrating that the trial court erred.
As unfortunate as plaintiff’s injuries may be, she has not demonstrated
a basis to reverse the trial court’s summary judgment ruling.
DISPOSITION
The judgment is affirmed. Respondent is awarded its appellate costs.
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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
Brown v. 1027 Oliver Road Assocs. (A152598)
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