Riahi v. The Regents of the U. of Cal. CA1/5 ( 2022 )

Filed 8/24/22 Riahi v. The Regents of the U. of Cal. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
RAJA RIAHI,
Plaintiff and Appellant, A163399
v. (Alameda County
THE REGENTS OF THE Super. Ct. No. RG18914082)
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
Plaintiff and appellant Raja Riahi appeals an order granting the
motion for summary judgment of defendant and respondent The Regents of
the University of California (“Regents”). The trial court held that Riahi’s sole
cause of action for dangerous condition of public property fails because the
undisputed material facts show that Regents did not create nor have notice of
the dangerous condition under Government Code section 835.1 We agree and
affirm.
All further statutory references are to the Government Code unless
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otherwise specified.
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I. BACKGROUND
A. Facts
The following facts are taken from Regents’ separate statement of
undisputed facts filed in support of its motion for summary judgment, and
Riahi’s responses. In 2014, Regents, a public entity, entered into a ground
lease with Partnership for Haas Preeminence (PHP)2 to plan, design, and
construct Chou Hall, a new academic building for Haas School of Business.
After construction was completed, the lease was terminated and the building
was transferred back to Regents on or around January 17, 2018.
PHP contracted with defendant Vance Brown, Inc. (Vance Brown), a
general contractor, to construct Chou Hall. Vance Brown in turn, entered
into a subcontract with defendant Peninsulators, Inc. (Peninsulators) to
install the window coverings at Chou Hall. Peninsulators then contracted
with defendant Mechoshade Systems, LLC (Mechoshade) to supply the
window coverings. Regents had no role in the construction of Chou Hall.
Regents’ only involvement during construction was to schedule and
coordinate the work performed by Vance Brown and its subcontractors.
Regents performed a rough inspection of the framing, electrical, plumbing,
and mechanical systems after they were installed but before the walls and
ceiling were put in, as well as a final inspection of these systems after all
work was completed. A final inspection was required before an occupancy
permit could be issued. There was also a separate inspection by the
university’s Fire Marshall. Regents did not perform any other formal
inspections of Chou Hall. Regents conducted informal walk-throughs to
2PHP is a nonprofit organization that was formed to raise funds for the
construction of Chou Hall.
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check on the progression of work and to check for safety concerns such as
crinkled floor mats that could cause someone to trip.
The third floor of Chou Hall opened for temporary occupancy in July
2017. On February 4, 2018, Riahi was studying in one of the rooms on the
third floor. He claims that when he went to pull the window shade cord to
lower the window shade, the metal cover on the window (the fascia), fell from
a height of about 12 feet and struck him.
A few days after the incident, Joe Buch, a project manager from
Peninsulators, went to the room to investigate why the fascia fell. He picked
up the fascia from the floor, tried to reinstall it in its brackets, and found that
it did not fit snugly. He then measured the fascia and discovered it had been
cut 1/16 to 1/8 of an inch too short. He also used a tool to check one of the
ends of the fascia and found that it had not been cut square. It was not
apparent from his initial visual inspection that the fascia had been cut too
short. Regents was not aware of this defect or any incidents of a fascia falling
at Chou Hall prior to the subject incident.
B. Motion for Summary Judgment
Riahi filed a complaint that alleged a single cause of action against
Regents for dangerous condition of public property under section 835.3
Regents filed a motion for summary judgment on the grounds that Riahi
could not establish a claim under section 835 because Regents did not create
the dangerous condition and did not have actual or constructive notice of it.
Regents argued that it was undisputed that it was not involved in
constructing Chou Hall and that it did not have actual notice of the defective
fascia prior to the incident. Regents further argued that constructive notice
3The complaint also included a second cause of action for negligence
against Vance Brown, Peninsulators, and Mechoshade.
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could not be imputed to it because the defective fascia was not an obvious
condition such that Regents should have discovered it and realized its
danger.
In his opposition, Riahi conceded that he had no evidence that Regents
created the defect in the fascia or had actual notice of the defect. However,
Riahi argued that constructive notice should be imputed to Regents because
Regents did not perform an adequate or reasonable inspection that would
have revealed the defect and provided Regents time to fix it prior to Riahi’s
accident. Riahi further argued that whether an inspection was reasonable
was a question of fact that should be left to the jury to decide.
In support of his opposition, Riahi submitted a declaration of his
building safety expert, Zachary Moore. In his declaration, Moore opined that
the fascia created an unsafe condition and that Regents knew or should have
known of this unsafe condition. Moore further stated that the defect in the
fascia could be visually observed, and that Regents would have noticed this
defect had a reasonable and adequate inspection been performed. Regents
filed objections to Moore’s declaration on the grounds that the statements
included were irrelevant, lacked foundation, and were based on speculation.
C. The Trial Court’s Ruling
Following oral argument, the trial court granted Regents’ motion. The
court held that the undisputed material facts show that Regents did not
create or have actual notice of the dangerous condition. The court further
held that the undisputed material facts show that Regents did not have
constructive notice of the dangerous condition under section 835.2. The court
stated, “The window facia was 13 feet above the floor. The variance from the
specifications was not visible to the eye to an observer on the floor.
[Citation.] The fascia were installed by Peninsulator, and Peninsulator
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employee Buch testified that the variance from the specifications was not
visible to the eye from up close.”
The court further held that there was no evidence “of any prior incident
involving a defective window fascia that would have put the Regents on
notice of the need to look for a defect.” The trial court denied Regents’
objections to Moore’s declaration.4 The court noted however, that “Moore’s
testimony that someone should have inspected the window more closely does
not create a triable issue of material fact whether the Regents had a duty to
inspect the window more closely.”
Judgment was entered in favor of Regents, and Riahi now appeals.
II. DISCUSSION
A. Summary Judgment Standards
Summary judgment is proper “if all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd.
(c).) A defendant seeking summary judgment “bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant meets this burden by
showing that plaintiff “has not established, and cannot reasonably expect to
establish” an essential element of his claim. (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 768.)
We review a grant of summary judgment de novo, which means we
4 In its responding brief, Regents renews its objections to Moore’s
declaration. We need not reach the merits of these objections since we are
affirming the judgment. Even assuming the declaration is admissible,
summary judgment is still warranted as the declaration creates no triable
issue of material fact.
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“decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law.” (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348.) In deciding whether a material issue
of fact exists for trial, we “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained by
the court, and all inferences reasonably deducible from the evidence.” (Code
Civ. Proc., § 437c, subd. (c).) We view the evidence in the light most
favorable to the plaintiff, as the nonmoving party. (Saelzler v. Advanced
Group 400, supra, 25 Cal.4th at p. 768.)
B. Liability for Dangerous Condition of Public Property
“A public entity is not liable for injuries except as provided by statute,
and Government section 835 sets out the exclusive conditions under which a
public entity may be held liable for injuries caused by a dangerous condition
of property.” (Nishihama v. City and County of San Francisco (2001) 93
Cal.App.4th 298, 302 (Nishihama); § 815.)
To establish liability, a plaintiff must show that “the property was in a
dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous
condition created a reasonably foreseeable risk of the kind of injury which
was incurred, and that either: [¶] (a) [a] negligent or wrongful act or
omission of an employee of the public entity within the scope of his
employment created the dangerous condition; or [¶] (b) [t]he public entity
had actual or constructive notice of the dangerous condition under Section
835.2 a sufficient time prior to the injury to have taken measures to protect
against the dangerous condition.” (§ 835.)
C. New Argument That Regents Created the Dangerous Condition
In his opposition to Regents’ motion for summary judgment, Riahi
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conceded he had no evidence that Regents created or had actual notice of the
dangerous condition. Riahi now argues that there is a triable issue as to
whether Regents created the dangerous condition because by accepting the
completed building, Regents “assumed responsibility for the creation or
existence of any dangerous conditions.” This is otherwise known as the
“completed and accepted” doctrine that often applies to liability for work
completed by contractors.5
First, though we are “bound to determine whether defendants met their
threshold summary judgment burden independently from the moving and
opposing papers, we are not obliged to consider arguments or theories,
including assertions as to deficiencies in defendants’ evidence, that were not
advanced by plaintiffs in the trial court.” (DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676.) “A party is not
permitted to change his position and adopt a new and different theory on
appeal.” (Ernst v Searle (1933) 218 Cal. 233, 240–241.)
In his written opposition to Regents’ motion below, Riahi failed to raise
this new theory that Regents created the dangerous condition. Arguably,
Riahi failed to preserve this issue on appeal. The trial court’s order notes
that at oral argument, Riahi cited to Neiman v. Leo A. Daly Co. (2012) 210
Cal.App.4th 962 for the first time. The court then summarized why this
case was inapposite since it involved a defendant architect’s affirmative
5Originally, this doctrine held that “after a contractor had completed a
building and the owner had accepted it, the contractor was not liable to third
persons for injury caused by the condition of the work done even though
negligent in performing the contract.” (Sanchez v. Swinerton & Walberg Co.
(1996) 47 Cal.App.4th 1461, 1466.) “In other words, having a duty to inspect
the work and ascertain its safety before accepting it, the owner’s acceptance
represents it to be safe and the owner becomes liable for its safety.” (Id.)
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defense of the “ ‘completed and accepted’ ” doctrine and not the application of
section 835.2. Even if we assume that Riahi adequately raised the issue
before the trial court, it does not create a triable issue of material fact. 6
A public entity’s liability for injuries is governed by statute, and section
835 “sets out the exclusive conditions under which a public entity may be
held liable for injuries caused by a dangerous condition of property.”
(Nishihama, supra, 93 Cal.App.4th at p. 302.) Outside of section 835, a
public entity cannot be held liable for the ordinary negligence of its
employees. (Id.) Here, Riahi argues that Regents is liable under section 835,
subdivision (a) because it assumed responsibility for the creation of all
dangerous conditions by accepting the completed building. Riahi cites to no
authority to support such an expansive interpretation of section 835.
In rejecting the doctrine of res ipsa loquitur in the context of section
835, our high court stated that section 835, subdivision (a) “requires the
plaintiff to show that an employee of the public entity ‘created’ the dangerous
condition; in view of the legislative history … the term ‘created’ must be
defined as the sort of involvement by an employee that would justify a
presumption of notice on the entity’s part.” (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 836.) The same holds true here. The “completed
and accepted” doctrine is inapplicable as Riahi must show that an employee
of Regents was involved in creating the defective fascia under section 835,
subdivision (a). Riahi fails to do so and conceded that Regents was not
involved in the construction of Chou Hall.
The hearing on the motion was not reported, so we do not know what
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new arguments, if any, Riahi made at oral argument besides his citation to
Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962.
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D. The Condition Was Not Obvious to Support Constructive Notice
“A public entity had constructive notice of a dangerous condition within
the meaning of subdivision (b) of Section 835 only if the plaintiff establishes
that the condition had existed for such a period of time and was of such an
obvious nature that the public entity, in the exercise of due care, should
have discovered the condition and its dangerous character.” (§ 835.2, subd.
(b).) “Whether the dangerous condition was obvious and whether it existed
for a sufficient period of time are threshold elements to establish a claim of
constructive notice. [Citation.] Where the plaintiff fails to present direct or
circumstantial evidence as to either element, his claim is deficient as a
matter of law.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317
(Heskel).)
“A defect is not obvious just because it is visible.” (Martinez v. City of
Beverly Hills (2021) 71 Cal.App.5th 508, 520 (Martinez).) The defect must be
so obvious that the public entity should have discovered both “the condition
and its dangerous character.” (§ 835.2, subd. (b), italics added.)
A defect is also “not obvious just because it is nontrivial.” (Martinez, supra,
71 Cal.App.5th at p. 520.) Otherwise, “the constructive notice element
would be automatically satisfied in every instance where that dangerous
condition preexisted the accident and thus would effectively write the
negligence element out of the statute.” (Ibid.)
“[W]hether a nontrivial defect is sufficiently obvious, conspicuous, and
notorious that a public entity should be charged with knowledge of the defect
for its failure to discover it depends upon ‘all [of] the existing
circumstances.’ ” (Martinez, supra, 71 Cal.App.5th at p. 521). These
circumstances include the nature and extent of the defect, its location, and
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the length of time it has existed. (Nicholson v. City of Los Angeles (1936) 5
Cal.2d 361, 367.)
For example, in Heskel, supra, 227 Cal.App.4th at p. 315, the court
affirmed summary judgment in favor of the city and found that a protruding
base of a metal post on a sidewalk that plaintiff tripped over was not an
obvious condition to impute constructive notice to the city under section
835.2, subdivision (b). This was despite evidence put forth by plaintiff that
included pictures of the post and a declaration by a third party who tripped
over the post more than a year prior to plaintiff’s incident. (Id. at pp. 316.)
The court held that although plaintiff’s evidence “suggests that the condition
was above ground and visible, it does not demonstrate that it was of a
substantial size or so visible from public thoroughfares that the City, in the
exercise of due care, should have become aware of it and taken corrective
action to cure it.” (Id. at p. 321.)
Here, Regents presented substantial evidence that the defective fascia
was not an obvious condition. First, the fascia was approximately 12 to 14
feet above the floor and therefore not visible to anyone walking around in the
area. Second, the fact that the fascia was 1/8 to 1/16 of an inch short and cut
at an angle are not conditions that are obvious by any means or even visible,
unlike say a protruding metal post on the sidewalk. Buch, Peninsulators’
project manager, testified at his deposition that he could not tell from his
initial inspection of the fascia that it was cut short. It was only after he
measured the fascia that he discovered it had been cut short and at a slight
angle. Third, there had been no prior incidents of a fascia falling in the
building that would have alerted Regents to this defect and its danger.
Riahi does not brief the issue of whether the defective fascia was
obvious but argues that Regents did not have a reasonably adequate
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inspection system in place to discover the defective fascia. Although this
goes to whether Regents exercised due care under section 835.2, subdivision
(b)(1), this issue is irrelevant because Riahi fails to meet the threshold
element that the condition was sufficiently obvious. (Heskel, supra, 227
Cal.App.4th at p. 317.) “[I]n determining whether there is constructive
notice, the method of inspection has been held to be secondary. The primary
and indispensable element of constructive notice is a showing that the
obvious condition existed a sufficient period of time before the accident.”
(State v. Superior Court (1968) 263 Cal.App.2d 396, 400.) Riahi’s failure to
make such a showing entitles Regents to judgment as a matter of law.7
III. DISPOSITION
The order granting Regents’ motion for summary judgment is affirmed.
7 Although Riahi’s opposition to the motion below argued that the
dangerous condition existed for a sufficient period of time for Regents to have
fixed it prior to the incident, we need not discuss the issue since the condition
was not obvious.
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WISEMAN, J. *
We concur.
SIMONS, Acting P.J.
BURNS, J.
Riahi v. Regents of the University of California / A163399
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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