Opinion
B336044
10-16-2024
MONIQUE MAYO-LEVIN, Plaintiff and Appellant, v. COMMUNITY CORPORATION OF SANTA MONICA et al., Defendants and Respondents.
Law Offices of Mauro Fiore, Jr., Mauro Fiore, Jr., Gilbert Perez, III; Law Offices of Lisa J. Jackson and Lisa J. Jackson for Plaintiff and Appellant. Murchison & Cumming and Darin W. Flagg for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 21STCV19068, Lynne M. Hobbs, Judge.
Law Offices of Mauro Fiore, Jr., Mauro Fiore, Jr., Gilbert Perez, III; Law Offices of Lisa J. Jackson and Lisa J. Jackson for Plaintiff and Appellant.
Murchison & Cumming and Darin W. Flagg for Defendants and Respondents.
CHAVEZ, J.
Monique Mayo-Levin (appellant) appeals from a judgment entered after the trial court sustained a demurrer filed by respondents Community Corporation of Santa Monica and Virginia Village (collectively Community Corp.) here involving a single cause of action for dangerous condition of public property and injury pursuant to Civil Code section 1714. Appellant initially brought the action against the City of Santa Monica (the city) and later added Community Corp. as doe defendants. After the trial court granted the city's motion for summary judgment and dismissed the city from the case, the trial court permitted appellant to amend her complaint. Community Corp. demurred to the amended complaint, asserting the doctrine of issue preclusion barred appellant's cause of action against Community Corp. The trial court agreed. Although appellant had asserted new allegations concerning the circumstances surrounding her injury, the court found "[appellant] cannot, by negligence or design, withhold the [new] allegations . . . and assert them now that the City's MSJ was granted on the grounds that the defect was trivial."
The city is not a party to this appeal. Appellant also sued the County of Los Angeles, which was dismissed as a defendant on September 22, 2021.
The sole issue in this appeal is whether the trial court erred in relying on the doctrine of issue preclusion, or collateral estoppel, to rule in favor of Community Corp. We find no error and affirm the judgment.
The terms issue preclusion and collateral estoppel describe the same legal doctrine. "Issue preclusion, . . . historically called collateral estoppel, describes the bar on relitigating issues that were argued and decided." (DKN Holdings LLC v. Faerber (2015)
BACKGROUND
The lawsuit
In August 2020, appellant stepped from an apartment complex's walkway onto an abutting public sidewalk and tripped on an uplifted sidewalk slab. Appellant brought suit against the city and does 1-20, asserting a single cause of action for dangerous condition of public property and seeking liability under Civil Code section 1714 from the allegation she tripped and fell over an uneven piece of pavement at 2524 Virginia Avenue in the city. Appellant later filed amendments to her complaint naming Community Corp. as defendants. Community Corp. answered the complaint, asserting, among other things, an affirmative defense of trivial defect.
The city's summary judgment motion
In November 2022, the city filed a motion for summary judgment, arguing the sidewalk condition was trivial as a matter of law and no aggravating circumstances existed. Appellant opposed the motion and asserted when she tripped "she was looking straight ahead, and there were crumbly leaves and shade on the sidewalk from a nearby tree." In describing the alleged dangerous condition, appellant did not make any mention of the hedges and planter wall on Community Corp.'s property.
The trial court heard argument on the city's motion for summary judgment on July 6, 2023. Thereafter, having considered the moving, opposing, and reply papers, the trial court granted the city's motion, finding the defect was trivial as a matter of law. The court specified, "Although [appellant] testified 61 Cal.4th 813, 824.) We use both terms interchangeably in this opinion, as was done in the proceedings below. that there were tiny crumbling leaves on the sidewalk at the time of her fall, there is no evidence that the leaves caused contributed to [sic] the defect. Thus, [appellant] fails to provide evidence that other conditions at the time of her fall made the condition more dangerous. [Appellant's expert's] declaration likewise fails to identify any other conditions that would make the uplift dangerous."
Appellant appealed the trial court's ruling on the city's motion for summary judgment, but later dismissed the appeal.
Community Corp.'s summary judgment motion
On January 4, 2023, Community Corp. filed a motion for summary judgment on the ground Community Corp. is not public entity and did not own, manage or control the sidewalk where appellant fell. In March 2023, the court denied the motion. The court noted "[a]lthough [Community Corp.] did not own or control the sidewalk, the evidence shows that [Community Corp.] allowed the root system to grow . . . and cause the sidewalk to lift, creating the condition which caused [appellant's] fall." Thus, triable issues of material fact remained as to Community Corp.'s involvement in creating the allegedly dangerous condition. The issue of trivial defect was not raised or determined in Community Corp.'s motion for summary judgment.
Community Corp.'s motion for judgment on the pleadings
In August 2023, after the court's ruling on the city's summary judgment motion, Community Corp. brought a motion for judgment on the pleadings, arguing that since the court had ruled as a matter of law that the sidewalk defect was trivial, Community Corp. was entitled under collateral estoppel and issue preclusion principles to judgment on the same grounds.
On September 19, 2023, the motion for judgment on the pleadings was granted, and appellant was granted 20 days to amend her complaint. The court noted, "under collateral estoppel and issue preclusion principles, [Community Corp. is] entitled to judgment on the pleading. The Court finds the factual grounds upon which [appellant] bases its claims against moving [Community Corp.] to be the same."
First amended complaint (FAC)
On October 5, 2023, appellant filed her FAC, adding new allegations that "as [she] walked down the sloped walkway toward the sidewalk, a planter-wall and hedges obscured [her] view of a raised sidewalk slab." She also newly alleged when she "reached the bottom of the sloped walkway and turned left to step onto the sidewalk, she did not see the raised slab due to the planter-wall and hedges which concealed the raised slab."
Community Corp.'s demurrer
In November 2023 Community Corp. filed a demurrer, arguing collateral estoppel barred appellant's claim, and appellant could not plead new facts to relitigate the issue of trivial defect. Community Corp. cited, among other things, MIB, Inc. v. Superior Court (1980) 106 Cal.App.3d 228, 235, for the proposition a plaintiff "cannot escape the bar of the prior decisions by asserting . . . other evidence which was not introduced in the earlier proceedings." The demurrer included a request for judicial notice, asking the trial court to take judicial notice of the documents supporting issue preclusion.
The trial court conducted a hearing on December 18, 2023. The court granted Community Corp.'s request for judicial notice and sustained Community Corp.'s demurrer without leave to amend. The court found issue preclusion applied. Appellant brought the exact same allegations, under the exact same cause of action, against both the city and Community Corp. The issue was actually litigated and necessarily decided when the court granted the city's motion for summary judgment. The ruling was final, and preclusion was sought against appellant, who was the party against whom the motion for summary judgment was brought. As to appellant's new allegations regarding the hedges and planter on Community Corp.'s property, the court stated: "[appellant] cannot relitigate the issue of whether the defect was trivial by asserting new allegations or evidence that could have been raised in the prior proceeding, i.e., in opposition to the motion for summary judgment." The court quoted Warga v. Cooper (1996) 44 Cal.App.4th 371, 377-378, for the proposition "'[i]f the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.'"
On January 16, 2024, the trial court entered a judgment of dismissal following its order sustaining Community Corp.'s demurrer. On February 13, 2024, appellant filed her notice of appeal.
DISCUSSION
I. Applicable law and standard of review
"'In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.'" (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) "'"'"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law .... We also consider matters which may be judicially noticed." [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.'"'" (Ibid.)
II. Principles of issue preclusion
"'Collateral estoppel, or issue preclusion, "precludes relitigation of issues argued and decided in prior proceedings."[']" (Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556.) The doctrine applies when "'(1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.'" (Ibid.)
Appellant takes issue with the first and fifth elements of the doctrine of issue preclusion.
III. Identical issue
Appellant agrees that issue preclusion only applies when there are "'identical factual allegations'" in both proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) As set forth in Lucido, "[t]he 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings...." (Ibid.) Appellant argues that the factual allegations asserted against the city in this matter are not identical to the factual allegations asserted against Community Corp.
We disagree. Appellant alleged a single cause of action in her complaint against all defendants in this matter. The exact same allegations, supporting the exact same cause of action, were alleged against the city and Community Corp.
Appellant argues the FAC asserted new, aggravating circumstances against Community Corp. Appellant argues these new allegations make the two cases factually separable and distinct from each other. However, the law does not permit a plaintiff to avoid the doctrine of issue preclusion by asserting new factual allegations. "An exception to collateral estoppel cannot be grounded on the alleged discovery of more persuasive evidence. Otherwise, there would be no end to litigation." (Evans v. Celotex Corp. (1987) 194 Cal.App.3d 741, 748.) For this reason, issue preclusion "'will apply to all issues which were involved in the prior case even though some factual matters or legal arguments which could have been presented in the prior case in support of such issues were not presented.'" (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1301 (Frommhagen).) Thus, the prior determination as to trivial defect in this matter applies "'with respect to every matter which might have been urged to sustain or defeat its determination.'" (Ibid.)
Appellant's attempt to distinguish Evans v. Celotex, supra, 194 Cal.App.3d 741 is not well taken. The Evans court was addressing the plaintiffs' argument that "collateral estoppel cannot be applied if new facts have occurred since the judgment on the prior hearing." (Id. at p. 747.) The Evans court rejected the plaintiffs' argument, emphasizing that their alleged new evidence did "not operate to prevent the application of collateral estoppel." (Id. at p. 748.)
During the summary judgment proceedings brought by the city, appellant had the opportunity to inform the court "whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate." (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734.) "The decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial." (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) The court may consider aggravating circumstances such as "whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, . . . whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian's view of the defect." (Ibid.) Thus, the analysis of whether a sidewalk defect is trivial as a matter of law involves a two-step process. First the court reviews evidence of the "'"type and size of the defect."'" (Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 758.) If that analysis reveals a trivial defect, we then consider "'"evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]."'" (Ibid.) There is no requirement in the case law that such aggravating factors be within the control of the party responsible for the dangerous condition.
Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, raised by appellant for the first time in her reply brief, is irrelevant. The Annocki court held that although restaurant owners had no duty to control the condition of an adjacent roadway, they had a duty to warn patrons of the restaurant that only a right turn could safely be made from the restaurant's exits. (Id. at pp. 38-39.) The matter did not involve issue preclusion, nor did it suggest that appellant is permitted to assert new allegations regarding aggravating circumstances after a final ruling on an issue has been made.
Though appellant could have brought to the court's attention in the summary judgment proceedings the aggravating factors she now asserts against Community Corp., she did not do so. In ruling on the city's summary judgment motion, the court specifically noted: "[appellant] fails to provide evidence that other conditions at the time of her fall made the condition more dangerous. [Appellant's expert's] declaration likewise fails to identify any other conditions that would make the uplift dangerous." Having failed to identify the hedge and planter wall as aggravating factors at the time the issue was decided, appellant cannot do so now. (Frommhagen, supra, 197 Cal.App.3d at p. 1301.)
Appellant attempts to distinguish Frommhagen by arguing that in Frommhagen, while the bulk of allegations were barred by collateral estoppel, there were two issues alleged by the plaintiff that created new duties each year and therefore the plaintiff could not have litigated such claims in the previous proceeding. (Frommhagen, supra, 197 Cal.App.3d at p. 1303.) Appellant argues that similarly here, she was not required to present evidence of aggravating factors on Community Corp.'s walkway when litigating against the city, because such evidence could not have defeated the city's motion for summary judgment. The principles set forth in Fielder v. City of Glendale, supra, 71 Cal.App.3d at page 734 and Caloroso v. Hathaway, supra, 122 Cal.App.4th at page 927 undermine appellant's argument. Having failed to assert these aggravating factors against the city, she was not permitted to avoid the preclusive effect of the summary judgment ruling by asserting them later.
Direct Shopping Network, LLC v. James (2012) 206 Cal.App.4th 1551 is instructive. There the plaintiff sued three publications and an individual. The publications filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion), and the individual subsequently filed his own anti-SLAPP motion. The publications' anti-SLAPP motion was denied by the trial court, a ruling that was reversed on appeal. Following remand, the trial court permitted the plaintiff to present new evidence in support of its claims. Based on the new evidence, the trial court denied the individual's anti- SLAPP motion. On appeal, the individual contended the doctrine of collateral estoppel barred the plaintiff from relitigating the merits of his anti-SLAPP motion. The Direct Shopping Network court agreed. Among other things, the plaintiff argued on appeal that "new facts came to light that were unavailable at the time the prior motion was litigated." (Direct Shopping Network, at p. 1561.) The Direct Shopping Network court rejected this argument, noting that "new evidence, however compelling, is generally insufficient to avoid application of collateral estoppel." (Ibid.) Similarly here, appellant attempted to rely on new evidence she failed to raise in opposition to the city's summary judgment motion. "It is precisely this 'second bite at the apple' that collateral estoppel is designed to bar." (Id. at p. 1562.) IV. Party or party in privity to the prior proceeding
Appellant next takes issue with the fifth element of issue preclusion-the requirement of privity. Privity in this context refers to "'a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights.'" (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069.) Appellant argues the city and Community Corp. are not in privity with each other, as the city did not have the right to control the property owned by Community Corp. Without a mutual right to control the condition on the property that created the dangerous condition, appellant argues, there was no privity between the parties.
Appellant seemingly misunderstands or misstates the doctrine of issue preclusion. As set forth above, the doctrine of issue preclusion applies when "'the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.'" (Gabriel v. Wells Fargo Bank, N.A., supra, 188 Cal.App.4th at p. 556.) Because appellant is the party "against whom collateral estoppel is asserted," the fifth element of the doctrine is met. (Ibid.) As the Supreme Court has noted, "issue preclusion can be raised by one who was not a party or privy in the first suit." (DKN Holdings v. Faerber, supra, 61 Cal.4th at p. 824.) Thus, although Community Corp. was not a party to the summary judgment proceedings nor in privity with the city, Community Corp. was entitled to raise the doctrine.
Appellant was a party to the summary judgment motion filed by the city. Appellant is the party against whom issue preclusion is sought in this matter. Thus, no privity is necessary, and the doctrine was properly applied.
We decline to address appellant's arguments regarding whether appellant's deposition testimony may be used against her in deciding Community Corp.'s demurrer, as appellant's testimony is not necessary to our resolution of this appeal.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs of appeal.
We concur: LUI, P. J., HOFFSTADT, J.