Opinion
B161503.
10-23-2003
DEJOURE WHITE, a minor, etc., Plaintiff and Appellant, v. WILFREDO CONTRERAS, et al., Defendants and Respondents.
Homampour & Associates and Arash Homampour for Plaintiff and Appellant. Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, John C. Dewell, and Colleen R. Smith for Defendants and Respondents.
This is the second appeal arising from a negligence action brought by minor DeJoure White (Plaintiff) through his father and guardian ad litem against defendants Wilfredo Contreras and Con Pro Serve Property Management Service (collectively Defendants). In the first appeal, we reversed a summary judgment entered in favor of Defendants. Plaintiff now appeals from a second summary judgment entered in favor of Defendants. We hold that because our prior decision held that triable issues of fact existed as to both duty and causation, it is the law of the case and binds the parties in subsequent proceedings. We therefore reverse the summary judgment.
FACTS AND PROCEDURAL HISTORY
We state the evidence supplied by appellant in accord with the summary judgment standard of review, which standard we discuss post.
We set forth only the facts necessary for this appeal. On June 10, 2000, minor Plaintiff sustained great bodily injury after falling through a screenless, open window in his familys apartment. Plaintiff through his guardian ad litem filed a negligence claim against Defendants.
A detailed history of this litigation may be found in our previous opinion in this matter. (White v. Contreras (Jan. 10, 2002, B150383) review den. and opn. ordered nonpub. May 1, 2002, S104555.)
Originally, Defendants brought a motion for summary judgment on the issue of duty, asserting that as a matter of law they had no duty to install window screens (first motion). Although their notice of motion identified the nonexistence of a triable issue of fact regarding duty as the sole ground for their motion, Defendants also argued in their moving papers that parental negligence—not Defendants conduct—caused the accident.
In opposition to the first motion, Plaintiff argued that triable issues of fact existed as to both duty and causation. Plaintiff submitted his fathers deposition testimony that Mr. Contreras covenanted to install a screen to show Defendants had assumed a duty to install a screen. Plaintiff also submitted the testimony of biomechanical expert Peter R. Francis, Ph.D., and safety expert Brad P. Avrit, P.E., to show causation. Defendants asserted in their reply brief that "[t]here is clearly no triable issue of fact as to duty and there is none as to causation, either."
At the hearing on the first motion, the trial court probed both the issues of duty and causation. The following exchange took place between Plaintiffs counsel, Arash Homampour, and the trial court:
"THE COURT: Lets assume the child goes out the window with the screen on the window. What happens to your cause of action?
"MR. HOMAMPOUR: I would argue that if the screen was improperly put in, there is no evidence that the screen was defective . . .
"THE COURT: The screen is on there. It is the right screen, properly mounted.
"MR. HOMAMPOUR: Then he fulfilled his duty by putting up a screen.
"THE COURT: And if that child went out the window, you wouldnt have a cause of action?
"MR. HOMAMPOUR: . . . I am arguing based on the uncontroverted evidence of our expert that if there had been a properly fitted screen in that window, this accident would not have happened, but then that again goes to causation."
The trial court granted summary judgment in favor of Defendants on the ground that as a matter of law they owed no duty to install window screens. In addition, the trial court found that Plaintiffs parents placement of a dresser under the unscreened window provided the only access to the window and, as a matter of law, the absence of a screen did not cause the alleged injury because screens exist only for insect control.
On appeal, this court unanimously reversed the summary judgment, holding genuine issues of material fact existed as to whether Mr. Contreras assumed a duty to install a screen and whether his breach of that duty caused Plaintiffs injury (first appeal). (White v. Contreras, supra, B150383.) We said that "the plaintiff has raised triable issues of fact as to the issues concerning the covenant or undertaking [to replace the window screens] and legal cause." We specifically determined that there were triable issues of fact with respect to both duty and causation. We denied Defendants request for rehearing and the California Supreme Court denied review.
In denying review, the California Supreme Court ordered that the Court of Appeal opinion not be published. (See California Rules of Court, Rule 976.)
On remand, Defendants again moved for summary judgment on the issue of causation (second motion). Defendants offered excerpts from the deposition testimony of Plaintiffs expert, Mr. Avrit, which was unavailable at the time of the first motion. They argued that Mr. Avrits testimony showed no triable issue of fact existed as to causation. At the hearing on the second motion, the trial court again addressed the issue of causation, commenting "that was the discussion we had extensively the last time this motion was heard."
On July 31, 2002, the trial court again granted summary judgment in favor of Defendants on causation and found the duty assumed by the Defendants was, at most, to install an ordinary window screen. The court said, "In sum, the Court found that Plaintiffs have failed to prove the essential elements of a cause of action for negligence, namely the elements of duty and causation." Plaintiff appeals this judgment.
DISCUSSION
I. Standard of Review
This court reviews a grant of summary judgment with "an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) As the trial court, we strictly construe the moving partys evidence and liberally construe the opposing partys evidence, and we consider all inferences favoring the opposing party that a trier of fact could reasonably draw from the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838.)
II. Law of the Case on Causation
Plaintiff argues that the trial court improperly granted summary judgment on the issue of causation in violation of the law of the case. He argues that the first appeal held that a triable issue of fact existed as to causation and, absent a substantial change in the evidence, that holding is the law of the case. He is correct.
The law of the case doctrine dictates the effect of a prior appellate decision on the subsequent proceedings in the litigation. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928.) To invoke the law of the case, the prior appellate decision must be (1) made by a court of last resort (United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712); (2) signed by a constitutional majority of the court (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1161 [citing Cal. Const., art. IV, §3]); and (3) a holding on a legal issue necessary to the disposition of the case (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498).
Law of the case does not apply when the prior ruling is based on the legal sufficiency of the facts presented and the material facts have changed substantially in subsequent proceedings. (See, e.g., In re Estate of Baird (1924) 193 Cal. 225, 234-236 [prior appellate decision on sufficiency of evidence not law of the case when the evidence on retrial materially changed]; Flood v. Templeton (1907) 152 Cal. 148, 158 [prior appellate decision sustaining demurrer not law of the case when facts stated in the subject pleading substantially changed].) Courts also decline to apply the doctrine when it would result in injustice (England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795-796.) Nor do courts apply law of the case when the previous opinion is superseded by an intervening change in the law. (Davies v. Krasna (1975) 14 Cal.3d 502, 507, fn. 5.)
There is no question that the first two requirements for application of the law of the case are met in this case. When the Supreme Court denied review of our first opinion, we became the court of last resort, and a constitutional majority of this court (unanimously) signed the previous opinion. The issues presented here are whether the prior opinions holding on causation was necessary to the decision and whether special circumstances exist that warrant departure from the doctrine.
A. Legal Holding Necessary to the Decision of the Case
For a prior holding to constitute the law of the case, it must be a legal ruling on an issue necessary to the disposition of the case; obiter dictum does not affect the substantive rights of the parties. (Gyerman v. United States Lines Co., supra, 7 Cal.3d at p. 498.) Defendants contend that our examination of and holding on causation in the first appeal exceeded the scope of our review and that, as dicta, it is not binding on the motion for summary judgment now before us. We disagree.
The parties plainly put causation at issue in both the first motion and the first appeal. Although the notice of motion stated that the first motion was based solely on the element of duty, Defendants claimed in their supporting papers that they were entitled to judgment as a matter of law on two grounds: duty and causation. Plaintiff responded with argument and evidence addressing both issues. Rather than objecting to the causation argument, Defendants asserted in their reply brief "[t]here is clearly no triable issue of fact as to duty and there is none as to causation, either" and further addressed both issues. Finally, Defendants separate statement asserted a fact relevant only to causation: the sole function of a window screen is insect control. Plaintiff disputed this with expert testimony to show the objective physical effects of the presence of a screen. On appeal, both parties extensively briefed the issue of causation. Because both parties litigated the issue of causation in the first motion, whether a triable issue of fact existed as to causation was well within the scope of our review.
Further, our holding that a disputed issue of fact existed regarding duty compelled us to address causation. Appellate courts are required to affirm on any grounds raised below, regardless of those relied on by the trial court. (Roger H. Proulx & Co. v. Crest-Liners, Inc. (2002) 98 Cal.App.4th 182, 195.) Indeed, Defendants urged us to affirm summary judgment on the alternate ground that no triable issue of material fact existed as to causation. Because the moving papers, separate statements, and oral argument for the first motion all addressed causation as a basis for the trial courts ruling, we necessarily addressed and decided the issue of causation.
B. Material Facts Substantially the Same in Further Proceedings
A prior appellate ruling on the legal sufficiency of the facts presented is the law of the case when the material facts presented are substantially the same in subsequent proceedings. (See, e.g.,In re Estate of Baird, supra, 193 Cal. at pp. 234-236; Flood v. Templeton, supra, 152 Cal. at p. 158.) Thus, a prior appellate ruling reversing a grant of summary judgment on the ground that a triable issue of fact exists is the law of the case if the evidence does not substantially change from the first summary judgment motion to the second. To avoid the operation of the law of the case doctrine, the new evidence must do more than add to the pre-existing conflict in the evidence. (Coats v. General Motors Corp. (1938) 11 Cal.2d 601, 606 [additional witnesses that furthered existing conflict in evidence did not affect applicability of law of the case].)
In support of the second motion, Defendants offered the deposition testimony of one of Plaintiffs safety experts, Mr. Avrit, who opined that an unguarded window was a condition dangerous to human life. Defendants contention that Mr. Avrits testimony negated any triable issue of fact as to causation is incorrect. Mr. Avrits opinion that a safe window requires a guard and his statement that he based his opinions on Dr. Franciss physical testing do not undercut Plaintiffs other offered evidence. Defendants alternate position that Mr. Avrits testimony has no evidentiary value because it was speculative, even if correct, would have no impact because it does not affect Plaintiffs remaining evidence—the testimony of expert Dr. Francis—which is exactly the same as the evidence offered at the first appeal. We previously held that such evidence created a genuine issue of triable fact on causation. (White v. Contreras, supra, B150383.) Therefore, Defendants purported new evidence does not affect the applicability of the law of the case.
Plaintiff contends that Mr. Avrits deposition testimony, taken seven days before the first summary judgment hearing, was available for the first summary judgment motion and thus does not constitute "new" evidence within the purview of Code of Civil Procedure section 437c, subdivision (f)(2). Nevertheless, we address this evidence.
Defendants incorrectly argue the law of the case does not apply because the sufficiency of the evidence rests on the credibility of Plaintiffs experts, Dr. Francis and Mr. Avrit. Witness credibility is not at issue here. A witnesss credibility is a factual determination not appropriate for a court to consider at the summary judgment stage. (Binder v. Aetna Life Ins. Co., supra, 75 Cal.App.4th at p. 840.)
C. Exceptions for Injustice, Intervening Change in the Law
Courts decline to apply the law of the case doctrine when it would result in injustice. (England v. Hospital of Good Samaritan, supra, 14 Cal.2d at pp. 795-796.) Here, both parties raised, argued, and supplied evidence on the issue of causation in the first summary judgment motion and on appeal. No injustice results from enforcing the consequences of the first appeal, which decided issues squarely presented and fully litigated by the parties. To the contrary, an injustice would result from not applying the law of the case doctrine here, for no change of facts, law, or circumstances has been presented to justify a departure from this courts prior ruling.
Law of the case also does not apply when the appeal is followed by an intervening change in the law that undermines that decision. (Davies v. Krasna, supra, 14 Cal.3d at p. 507, fn. 5.) As no subsequent authority has altered the applicable law since the first appeal, this exception to the doctrine does not apply here.
III. Law of the Case on Duty
The trial court erred when it found that no triable issue of fact existed on the issue of a duty to install anything other than an ordinary insect screen. In the first appeal, based on the fact that the parties raised the issue of duty, we held that a triable issue of fact existed regarding whether Defendants assumed a duty to install a screen in Plaintiffs apartment, and that holding is the law of the case. The evidence on duty did not change at all from the first appeal to the second motion. Finally, no injustice will result from the application of the law of the case for, as we noted previously, Defendants fully and fairly litigated this issue during the first appeal and there has been no intervening change in relevant law. Thus, our first holding is the law of the case. Whether Defendants assumed a duty and, if so, the scope of the duty Defendants assumed, i.e. what exactly they covenanted to install, are issues of fact to be determined at trial and may not properly be resolved on summary judgment.
IV. Judicial Notice and Prior Decisions Concerning the Presence of a Window Screen
The trial court took "judicial notice" of the cases of Gustin v. Williams (1967) 255 Cal.App.2d Supp. 929, Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, and Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, and erroneously concluded that these decisions established as a matter of law that insect screens are not intended to keep children from falling out of windows. Although language in these cases suggests that the presence of a window screen is to keep insects out and not to prevent children from falling out, they do not hold as a matter of law that the lack of a window screen is not a cause of a childs fall from a window. Rather, each of these cases concerned whether the defendant had a duty to install screens. (Gustin, at p. 933 ["The trial court was correct in its conclusion of law (number 3) that Ordinance 1773 `did not establish a statutory duty of care contravening the common law no duty rule"]; Pineda, at p. 1405 ["A landlord has no duty of care to assure that his tenants children do not fall out of ordinary second story windows. We affirm summary judgment in favor of the defendant landlord"]; Amos, at p. 898 ["we conclude . . . . Defendants have failed to show, as a matter of law, they neither owed nor breached a duty of care to Carl"].)
Any suggestion in these cases that a screen would not prevent a person from falling out a window is not a legal conclusion. Nor would such a conclusion apply here because a court may not take judicial notice of factual findings in other cases. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569.) Moreover, even if these decisions did state some legal principle on causation, we are not bound by them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456; Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App.3d 1141, 1147 ["we are not bound by the holding in the . . . case inasmuch as one district or division may decline to follow a prior decision of a different district or division"], disapproved on other grounds in Laurel Heights Improvement Assn v. Regents of University of California (1988) 47 Cal.3d 376, 427, fn. 28.) Therefore, the trial court erred insofar as it read these cases to establish law binding on us on the issue of causation.
V. Request for a New Judge on Remand
We decline Plaintiffs request that we assign a different judge to hear further proceedings in this action pursuant to Code of Civil Procedure section 170.1, subdivision (c). The power of an appellate court to assign a new judge "must `be used sparingly and only whether the interests of justice require it. [Citation.]" (Kent v. Superior Court (1992) 2 Cal.App.4th 1392, 1395.) It appears that the trial court simply erred, in good faith, on a legal issue. There is not sufficient evidence to suggest that the interests of justice require a reassignment of judicial officers.
DISPOSITION
The judgment is reversed. Appellant shall recover his costs on appeal.
We concur: TURNER, P.J., and ARMSTRONG, J.