Filed 5/28/15 Aleksanian v. County of Los Angeles CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KNAR ALEKSANIAN, Plaintiff and Appellant,

v. COUNTY OF LOS ANGELES, Defendant and Appellant. G050088 (Super. Ct. No. LC098651)

O P I N I O N

Appeal from a judgment and postjudgment order of the Superior Court of Orange County, Derek W. Hunt, Judge. Judgment reversed; postjudgment order moot.
Law Offices of Julia Sklar and Juli a Sklar for Plaintiff and Appellant.
Law Offices of Marc J. Wodin and Marc J. Wodin for Defendant and Appellant.
* * *2 Plaintiff and appellant Knar Alek sanian appeals from the summary judgment entered in favor of defendant an d appellant County of Los Angeles (County).
Aleksanian sued the Co unty to recover for injuries she suffered when she tripped over a crack in the floor of a courthouse lobby . The County sought summary judgment on Aleksanian’s single cause of action for dang erous condition of public property, arguing it
could not be liable because it neither ow ned nor controlled the lobby floor where Aleksanian fell. According to the County, it deeded to the stat e title to the entire courthouse before Aleksanian fell, and it did not control the lobby floor because the agreement for the County and the state to jointly use th e courthouse building placed responsibility for maintaining and repairing the floor on the state. The trial court agreed and granted the County’s motion. We reverse. Although it is undisputed the County did not own the courthouse at the time of Aleksanian’s fall, the plain language of the agreement between the County and the state delegates responsib ility for the maintenanc e and repair of the entire lobby area to the County. The ability to remedy the alleged dangerous condition created by the crack in the lobby floor establishes the C ounty had sufficient control to
make it liable if Aleksanian establishes the othe r elements of her claim. Accordingly, the agreement between the County and the state c oncerning the joint us e of the courthouse does not satisfy the County’s initial burde n on its summary judgment motion. The County also appeal s from a postjudment order denying the County’s
motion for defense costs. Based on our conclu sion the trial court erred in granting the County summary judgment, no basis exists to support the County’s recovery of its defense costs. The postjudgment order and the County’s appeal are therefore moot.3 I

F ACTS AND P ROCEDURAL H ISTORY
In December 2011, Aleksanian visite d the Los Angeles Superior Court, Van Nuys Courthouse East (Van Nuys Courthou se) to help her son pay a traffic ticket. As she approached the elevator s in the main floor lobby, Aleksanian tripped and fell over a crack in the terrazzo floor, breaking her arm and sustaining other injuries. At the time Aleksanian fell, the State of California, acti ng through the Judicial Council of California, Administrative Office of the Courts (Judicial Council) owned the Van Nuys Courthouse. The County previously owned the Va n Nuys Courthouse. Between 1988 and 2002, the Legislature passe d various trial court funding and facilities acts authorizing
all counties to transfer their trial court faciliti es to the Judicial Council. (See Gov. Code, §§ 70301 et seq., 77000 et seq., 77200 et seq.) 1 This legislation required each county and
the Judicial Council to enter in to agreements establishing th e terms and conditions for the county to transfer ownership and responsibility for its trial court facilities. (See, e.g., §§ 70321, 70312.) For trial cour t buildings that a county con tinued to use jointly with the Judicial Council, the legislation required the co unty and the Judicial Council to enter into a separate agreement establishing the terms and conditions for the shared use of the building, including responsibility for ongoing maintenance and administration. (See, e.g., § 70343.) In November 2008, the County and the Judicial Council entered into the “Transfer Agreement Between the Judicial Council of California, by and through the Administrative Office of the Courts, and the C ounty of Los Angeles for the Transfer of Responsibility for and Title to the Van Nu ys Courthouse East” (Transfer Agreement) and the “Joint Occupancy Agreement Between the Judicial Council of California, by

1 All statutory references are to the Government Code unless otherwise stated.4 and Through the Administrative Office of th e Courts, and the County of Los Angeles for the Van Nuys Courthouse East” (Joint Occu pancy Agreement). Under these Agreements, the County d eeded title to the Van Nu ys Courthouse to the Judicial Council in December 2009. The Joint Occupancy Agreem ent divided the Van N uys Courthouse into three areas—the “Court Exclusive-Use Area,” the “County Exclusive-Use Area,” and the
“Common Area”—and also divide d responsibility for each of these areas between the
Judicial Council and the Count y as described below.
Aleksanian sued the Coun ty to recover for her in juries. The operative complaint asserts a single cause of action for dangerous condition of public property, alleging the County owned, maintained, and controlled the Van Nuys Courthouse. 2 The County moved for summary judgment, argui ng Aleksanian could not establish an
essential element of her clai m because (1) the County neit her owned nor controlled the property where Aleksanian fell and (2) the cr ack was too small to constitute a dangerous
condition as a matter of law. The trial court granted the moti on on the first ground without ruling on the second. The court concluded th e County met its initial burden by showing it transferred ownership of the Van Nu ys Courthouse to the Judicial Council two years before Aleksanian fell, and the Transfer Agreement and Joint Occupancy Agreement assigned responsibility to the Stat e for maintaining the area where Aleksanian fell. According to the trial court, Aleksani an failed to meet her burden to establish a triable issue because she did not dispute th e State owned the Van Nuys Courthouse and she presented no evidence show ing the County actively main tained the area where she fell despite the terms of the Transfer Agre ement and Joint Occupancy Agreement.

2 Aleksanian also sued the Judicial Council, the Administrative Office of the Courts, and the Superior Court of California, County of Los Angeles, but the trial court dismissed Aleksanian’s claims against these defendants base d on her failure to comply with claim presentation requirements. Th e County nonetheless filed an indemnity cross-complaint against these defendants.5 Based on the ruling granting its su mmary judgment motion, the County moved for an award of defense costs on the gr ound Aleksanian did not bring this action
“with reasonable cause and in th e good faith belief that there was a justifiable controversy
under the facts and law which warranted the f iling of the complaint.” (Code Civ. Proc., § 1038, subd. (a).) The trial court denied the motion, finding Aleksanian brought the action in good faith. Aleksanian appeals from the summary judgment entered in the County’s favor, and the County appeals from the pos tjudgment order denying its motion for
defense costs.

II

D ISCUSSION

A. Governing Summary Judgment Principles “A defendant moving for summary ju dgment bears the initial burden to show the plaintiff’s action has no merit. [Citation.] The de fendant can meet that burden by either showing the plaintiff cannot establish one or more elements of his or her cause of action or there is a complete defense to the claim. [Citations.] To meet this burden, the defendant must present ev idence sufficient to show he or she is entitled to judgment as a matter of law. [Citation.] ‘“If a plain tiff pleads several theories, the defendant has the burden of demonstrating there are no materi al facts requiring trial on any of them.”’ [Citation.]” ( Carlsen v. Koivumaki (2014) 227 Cal.A pp.4th 879, 889 ( Carlsen ).) “Once the defendant meets that burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts.” ( Carlsen , supra , 227 Cal.App.4th at p. 889.) The plaintiff opposing the motion, however, has no burden to present any ev idence until the defendant meet s his or her initial burden. ( Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940 [“ ‘Where the eviden ce presented by6 defendant does not support judgment in hi s favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff’”].) We review a trial court’s ruling on a summary judgment motion de novo. ( Carlsen , supra , 227 Cal.App.4th at p. 890.)

B. The County Failed to Meet Its Initial Burden to Show It Did Not Control the Area Where Aleksanian Fell In California, a public entity is liabl e for an injury on ly as provided by statute. (§ 815.) “In other words, direct to rt liability of public en tities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Co de section 1714.” ( Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Section 835 makes a public entity lia ble for an injury caused by a dangerous condition of its property. 3 Section 830, subdivision (c) defines “‘[p]roperty of a public entity’” and “‘public property’” as real or personal property “owned or controlled by the public entity.” Because this definition is “disjunctive rather than conjunctive,” a public entity is liable if it eith er owned or controlled the property that caused the injury. ( Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 989-990 ( Huffman ).) “[C]ontrol exists if the public entity has the ‘power to prevent, remedy or guard against the dangerous condition.’ [Citation].” ( Id . at p. 990; see Public Utilities

3 Specifically, section 835 declares “a public entity is liable for injury caused by a dangerous condition of its pr operty if the plaintiff establis hes that [(1)] the property was in a dangerous condition at the time of the injury, [(2)] th at the injury was proximately caused by the dangerous condition, [(3)] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [(4)] that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of hi s employment created the dange rous condition; or [¶] (b) The public entity had actual or construc tive 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.”7 Com. v. Superior Court (2010) 181 Cal.A pp.4th 364, 375-376 ( PUC ) [Although Public Utilities Commission had authority to regulate railroad crossing and order others to correct dangerous condition, it lacked control over crossing b ecause it had no authority to correct dangerous condition itself].) Here, the County’s motion turns on whether the Coun ty controlled the floor in the lobby where Aleksanian fell because the parties agree the County did not own the Van Nuys Courthouse at the time of the fa ll. To meet its initial summary judgment burden on the control issue, th e County points to the two sections of the Joint Occupancy Agreement that assign responsibility for mainta ining and repairing th e “Common Area.” Section 3.2.2.1 states, “During the Te rm, [the Judicial Council, as] the Managing Party[,] is responsible for the Operation of the Common Area under this [Agreement] . . . . During the Common Area Delegation Period (defined below [in section 3.2.2.2]), the County shall undert ake the Operation of the Common Area in
accordance with the Service Standards.” Section 3.2.2. 2 states, “Notwithstanding anything to the contrary in this [Agreemen t], commencing on the Re sponsibility Transfer Date and continuing for as long as the Parties agree thereafter consistent with the terms of this [Agreement] (the ‘Common Area Delegation Period’), the [Judicial] Council exclusively delegates all of its rights and duties as Managing Party to the County (the ‘Common Area Delegation’), and the County accepts the Common Area Delegation and agrees to act in its delegated role as th e Managing Party on beha lf of the [Judicial] Council. During the Common Area Delegation Period, the County sh all be entitled to all rights provided to, and shall be obligated to perform all duties requi red of, the Managing Party in this [Agreement] . . . .” The par ties do not dispute that the term “Operation” includes the maintenance and repair of the designated area, the “Service Standards”
referred to in section 3.2.2.1 are set fort h in Attachment 3 to the Joint Occupancy Agreement, the term “Common Area” includ es the lobby where Aleksanian fell, and Aleksanian fell during the “C ommon Area Delegation Period.”8 The County contends these two secti ons show it lacked control over the lobby floor where Aleksanian fell because these sections plac e responsibility for maintaining and repairing the floor on the Ju dicial Council. Acco rding to the County, these two sections do not require it to repa ir and maintain all portions of the Common Area, but rather only those portions expre ssly identified in the Service Standards.
Because the Service Standards do not refer to the floor, the County concludes it had no responsibility to maintain or repair the floor, and therefore lacked the control required to impose liability. We disagree with the Coun ty’s interpretation of these two sections because the plain language of these provisio ns assigns responsibility for the maintenance and repair of the entire Common Area to th e County. As explained above, a party’s ability to repair a dangerous condition estab lishes control over the property for purposes of sections 830 and 835. (See Huffman , supra , 84 Cal.App.4th at p. 990; PUC , supra , 181 Cal.App.4th at pp. 375-376.) “The basic goal of contract interpretati on is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] When a co ntract is reduced to writing, the parties’ intention is determin ed from the writing alone, if possible. [Citation.] ‘The words of a contract are to be understood in their ordinary and popular sense.’ [Citations.]” ( Founding Members of the Newp ort Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944 , 955.) “If contractual language is clear and explicit and does no t involve an absurdity, the plain meaning governs.” ( Service Employees Internat. Union, Local 99 v. Options —A Child Care & Human Services Agency (2011) 200 Cal.App.4th 869, 879 .) When, as here, the parties
offer no extrinsic evidence on the contract’s meaning, we independently construe the contract. ( Founding Members , at p. 955.) Section 3.2.2.1’s plain la nguage makes the Judicial Council responsible for the maintenance and repair of the entire Common Area without limitation. Section 3.2.2.2 then delegates all of the Judi cial Council’s rights and duties to maintain9 and repair the Common Area to the County. Nothing in section 3.2.2.2 limits that delegation to only certain portions of th e Common Area or otherwise restricts the County’s delegated responsib ility to maintain and repair the entire Common Area. The
second sentence in section 3. 2.2.1 acknowledges this dele gation and requires the County to maintain and repair the Common Area “i n accordance with the Service Standards.” Contrary to the County’s contention, neither this sentence nor the Service Standards attached to the Joint Occupa ncy Agreement purports to limit the County’s responsibility to maintain and repair the Co mmon Area to only those porti ons identified in the Service
Standards. The Service Standards merely estab lish how the Common Area must be maintained and repaired, not what portions must be maintained and repaired. For example, the Service Standards provide “electrical panels” must be maintained to design specification, inspected as required, and repa ired or replaced as needed, and “plumbing fixtures (e.g., toilets, sinks, urinals, faucets) ” simply must be repaired or replaced as
needed. The Service Standard s also provide how the County must respond to requests for service by the Judicial Council. For exampl e, the County must respond within two hours if the request involves “risk or injury to pe rsons and/or damage or loss of property,” but the County has four hours to respond if the request involves “significant discomfort to or disruption of building o ccupants’ operations (e.g., air conditioning).” Accordingly, we conclude these Join t Occupancy Agreement provisions do not satisfy the County’s initial burden to show Aleksanian coul d not establish the essential element of control, and therefore the trial court erred in granting the motion. In reversing the judgment, we do not addre ss the second ground on which the County sought summary judgment—the crack was t oo small to constitute a dangerous condition
as a matter of law. The trial court did not r each that issue and neither party has briefed it in this court. We may not affirm a summary judgment on a ground not relied upon by the trial court without first requesting briefing from the parties. (Code Civ. Proc., § 437c,10 subd. (m)(2).) We decline to request briefing because neither party has asked us to reach
this issue.

C. The County’s Cross-Appeal is Moot The County cross-appeals from the trial court’s order denying the County’s
motion for defense costs under Code of Civ il Procedure section 1038. That section allows a defendant that successfully moves for summary judgment in an action under the Government Claims Act (§ 810 et seq.) to seeking its defense costs on the grounds the plaintiff brought the action without reasonabl e cause and a good faith belief there was a justifiable controversy. The section also st ates it only applies if the defendant brings a summary judgment motion and the motion is granted. (Code Civ. Proc., § 1038, subd. (d).) Because we reverse the trial court decision granting the County summary judgment, this section no longer applies at this time and the County ’s cross-appeal is
therefore moot.

III
D ISPOSITION The judgment is reversed and the pos tjudgment order is moot. Aleksanian shall recover her costs on appeal.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.