Filed 3/29/13 Williams v. State of California 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


LISA WILLIAMS et al.,

     Plaintiffs and Appellants,                                        G046659

         v.                                                            (Super. Ct. No. 30-2010-00390305)

STATE OF CALIFORNIA,                                                   OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Reversed and remanded.
                   Bailey & Partners, Patrick E. Bailey and Keith A. Lovendosky for Plaintiffs
and Appellants.
                   Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant
Attorney General, and Paul T. Hammerness, Deputy Attorney General, for Defendant and
Respondent.


                                          *                  *                  *
              Plaintiffs Lisa Williams, as guardian ad litem for A.W., and Jennifer
Eslinger, as guardian ad litem for A.E., sued defendant State of California for damages,
alleging the minors were injured at Huntington State Beach (beach) because of a
dangerous condition. After the court granted defendant‟s motion in limine excluding
evidence plaintiffs claimed showed defendant had notice of the dangerous condition, the
parties ultimately stipulated to a nonsuit because, without that evidence, plaintiffs were
unable to prove one of the elements of their case. Plaintiffs appeal, claiming the court
erred in excluding that evidence and in preventing their expert from relying on it in his
testimony. We conclude the court relied on an incorrect standard in excluding the
evidence and erred when it ruled the expert could not testify that he had relied on that
evidence in forming his opinions. We reverse the judgment and remand for the court to
reconsider the motion in limine in light of the proper standard.


                        FACTS AND PROCEDURAL HISTORY


              The first amended complaint alleges plaintiffs A.W., then 13 years old, and
A.E., then 2 years old, were seriously burned in a fire ring located at the beach, controlled
and supervised by defendant. Plaintiffs plead there were hot coals hidden under sand in
the fire ring. According to the declaration of Joseph Milligan, defendant‟s beach
superintendant, filed in support of defendant‟s motion for summary judgment, the
concrete fire rings at the beach, which are about 60 inches wide, contain four-and-a-half
inches tall red lettering on the outside, stating “Caution Hot Ashes” (capitalization
omitted). In her deposition, Williams, the mother of A.W., who was with her at the
beach, testified she did not see the warnings on the fire pit in question because sand was
pushed up around the edges of the ring. She also stated she saw no warnings on any of
the approximately two dozen pits in the vicinity.



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              After spending several hours at the beach, Williams, who had her back to
the fire ring, heard A.E. scream and saw him inside the ring. She then saw A.W. jump
into the ring and then jump out, screaming that her foot was burned. Williams and
another person pulled A.E. from the pit. The minors were burned by hot coals remaining
from a prior fire; sand had covered the coals.
              Plaintiffs filed claims with defendant, stating the fire pit was a dangerous
condition without any warning. They further stated the fire ring “was almost totally
submerged in the sand so as to create a hidden danger and dangerous condition so as to
allow a 2-year old to get into . . . [it]. The „fire ring‟ (capitalization omitted) was filled
with sand and did not appear to be hot.” When the claims were denied, plaintiffs filed a
complaint based on causes of action for premises liability and dangerous condition of
public property. After the court sustained defendant‟s demurrers to the premises liability
causes of action in the original and first amended complaint with leave to amend,
plaintiffs dismissed the premises liability count1 and the only remaining cause of action
alleged a dangerous condition of public property.
              During discovery defendant produced approximately 20 reports of prior
accidents involving fire rings at the beach over the last 10 years. In motion in limine No.
2, defendant sought to have the reports excluded on the grounds they were hearsay and
the underlying incidents were not similar enough so as to put defendant on notice of a
dangerous condition. It also argued they were more prejudicial than probative under
Evidence Code section 352.
              The court held an extensive hearing on the motion. In opposing the motion,
plaintiffs‟ counsel began going through each of the 20 or so incident reports, pointing out
why they should be admitted. With each, the court noted it was not the same or similar
because there was a warning visible and there was no sand covering the ashes. The court

       1 Both parties agree the cause of action was dismissed despite the absence of
anything in the record.

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contrasted these incidents with the one at issue, noting the language on the claim forms
attached to the first amended complaint stated the fire pit was filled with sand, making
the dangerous condition unseen, and the warning was obscured.
                 The court also inquired as to whether plaintiffs had deposed or interviewed
the victims of the prior incidents or the officers who had taken the reports. When counsel
answered he had not, the court commented that plaintiffs had no first-hand knowledge of
the incidents.
                 The court then directed counsel to review all the reports and discuss only
those where the incidents were the same or similar. After a recess, plaintiffs identified
six reports. After reviewing each of the six, with argument by both lawyers, the court
granted the motion, finding the incidents were not the same or similar and there was
inadequate foundation for them based on failure to take statements or depose the victims
or the officers who took the reports.
                 Plaintiffs then made an offer of proof in the form of an opening statement,
that included mention of the reports, had they been allowed. Defendant made a motion
for nonsuit. During a colloquy before argument on the motion, plaintiffs stated that,
based on the court‟s grant of motion in limine No. 2, they would be unable to prove
notice of the dangerous condition, an essential element of their case. After the court
denied the nonsuit, plaintiffs stipulated to a nonsuit based on the same ground, inability to
prove notice. Defendant joined the stipulation, which the court granted. Judgment was
entered for defendants.


                                         DISCUSSION


1. Similarity of Prior Incidents
                 To prevail on a cause of action for damages for a dangerous condition on
public property, a plaintiff must prove the existence of the dangerous condition that

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proximately caused the injury, that the risk of that type of injury was reasonably
foreseeable, and that the public agency had either actual or constructive notice of the
condition sufficiently ahead of time that it could have taken corrective measures. (Gov.
Code, § 835; Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68.)
Plaintiff sought to rely on the prior incident reports to prove the element of notice.
              “The admissibility of evidence of prior accidents is confined to the trial
court‟s sound discretion. [Citation.]” (Cordova v. City of Los Angeles (2012) 212
Cal.App.4th 243, 254.) But “[b]efore evidence of previous injuries may be admitted on
the issue of whether or not the condition as it existed was in fact a dangerous one, it must
first be shown that the conditions under which the alleged previous accidents occurred
were the same or substantially similar to the one in question. [Citations.] The strictness
of this requirement of similarity of conditions is „much relaxed,‟ however, when the
purpose of the offered evidence is to show notice, „since all that is required here is that
the previous injury should be such as to attract the defendant‟s attention to the dangerous
situation which resulted in the litigated accident.‟ [Citations.]” (Laird v. T. W. Mather,
Inc. (1958) 51 Cal.2d 210, 220; see also Genrich v. State of California (1988) 202
Cal.App.3d 221, 228.)
              In disallowing admission of the incident reports for any purpose, the trial
court emphasized the necessity that the incidents be the same or substantially similar to
the one at issue here. Based on the comments and discussion at the hearing on the
motion, the court did not consider the “relaxed” standard used for the purpose of proving
notice, i.e., that the prior injuries “„should be such as to attract the defendant‟s attention
to the dangerous situation.‟” (Laird v. T. W. Mather, Inc., supra, 51 Cal.2d at p. 220.) A
minimum of nine times, the court remarked that the incidents were not the same or
substantially similar. In one of its comments it stated, “show me one of these that is
covered with sand where somebody stepped into it, not knowing that there was hot ashes



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because is was covered with sand.” In ruling on the motion the judge stated, “I don‟t find
that anything that you have called to the court‟s attention were the same or similar.”
              In so doing the court relied in part on Sambrano v. City of San Diego
(2001) 94 Cal.App.4th 225. This case underpins defendant‟s argument here as well. In
that case a two year old at the beach walked into a fire pit that contained hot coals and
burned herself. In opposing a motion for summary judgment, the plaintiffs sought to
introduce a report of a prior incident where a child who was dragging a boogie board had
tripped and fallen into a fire ring. The court excluded the report, ruling it was not the
same or substantially similar. And the appellate court affirmed. (Id. at p. 244.)
              But Sambrano can be distinguished. In Sambrano the plaintiff proffered
only one prior incident primarily to prove a dangerous condition. (Sambrano v. City of
San Diego, supra, 94 Cal.App.4th at pp. 233-235, 238), and the court ruled it did not
satisfy the same or substantially similar rule. (Id. at p. 238.) As far as using it to show
notice, the court reiterated the relaxed notice standard. (Id. at p. 237.) Ultimately the
court ruled the plaintiff had not shown the defendant was on notice of the alleged
dangerous condition (id. at p. 243) but stated “evidence of truly similar accidents could
have created triable issues to defeat summary judgment” (ibid.).
              While the trial court here thoroughly discussed the incident reports and
gave plaintiffs every opportunity to present evidence in defense against the motion in
limine in evaluating the reports the court did not use the correct standard. As shown by
its comments detailed above it required the prior incidents be essentially identical to the
one in question, a much stricter standard than that used to evaluate notice. “„“[T]he
scope of discretion always resides in the particular law being applied, i.e., in the „legal
principles governing the subject of [the] action . . . .‟ Action that transgresses the
confines of the applicable principles of law is outside the scope of discretion . . . .”‟”
(Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833; see Fasuyi v. Permatex,



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Inc. (2008) 167 Cal.App.4th 681, 695 [discretion must be “„“„guided and controlled in its
exercised by fixed legal principles‟”‟”].)
              We do not know what the court‟s ruling on motion in limine No. 2 would
have been had it relied on the the more relaxed standard used in connection with whether
the incidents gave notice to defendant. Therefore, we will remand the matter to the trial
court for another hearing on the use of the reports. In that hearing the court should
examine the reports in light of the standard applicable to the notice issue.
              Defendant disputes plaintiffs‟ claim they wish to use the incident reports
for purposes of notice only, pointing out that in their trial brief they sought to have them
admitted for purposes of showing the existence of a dangerous condition. But that is not
plaintiffs‟ argument here. In their briefs, plaintiffs assert only that they seek to have the
reports introduced for the purpose of showing notice.2 If in fact they seek to introduce
the reports to show a dangerous condition, they have not made such an argument and so it
is waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
              Defendant also contends the reports are not admissible because they are
hearsay. But their relevance on the notice issue is not dependent upon their truth.
“Documents not offered for the truth of the matter asserted are, by definition, not
hearsay.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316.) So this is not a proper
basis for exclusion.
              Likewise, defendant‟s very brief, one paragraph argument the reports
should be excluded under Evidence Code section 352 is not well taken. Again, defendant



      2  Plaintiffs argue in their reply brief, in opposition to defendant‟s claim the reports
are hearsay, that if the documents were hearsay and they wanted to use them, the reports
qualified for admission as business records under Evidence Code sections 1271 and 1272.
We decline to address this argument raised for the first time in the reply brief. (Mansur
v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388.)



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asserts that it would be more prejudicial than probative to admit the documents to show a
dangerous condition. But that is not the issue before us.


2. Expert Testimony
              Defendant also made a motion in limine to exclude the testimony of
defendant‟s expert witness, Brad Avrit. It argued that because the incident reports could
not be used to show notice, Avrit was not needed to testify to anything else. The court
determined Avrit should be voir dired before it decided the motion, and this was done
before the jury was selected. Avrit testified defendant had sufficient notice of the cause
of the injuries based on “[p]rior lawsuits and prior incidents.” The court ruled Avrit
could testify, but he could not mention or use “in any way, shape or form” the prior
incident reports during his testimony because the incidents were not the same or similar.
Plaintiffs assert this was error and argue Avrit should be able to testify to his reliance on
the incident reports to show notice.
               Under Evidence Code section 801, subdivision (b) an expert may rely on
inadmissible evidence so long as it “is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his [or her] testimony
relates . . . .” Evidence Code section 802 permits him to testify to “the reasons for his [or
her] opinion and the matter . . . upon which it is based . . . .” “However, the witness „may
not testify as to the details of such matters if they are otherwise inadmissible.
[Citations.]‟” (Genrich v. State of California, supra, 202 Cal.App.3d at p. 229, italics
added.)
              As noted in Genrich, this qualification of Evidence Code section 802 does
not prohibit Avrit from testifying about his reliance on the reports. In reaching that
conclusion, Genrich relied on West v. Johnson & Johnson Products, Inc. (1985) 174
Cal.App.3d 831, where an expert was permitted to testify about consumer complaints the
defendant had received. Even though the complaints themselves were thus not admitted

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because they were hearsay, the expert was allowed not only to describe the complaints,
but also to read portions of the reports. The court told the jury the testimony should be
considered only to decide whether the defendant had notice. (Genrich v. State of
California, supra, 202 Cal.App.3d at p. 229.) That rationale applies here, where plaintiff
seeks to have Avrit use the reports as the basis for testifying about notice.


                                       DISPOSITION


              The judgment is reversed. The matter is remanded for the trial court to
hold a hearing, using the relaxed standard set out in this opinion, on the admission of any
of the prior incident reports for purposes of showing defendant had notice of the alleged
dangerous condition. When plaintiffs‟ expert testifies, he or she shall be entitled to rely
on the prior incident reports in a manner consistent with this opinion. Plaintiffs are
entitled to costs on appeal.




                                                  THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.




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