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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


KNAR ALEKSANIAN,

     Plaintiff and Appellant,                                          G050088

         v.                                                            (Super. Ct. No. LC098651)

COUNTY OF LOS ANGELES,                                                 OPINION

     Defendant and Appellant.



                   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 Julia Sklar for Plaintiff and Appellant.
                   Law Offices of Marc J. Wodin and Marc J. Wodin for Defendant and
Appellant.
                                          *                  *                  *
              Plaintiff and appellant Knar Aleksanian appeals from the summary
judgment entered in favor of defendant and appellant County of Los Angeles (County).
Aleksanian sued the County 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 dangerous condition of public property, arguing it
could not be liable because it neither owned nor controlled the lobby floor where
Aleksanian fell. According to the County, it deeded to the state 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 the 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 responsibility for the maintenance 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 County had sufficient control to
make it liable if Aleksanian establishes the other elements of her claim. Accordingly, the
agreement between the County and the state concerning the joint use of the courthouse
does not satisfy the County’s initial burden on its summary judgment motion.
              The County also appeals from a postjudment order denying the County’s
motion for defense costs. Based on our conclusion 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.




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                                               I

                             FACTS AND PROCEDURAL HISTORY

              In December 2011, Aleksanian visited the Los Angeles Superior Court,
Van Nuys Courthouse East (Van Nuys Courthouse) to help her son pay a traffic ticket.
As she approached the elevators 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, acting through the Judicial Council of California,
Administrative Office of the Courts (Judicial Council) owned the Van Nuys Courthouse.
              The County previously owned the Van Nuys Courthouse. Between 1988
and 2002, the Legislature passed various trial court funding and facilities acts authorizing
all counties to transfer their trial court facilities 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 into agreements establishing the terms and conditions for the
county to transfer ownership and responsibility for its trial court facilities. (See, e.g.,
§§ 70321, 70312.) For trial court buildings that a county continued to use jointly with the
Judicial Council, the legislation required the county 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 County of Los Angeles for the Transfer of
Responsibility for and Title to the Van Nuys 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.


                                               3
and Through the Administrative Office of the Courts, and the County of Los Angeles for
the Van Nuys Courthouse East” (Joint Occupancy Agreement). Under these Agreements,
the County deeded title to the Van Nuys Courthouse to the Judicial Council in
December 2009. The Joint Occupancy Agreement divided the Van Nuys Courthouse into
three areas—the “Court Exclusive-Use Area,” the “County Exclusive-Use Area,” and the
“Common Area”—and also divided responsibility for each of these areas between the
Judicial Council and the County as described below.
              Aleksanian sued the County to recover for her injuries. 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, arguing Aleksanian could not establish an
essential element of her claim because (1) the County neither owned nor controlled the
property where Aleksanian fell and (2) the crack was too small to constitute a dangerous
condition as a matter of law. The trial court granted the motion on the first ground
without ruling on the second. The court concluded the County met its initial burden by
showing it transferred ownership of the Van Nuys Courthouse to the Judicial Council two
years before Aleksanian fell, and the Transfer Agreement and Joint Occupancy
Agreement assigned responsibility to the State for maintaining the area where Aleksanian
fell. According to the trial court, Aleksanian failed to meet her burden to establish a
triable issue because she did not dispute the State owned the Van Nuys Courthouse and
she presented no evidence showing the County actively maintained the area where she
fell despite the terms of the Transfer Agreement 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 based on her failure to comply
with claim presentation requirements. The County nonetheless filed an indemnity
cross-complaint against these defendants.


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              Based on the ruling granting its summary judgment motion, the County
moved for an award of defense costs on the ground Aleksanian did not bring this action
“with reasonable cause and in the good faith belief that there was a justifiable controversy
under the facts and law which warranted the filing 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 postjudgment order denying its motion for
defense costs.

                                              II

                                        DISCUSSION

A.     Governing Summary Judgment Principles
              “A defendant moving for summary judgment bears the initial burden to
show the plaintiff’s action has no merit. [Citation.] The defendant 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 evidence sufficient to show he or she is entitled to judgment
as a matter of law. [Citation.] ‘“If a plaintiff pleads several theories, the defendant has
the burden of demonstrating there are no material facts requiring trial on any of them.”’
[Citation.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.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 evidence until the defendant meets his or her initial burden.
(Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940 [“‘Where the evidence presented by



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defendant does not support judgment in his 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 liable for an injury only as provided by
statute. (§ 815.) “In other words, direct tort liability of public entities 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 Code section 1714.” (Eastburn v. Regional
Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)
              Section 835 makes a public entity liable 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 either 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 property if the plaintiff establishes that [(1)] the property
was in a dangerous condition at the time of the injury, [(2)] that 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 his employment created the dangerous condition; or [¶]
(b) The 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.”


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Com. v. Superior Court (2010) 181 Cal.App.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 because it had no authority to
correct dangerous condition itself].)
              Here, the County’s motion turns on whether the County 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 fall. To meet its initial summary judgment
burden on the control issue, the County points to the two sections of the Joint Occupancy
Agreement that assign responsibility for maintaining and repairing the “Common Area.”
              Section 3.2.2.1 states, “During the Term, [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 undertake 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 [Agreement], commencing on the Responsibility 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 the Managing Party on behalf of the [Judicial]
Council. During the Common Area Delegation Period, the County shall be entitled to all
rights provided to, and shall be obligated to perform all duties required of, the Managing
Party in this [Agreement] . . . .” The parties 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 forth in Attachment 3 to the Joint Occupancy
Agreement, the term “Common Area” includes the lobby where Aleksanian fell, and
Aleksanian fell during the “Common Area Delegation Period.”

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              The County contends these two sections show it lacked control over the
lobby floor where Aleksanian fell because these sections place responsibility for
maintaining and repairing the floor on the Judicial Council. According to the County,
these two sections do not require it to repair and maintain all portions of the Common
Area, but rather only those portions expressly 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 County’s interpretation of these two sections
because the plain language of these provisions assigns responsibility for the maintenance
and repair of the entire Common Area to the County. As explained above, a party’s
ability to repair a dangerous condition establishes 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 interpretation is to give effect to the parties’
mutual intent at the time of contracting. [Citations.] When a contract is reduced to
writing, the parties’ intention is determined 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 Newport 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 not 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 language 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 Judicial Council’s rights and duties to maintain

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and repair the Common Area to the County. Nothing in section 3.2.2.2 limits that
delegation to only certain portions of the Common Area or otherwise restricts the
County’s delegated responsibility to maintain and repair the entire Common Area. The
second sentence in section 3.2.2.1 acknowledges this delegation and requires the County
to maintain and repair the Common Area “in accordance with the Service Standards.”
Contrary to the County’s contention, neither this sentence nor the Service Standards
attached to the Joint Occupancy Agreement purports to limit the County’s responsibility
to maintain and repair the Common Area to only those portions identified in the Service
Standards.
              The Service Standards merely establish 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 repaired or replaced as needed, and “plumbing
fixtures (e.g., toilets, sinks, urinals, faucets)” simply must be repaired or replaced as
needed. The Service Standards also provide how the County must respond to requests for
service by the Judicial Council. For example, the County must respond within two hours
if the request involves “risk or injury to persons 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 occupants’ operations (e.g., air conditioning).”
              Accordingly, we conclude these Joint Occupancy Agreement provisions do
not satisfy the County’s initial burden to show Aleksanian could not establish the
essential element of control, and therefore the trial court erred in granting the motion. In
reversing the judgment, we do not address the second ground on which the County
sought summary judgment—the crack was too small to constitute a dangerous condition
as a matter of law. The trial court did not reach 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,

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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 Civil 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 reasonable cause and a good faith belief there was a
justifiable controversy. The section also states 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
                                        DISPOSITION

              The judgment is reversed and the postjudgment order is moot. Aleksanian
shall recover her costs on appeal.



                                                   ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.


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