Brown v. 1027 Oliver Road Associates CA1/2

Filed 10/28/21 Brown v. 1027 Oliver Road Associates CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-

cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-

dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ELOUISE BROWN,

Plaintiff and Appellant,

A152598

v.

1027 OLIVER ROAD ASSOCIATES, (Solano County

Super. Ct. No. FCS045396)

Defendant and Respondent.

This premises liability lawsuit arises from injuries appellant Elouise

Brown sustained when she tripped on the handicapped ramp outside of a

Chuck E. Cheese restaurant owned by respondent, 1027 Oliver Road

Associates, dba Chuck E. Cheese’s 11274 Beebalm Circle, Braden, FL 34202

(Chuck E. Cheese’s). The trial court granted summary judgment against

Brown, and she now appeals. Construing her notice of appeal as having been

taken from the judgment entered after the summary judgment ruling, we

affirm.1

Brown filed a notice of appeal from the trial court’s “judgment”

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supposedly entered on July 25, 2017, after an order granting a summary

judgment motion. No such judgment is in the record. The record contains an

unsigned minute order entered on July 25, 2017, granting summary

judgment for the defendant, which directs the plaintiff to prepare an order

after the hearing, and a written “Order After Hearing on Motion for

Summary Judgment” entered two months later on September 28, 2017, which

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The appellate record is sparse. It contains only the trial court’s

summary judgment ruling but not the complaint or the summary judgment

motion itself, nor any of the papers and evidence filed in support of the

motion. Moreover, according to the trial court’s ruling, “there was no

opposition to the [summary judgment] [m]otion.”

The court ruled as follows:

“Plaintiff has not served or filed a separate statement disputing those

material facts contended by Defendant to be undisputed, which alone justifies

granting the motion. [Citation.] Moreover, Defendant has presented

evidence sufficient to meet its burden of showing that one or more elements

of Plaintiff’s premises liability claim cannot be established. [Citations.] A

claim of premises liability has the same essential elements as a claim for

general negligence: 1) a duty owed by the defendant to the plaintiff, 2)

breach of that duty, and 3) the breach was a proximate or legal cause of the

plaintiff’s injuries. [Citation.] The property owner has a duty to exercise

ordinary care by making reasonable inspections of the property and eliminate

defective and dangerous conditions for which the owner has actual or

constructive notice. [Citation.] The owner must have notice of the dangerous

condition in sufficient time to correct it. [Citations.] Plaintiff was injured by

tripping on raised bumps on a yellow dome pad on the handicapped ramp

outside the Chuck E. Cheese restaurant owned by Defendant. The yellow

incorporates verbatim the operative text of the minute order. The register of

actions indicates that a judgment in defendant’s favor was subsequently

entered on October 27, 2017, reciting that “Plaintiff shall take nothing by her

complaint against the defendant” and awarding the defendant its costs of

suit. We construe plaintiff’s notice of appeal as having been taken from the

subsequently entered October 27, 2017 judgment. (See Cal. Rules of Court,

rule 8.104(d).)

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dome pad was in compliance with applicable Building Codes and there is no

basis to conclude that the pad was dangerous or defective in some manner at

the time of the accident such that it created an unreasonable risk of harm to

invitees. Even if the dome pad could be deemed dangerous or defective in

some manner, Defendant had no actual or constructive notice of the

dangerous condition prior to Plaintiff’s accident. Consequently, the burden of

establishing the existence of a triable issue of material fact shifted to

Plaintiff. [Citation.] By failing to produce any specific evidence disputing

Defendant’s material facts, Plaintiff has not carried her burden. [Citation.].”

On that basis, the court granted defendant’s summary judgment motion.

On appeal, Brown makes two arguments in her opening brief. First,

captioned under a heading entitled “The Standard of Review,” she contends:

“An attorney for Chucki E. Cheese’s content [sic] that they were in

compliance and up to code on everything but they had last checked these

things in the 1900; 1997 or somewhat. It goes without saying that this is a

long time and things have and should have been updated by then. I did

nothing wrong except walk in an ordinary manner on their ramp, with

ordinary shoes, no heels or straps or anything, when I tripped and fell on the

rather bumpy ramp whereas had there been handrails installed there I could

easily have broken my fall.”

Second, captioned under the heading “Elements of the Action,” she

contends: “I would like to introduce the theory of res ipsa loquitor which

translated means ‘let the thing speak for itself,’ and this determines whether

or not the defendant has actually committed an attempt to correct something

which in this case it does not appear as such. There are three tests that must

be met in order to establish res ipsa loquitor and a prima facie case: [¶] 1)

The event doesn’t normally occur unless someone had acted negligently; [¶] 2)

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The evidence rules out the possibility that the actions of the plaintiff or a

third party caused the injury. [¶] 3) The type of negligence in question falls

within the scope of the defendant’s duty to the Plaintiff. [¶] So by legal

definition as res ipsa is evidentiary and [sic] allows plaintiffs like myself a

chance at a rebuttable presumption of negligence through circumstantial

evidence.”

There are three reasons we must affirm the judgment entered against

Brown.

First, the appellate record is not sufficient for us to review the

correctness of the summary judgment ruling. “It is well settled . . . that a

party challenging a judgment has the burden of showing reversible error by

an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [declining to

consider the merits of cross-appeal where plaintiff failed to furnish an

adequate record].) “ ‘In the absence of a contrary showing in the record, all

presumptions in favor of the trial court’s action will be made by the appellate

court. “[I]f any matters could have been presented to the court below which

would have authorized the order complained of, it will be presumed that such

matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is

that if the record is inadequate for meaningful review, the appellant defaults

and the decision of the trial court should be affirmed.” ’ ” (Jameson v.

Desta (2018) 5 Cal.5th 594, 609.) Brown has failed to include in the record

the summary judgment motion and the evidence filed in support of it, and so

there is no way for us to review the court’s ruling. (See, e.g., Bains v.

Moores (2009) 172 Cal.App.4th 445, 478 [appellate court “must reject” claim

that demurrer was improperly sustained because record does not contain the

complaint and demurrer motion papers]; Hernandez v. California Hospital

Medical Center (2000) 78 Cal.App.4th 498, 502 [plaintiff failed to

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demonstrate error on appeal after trial court granted motion to strike

portions of complaint because record does not contain the court’s order or

underlying motion papers].)

Second, as the trial court noted, the summary judgment motion was not

opposed. (The record shows that only after the court ruled against her did

Brown file a belated opposition to the motion (on September 29, 2017).) This

has two consequences. One, because Brown failed to file any opposition or

evidence in opposition to the summary judgment motion, the trial court was

justified in concluding the motion was meritorious. (See Kelly v.

Liddicoat (1939) 35 Cal.App.2d 559, 565 [trial court correctly granted

unopposed summary judgment motion; defendants’ “failure to file affidavits

or otherwise oppose the [summary judgment] motion indicates that they were

utterly unable to make the showing of a substantial and meritorious defense

as required by [Code of Civil Procedure] section 437c” and “ ‘having failed to

do this the trial court justly concluded that there was no defense to the

action’ ”].) Alternatively, by not opposing the summary judgment motion,

Brown forfeited any claims of error in the trial court’s ruling. That is because

“ ‘[a] party who fails to raise an issue in the trial court has . . . waived the

right to do so on appeal.’ ” (Jensen v. Superior Court (2021) 64 Cal.App.5th

1003, 1013.)

Finally, we also must affirm the court’s ruling because Brown’s

appellate briefing does not set forth any cognizable claims of legal error. “ ‘In

order to demonstrate error, an appellant must supply the reviewing court

with some cogent argument supported by legal analysis and citation to the

record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019)

36 Cal.App.5th 142, 153.) “We may and do ‘disregard conclusory arguments

that are not supported by pertinent legal authority or fail to disclose the

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reasoning by which the appellant reached the conclusions he wants us to

adopt.’ ” (Ibid.) Here, Brown does not cite or discuss any legal authority in

support of her arguments and, because the appellate record is so bare, she

likewise does not cite or analyze any aspect of the record that was before the

court when it ruled. Her contentions are simply not cogent enough for us to

meaningfully consider them. They are not sufficient to carry her burden as

the appellant of demonstrating that the trial court erred.

As unfortunate as plaintiff’s injuries may be, she has not demonstrated

a basis to reverse the trial court’s summary judgment ruling.

DISPOSITION

The judgment is affirmed. Respondent is awarded its appellate costs.

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STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

Brown v. 1027 Oliver Road Assocs. (A152598)

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