Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIE029123, Eddie C. Sturgeon, Judge.
McDONALD, J.
Plaintiffs Demetrios Kyres and Genia Kyres, husband and wife (together Plaintiffs), appeal a judgment entered in their premises liability action following the trial court's order granting the motion for summary judgment filed by defendants Efrain Gomez, doing business as Los Alazanes Mexican Food, Edward E. Colson III, Edward E. Colson IV, as trustee of the Edward E. Colson III Trust, Edward E. Colson III Trust, Andrie F. Grimaud, and Dennis R. Sciotto (together Defendants). On appeal, Plaintiffs contend the trial court erred by granting Defendants' motion for summary judgment because, contrary to the court's conclusion, Defendants exercised control over the public parkway adjacent to Gomez's restaurant and therefore owed Demetrios Kyres (Kyres) a duty of care for the injury he sustained in that public parkway. We conclude that because Defendants did not exercise control over the adjacent public parkway by merely allowing light to emanate from their property onto that adjacent parkway, Defendants did not owe a duty of care to Plaintiffs and therefore the trial court properly granted Defendants' motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At about 1:30 a.m. on November 1, 2004, San Diego Police Officer Kyres was wearing his uniform and on duty in the Pacific Beach area to control problems by customers of local bars. Kyres and his partner were parked in the parking lot of Gomez's restaurant when a man informed them of a fight near the restaurant. Kyres approached the scene and saw Dave Williams, a known bouncer at a local bar, had a person restrained in the driveway/sidewalk area adjacent to the restaurant. Kyres then heard a man, later identified as Bryan Cox, shouting, "let him go." While Kyres was standing on the public parkway between the public sidewalk and the street, Cox entered the parkway from the street and walked toward Williams. Concerned Cox was going to intervene, Kyres approached Cox, told him to leave before he arrested him, and pushed him away. Cox backed away briefly, but returned and yelled for his friend to be released. Cox walked rapidly toward Kyres, who reacted by placing him in a carotid restraint. As Kyres tried to place Cox on the ground, he stepped back and his right foot became wedged between an exposed tree root in the parkway and the raised edge of the adjacent sidewalk. Kyres heard and felt a snap as his right leg broke.
Plaintiffs filed the instant premises liability action against Defendants, alleging they negligently owned, maintained, managed and operated the premises on which the incident occurred. Defendants filed a motion for summary judgment, asserting they were not negligent and did not owe Plaintiffs a duty of care because they did not own, possess or control the property on which the incident occurred. In their separate statement of undisputed material facts in support of their motion, Defendants stated the restaurant (i.e., Los Alazanes Mexican Food) was owned and operated by Gomez on property leased from its owners Edward E. Colson III, Dennis R. Sciotto, and Andrie F. Grimaud. They further stated Gomez did not exercise any possession of or control over the public sidewalk and parkway where the incident occurred. As evidentiary support, they cited the declaration of David F. Grimes, a licensed land surveyor, in which he stated he conducted a land survey and took photographs showing all of the subject sidewalk and parkway (and trees located in the parkway) were located within the public street area and outside the boundaries of Defendants' property.
Plaintiffs opposed Defendants' motion for summary judgment. In their separate statement of facts, Plaintiffs agreed with Defendants' separate statement of undisputed material facts, except for Defendants' assertion that Gomez did not exercise any possession of or control over the sidewalk and parkway where the incident occurred. Therefore, Plaintiffs conceded Defendants did not own the property on which Kyres was injured. In opposing Defendants' motion, Plaintiffs argued Defendants owed them a duty of care because Gomez exercised control over the adjacent sidewalk and parkway because the lights of his restaurant illuminated that area. In support of their argument, Plaintiffs cited Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 (Johnston) as involving apposite facts to this case. In reply, Defendants argued Johnston was factually inapposite and did not show they owed Plaintiffs a duty of care based on the undisputed facts in this case.
On September 4, 2007, the trial court issued a written order granting Defendants' motion for summary judgment, stating in part:
"The Court finds that [Defendants] did not owe a duty to the [P]laintiffs and are not liable to the [P]laintiffs as they did not own, possess or control the premises where the incident occurred. [Citations.] The Court also finds that [Defendants] did not create the alleged dangerous condition. [Citation.] The Court finds that the sidewalk accident doctrine applies to this case, that [Defendants] owed no duty to [P]laintiff[s] pertaining to the alleged dangerous condition of the public sidewalk and parkway, and that [Defendants] are not liable for the alleged defective condition of the adjacent public sidewalk and parkways. The Court distinguishes the case of [Johnston] in . . . that [Defendants] did not place any lights or signs in the parkway that directed patrons to use the parkway."
On September 4, the court entered judgment for Defendants. Plaintiffs timely filed a notice of appeal.
DISCUSSION
I
Premises Liability Generally
Civil Code section 1714, subdivision (a), provides: "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . ." (Italics added.) "[T]o prevail in a negligence action, plaintiffs must show that defendants owed them a legal duty, that defendants breached that duty, and that the breach proximately caused their injuries. [Citation.]" (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145.) Therefore, "[w]ithout a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member, no negligence is established. [Citation.] Whether a defendant owes a duty of care in a given situation is a question of law for the court to determine. [Citation.]" (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711; see also Wiener, at p. 1146.)
"A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citations.]" (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) In Alcaraz v. Vece (1997) 14 Cal.4th 1149, the court held a defendant property owner or possessor who does not own, but exercises control over, an adjacent strip of land has a duty to protect or warn other persons who enter that adjacent strip of land of a known hazard on it. (Alcaraz v. Vece, supra, 14 Cal.4th at pp. 1155-1157, 1170-1171.) However, "[s]tanding alone, simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property so as to give rise to a duty to protect or warn persons entering the property of known dangers." (Id. at p. 1170.) Therefore, a property owner or possessor does not owe a duty of care (i.e., duty to warn or prevent harm) to others merely because he or she performed "neighborly maintenance" of adjacent property on which an accident occurs. (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 201, 203-204.)
A motion for summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
Alcaraz further held that duty is imposed even if the property owner exercises control over only the adjacent strip of land, but not the hazard itself. (Alcaraz v. Vece, supra, 14 Cal.4th at pp. 1155-1156.)
II
Did Defendants Exercise "Control" Over Public Parkway?
Plaintiffs contend the trial court erred by concluding that because Johnston is factually inapposite to this case and the undisputed facts show Defendants did not exercise control over the public parkway, there is no triable issue of material fact that Defendants did not owe Plaintiffs a duty of care and therefore Defendants are entitled to judgment as a matter of law.
A
Johnston, supra, 28 Cal.2d 394 involved a unique set of facts in which a building owner leased part of its building to a tenant who operated a restaurant. (Id. at p. 396.) An exterior private walk was located on the northerly 10-foot strip of the building owner's property. (Ibid.) The private walk was used to enter the building's businesses, including the restaurant. (Id. at p. 397.) Three doors opened onto the private walk, including one door that led into a passageway used as a side entrance for the restaurant's customers. (Johnston, supra, 28 Cal.2d at p. 397.) Signs for the restaurant were maintained over that door either by the building owner or the restaurant tenant. (Ibid.) A service station and parking lot owned by an oil company was adjacent to, and just north of, the subject property. (Id. at p. 396.) Before the oil company acquired that adjacent property, the building owner graded the adjacent property to slope toward the private walk and customers of the building's tenants used the adjacent property as a parking lot. (Id. at p. 397.) After acquiring the adjacent property, the oil company constructed a concrete wall along the southern boundary of its property that abutted and ran the entire length of the private walk. (Ibid.) The wall's height varied from six inches to two feet above the walk. (Ibid.) On the adjacent property, there was a 10-foot wide, unpaved parkway located between the wall and an asphalt-paved parking lot, which was painted with lines for automobile parking spaces. (Ibid.) A three-foot wide concrete ramp led from the adjacent paved parking lot through the parkway to the private walk at a point directly opposite the door serving as the restaurant's side entrance. (Ibid.) The restaurant's tenant had a previous arrangement with the oil company for his customers to park their cars on its paved parking lot; the customers would then walk directly from the lot to the private walk to enter the restaurant. (Johnston, supra, 28 Cal.2d at p. 397.)
The restaurant also had three or more other entrances that consisted of passageways from adjoining streets through the building. (Johnston, supra, 28 Cal.2d at p. 397.)
Although at the time of the plaintiff's injuries that arrangement had ended, the building owner and the restaurant tenant knew the restaurant's customers nevertheless continued to park on the adjacent property and enter the building from that direction. (Johnston, supra, 28 Cal.2d at p. 397.)
At about 8:00 p.m. the night of the incident, the plaintiff in Johnston, a 65-year-old woman and her husband parked their car in the paved parking lot adjacent to the restaurant. (Johnston, supra, 28 Cal.2d at pp. 397-398.) Intending to have dinner at the restaurant, the plaintiff walked toward the restaurant through the dark, unlit parkway. (Id. at p. 398.) Stepping off the concrete wall (which she thought was only six to seven inches high) onto the private walk, the plaintiff fell as she misjudged the wall's actual 18-inch height at that point. (Ibid.)
The plaintiff filed an action against the building owner and restaurant tenant for damages from the injuries she suffered in her fall. (Johnston, supra, 28 Cal.2d at p. 396.) During trial, the trial court granted a nonsuit for the defendants. (Ibid.) On appeal, Johnston separately addressed the alleged negligence of the building owner and the restaurant tenant. (Id. at pp. 398-401.) For purposes of our case, we discuss only that part of Johnston's opinion that addresses the tenant's alleged negligence. Noting the accident occurred on property not possessed by the restaurant tenant pursuant to his lease, Johnston stated: "A tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control. [Citations.] Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition." (Johnston, supra, 28 Cal.2d at p. 401.) However, Johnston stated: "[I]f the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon." (Ibid.) In the circumstances in that case, Johnston concluded:
Because Johnston's discussion of the building owner's negligence focused on the owner's actual ownership of and control over the private walk on which the accident occurred, former principles of business invitees of a property owner's tenants, and other issues irrelevant to our case, we need not discuss that portion of Johnston we conclude is inapposite to this case. (Johnston, supra, 28 Cal.2d at pp. 398-401.)
"There is evidence . . . that the [restaurant] tenant . . . assumed some responsibility for, and exercised control over, the means of lighting the approaches to the side entrance to the . . . building. When the building was first constructed, a single light was placed on the outside wall immediately above the door opposite the ramp. [The tenant] installed a Neon sign, reading 'El Paseo,' a few feet above the single light and connected the sign and the light in such a manner that they operated on one switch. Thus the Neon sign, which was under the control of [the tenant], served not only as an invitation to use the entranceway to the restaurant, but also to illuminate the general area. This evidence would support a finding and conclusion that [the tenant] had a limited right of control over this portion of the premises and of the means of illuminating the entranceway, that he knew of the danger involved in using this approach at night, and that he negligently failed to warn plaintiff, a business invitee, of the dangerous condition." (Johnston, supra, 28 Cal.2d at p. 401.)
Accordingly, Johnston reversed the judgment for the restaurant tenant (as well as judgment for the building owner). (Id. at p. 402.)
B
Plaintiffs assert Defendants owed them a duty of care based on Defendants' alleged control over the public parkway, conceding Defendants did not own or possess it. Citing Johnston, Plaintiffs argue that because Defendants allowed the restaurant's lights to emanate onto the parkway, Defendants exercised control over the parkway and therefore owed them a duty of care.
We conclude the facts in Johnston are inapposite to those in this case. First, unlike in Johnston, the parkway on which the accident occurred is public, not private, property. As Defendants note, many cases have held the "sidewalk accident" doctrine applies to protect property owners and possessors from liability for injuries sustained by persons because of defects in adjacent public sidewalks and parkways even though they performed, or had a statutory duty to perform (e.g, per Sts. & Hy. Code, § 5610), routine maintenance on those sidewalks and parkways. (See, e.g., Alcaraz v. Vece, supra, 14 Cal.4th at pp. 1167, 1170; Contreras v. Anderson, supra, 59 Cal.App.4th at p. 200-201; Williams v. Foster (1989) 216 Cal.App.3d 510, 521-523; Jones v. Deeter (1984) 152 Cal.App.3d 798, 803-804 [owner of adjacent property was not liable to pedestrian who was injured by tripping on public sidewalk break caused by roots of tree in public parkway]; Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326-327.)
Second, unlike in Johnston, Defendants in this case did not have any express arrangement with the adjacent property owner (i.e., the City of San Diego) to allow the restaurant's customers to use the public parkway for accessing the restaurant. (See Rufo v. N.B.C. Nat. Broadcasting Co. (1959) 166 Cal.App.2d 714, 718-719 [distinguishing Johnston on that basis].)
Although it is not determinative, we note that neither Kyres nor Cox was using the public parkway to access the restaurant at the time of the incident.
Finally, and most importantly, unlike in Johnston, Defendants in this case did not place any lights within the area over the public parkway. Rather, based on our review of the photographs and other undisputed evidence in this case, the record shows the restaurant's lights that emanated onto the public parkway consisted primarily, if not entirely, of interior lights and lights mounted underneath the building's exterior awnings, which lights illuminated the restaurant's driveway area and beyond to the adjacent public sidewalk and parkway where Kyres was injured. Furthermore, those photographs and other undisputed evidence show the restaurant's lights were a significant distance (at least 10 feet away in our estimation) from the public parkway on which Kyres was injured. In contrast, in Johnston the tenant installed a neon sign on the exterior wall of the building (which presumably was not part of his leased premises) directly over the exterior door and private walk, illuminating that area and inviting customers to use that entranceway. (Johnston, supra, 28 Cal.2d at p. 401.) In this case, none of the restaurant's lights are directly over the public parkway, much less directed toward the parkway. Therefore, we conclude Johnston is factually inapposite and does not show Defendants owed Plaintiffs a duty of care to warn or prevent harm to Kyres regarding the alleged dangerous condition in the public parkway. Although the restaurant's lights "indirectly" emanated onto the adjacent public parkway, that circumstance is insufficient to support a conclusion that Defendants exercised control over the public parkway for purposes of imposing a duty of care on Defendants to persons who use the public parkway.
We use the term "indirectly" to mean not directly over or directed or pointed toward (rather than its strict scientific meaning, which presumably would inform us that light rays generally travel in a straight, or "direct," line).
Although Plaintiffs cite excerpts from the transcript of Gomez's deposition to show he knew that some of his customers would cross the public parkway to access his restaurant and he believed his customers had sufficient light from his restaurant to cross the public parkway, neither Gomez's knowledge of his customers' walking patterns nor his belief regarding the amount of light emanating onto the adjacent public parkway would support a conclusion that he exercised control over the public parkway. Furthermore, to the extent Plaintiffs rely on Alcaraz, that case is also factually inapposite. Alcaraz involved a water meter box located on a strip of public property between the sidewalk and the defendants' property line, which strip of property, together with the defendants' front property, were collectively maintained by the defendants as an undivided front lawn. (Alcaraz v. Vece, supra, 14 Cal.4th at pp. 1152-1154.) Also, in Alcaraz the defendants arguably exercised control over the strip of public property when, after the plaintiff's accident, they constructed a fence surrounding the entire lawn area (i.e., both their property and the strip of public property that included the meter box). (Id. at pp. 1166-1170.) Alcaraz does not require that we reach a contrary conclusion.
C
Finally, we conclude that consideration of the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) support our conclusion that Defendants did not owe Plaintiffs a duty of care in the circumstances of this case. In determining the questions of law regarding the existence and scope of a duty under tort law in a particular case, courts consider the seven-factor Rowland test. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5; Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1145; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815-817; Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 894-897.) Before judicially establishing an exception to Civil Code section 1714's general principle for determining tort liability, as discussed above, courts consider and weigh the Rowland factors. (Merrill, supra, at p. 477.) Rowland stated:
"A departure from this fundamental principle [i.e., Civil Code section 1714's general principle of tort liability] involves the balancing of a number of considerations; the major ones are [1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved. [Citations.]" (Rowland, supra, 69 Cal.2d at pp. 112-113.)
In determining whether a legal duty existed (in contrast to the scope of the duty) in the circumstances of this case, we briefly consider each of Rowland's seven factors. First, and most importantly, is the foreseeability of harm to Plaintiffs. Implicit within that factor are the nature and extent of Defendants' acts or omissions and to what extent Defendants could have foreseen that their acts or omissions would cause harm to Plaintiffs. The only conduct by Defendants on which Plaintiffs allege Defendants owed them a duty was the emanation of the restaurant's lights onto the adjacent public parkway. Therefore, we consider whether that type of conduct by Defendants is "sufficiently likely" to result in the kind of harm suffered by Plaintiffs so that liability should be imposed for that conduct. (Martinez v. Bank of America, supra, 82 Cal.App.4th at p. 895.) We conclude that allowing light from private property to emanate onto public parkways is not sufficiently likely to cause the type of harm suffered by Plaintiffs. Kyres injured his right leg when, in the dark night, it became wedged between the raised edge of the public sidewalk and an exposed tree root in the public parkway. The light emanating from Defendants' restaurant was not likely to have caused Kyres's injury. On the contrary, if anything, that light was more likely to have helped prevent the type of injury Kyres suffered. Therefore, because it was not foreseeable that light emanating onto a public parkway could cause the type of injury Kyres suffered, we conclude the first factor of foreseeability does not support the imposition of a legal duty on Defendants in this case.
The second factor is the degree of certainty that Kyres suffered injury. Kyres clearly suffered an injury when he broke his right leg, thereby weighing (albeit minimally) in favor of imposition of a legal duty on Defendants.
The third factor is the closeness of the connection between Defendants' conduct and the injury Kyres suffered. That factor is similar to the first factor of foreseeability, but it is more fact-specific regarding the causation or other connection in this case. As we concluded regarding foreseeability, the light emanating from Defendants' restaurant was not likely to have caused Kyres's injury and, if anything, was more likely to have helped prevent the type of injury Kyres suffered. Accordingly, there is little, if any, connection between Defendants' conduct and the injury Kyres suffered. Therefore, we conclude the third factor does not support the imposition of a legal duty on Defendants in this case.
The fourth factor is the moral blame attached to Defendants' conduct. Defendants' conduct consisted of allowing light from their restaurant building to emanate onto the public parkway at nighttime. Rather than attributing moral blame to Defendants for that conduct, the law should, instead, attribute moral praise. The likely effect of Defendants' conduct was not to increase, but to decrease, the risk of harm suffered by Kyres in this case. We conclude the fourth factor does not support the imposition of a legal duty on Defendants in this case.
The fifth factor is the policy of preventing future harm. Were we to conclude Defendants owed Plaintiffs a duty of care based solely on the amount of light emanating from the restaurant's building onto the public parkway, it presumably would have the effect of discouraging business owners (and homeowners) from providing lighting to illuminate not only their own property but also adjacent areas, which lighting would enhance the safety of pedestrians at nighttime. Imposition of liability in these circumstances would naturally cause many property owners or possessors to shield or dim the lights on their properties so that light does not emanate onto adjacent public sidewalks and parkways, which would have a negative effect on the safety of nighttime pedestrians. The fifth factor does not support imposition of a legal duty on Defendants in this case.
The sixth factor is the extent of the burden on Defendants and the consequences to the community of imposing a duty to exercise care with resulting liability for breach. Were liability to be imposed on Defendants for their conduct in allowing light to emanate from their restaurant building onto a public parkway, Defendants and other property owners and possessors would be discouraged from providing that indirect lighting and would, instead, be encouraged to shield or dim their lighting. Furthermore, as Defendants note, were a duty of care to be imposed in these circumstances, it would lead to a plethora of litigation to determine what amount of indirect lighting onto public sidewalks and parkways is sufficient for imposition of a duty of care. The result of that litigation likely would be a seemingly arbitrary limitation on the amount of indirect lighting permitted before a duty of care is imposed. The sixth factor does not support the imposition of a legal duty on Defendants in this case.
Finally, the seventh factor is the availability, cost, and prevalence of insurance for the risk involved. The parties do not present any evidence regarding, and we are unaware of, any commercial insurance that specifically insures for liability due to light emanating from private property onto public parkways. To the extent general commercial (or homeowners) property liability insurance may cover that liability at this time, it is unlikely insurers have knowingly accounted and actuarially provided for such potential liability. Accordingly, were a duty to be imposed in these circumstances, insurers likely would create exceptions to coverage for that liability or raise their premiums to account for that covered risk. The seventh factor does not tend to support the imposition of a legal duty on Defendants in the circumstances of this case.
Considering and balancing all seven Rowland factors, we conclude those factors weigh against the imposition of a legal duty on Defendants in the circumstances of this case. The Rowland factors support our conclusion that Defendants did not owe Plaintiffs a duty of care. Furthermore, we note that lighting, such as in this case, is analogous to the routine or neighborly maintenance performed by adjacent private property owners or possessors on public sidewalks and parkways, which maintenance does not result in a duty of care under the "sidewalk accident" doctrine discussed above. The "neighborly" indirect lighting provided in this case should likewise not result in a duty of care owed by Defendants to Plaintiffs.
D
Because Defendants did not exercise control over the public parkway and therefore did not owe Plaintiffs a duty of care in the circumstances of this case, Defendants carried their burden to show there is no triable issue on an essential element of Plaintiffs' cause of action against them and they therefore are entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at pp. 1145-1146; Hamilton v. Gage Bowl, Inc., supra, 6 Cal.App.4th at p. 1711; Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 134.) The trial court properly granted Defendants' motion for summary judgment.
III
Plaintiffs' Motion to Augment Record and Defendants' Motion for Sanctions
On March 20, 2008, Plaintiffs filed a motion to augment the record on appeal with two original photographs depicting the restaurant building's nighttime lighting. However, those photographs were not received as evidence in the trial court. In fact, the court denied Plaintiffs' request to view those photographs. The court stated it had reviewed photocopies of those photographs. The record on appeal contains photocopies of the subject photographs the trial court presumably reviewed. Because the original photographs were not part of the record considered by the trial court in granting Defendants' motion for summary judgment, we deny Plaintiffs' request to augment the record on appeal with those original photographs. (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1209 ["[A]ugmentation may be used only to add evidence that was mistakenly omitted when the appellate record was prepared . . . ."]; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Augmentation does not function to supplement the record with materials not before the trial court."]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 ["As a general rule, documents not before the trial court cannot be included as a part of the record on appeal."].)
On April 1, 2008, Defendants filed a motion requesting that we impose sanctions on Plaintiffs and their counsel in the amount of $1,637.50 for attorney fees incurred by Defendants in opposing Plaintiffs' motion to augment the record. Defendants argue Plaintiffs' motion to augment was frivolous. Considering the circumstances of this case, we exercise our discretion to deny Defendants' motion for sanctions. (Cal. Rules of Court, rule 8.276(a)(3); Dana Commercial Credit Corp. v. Ferns & Ferns (2001) 90 Cal.App.4th 142, 146-147; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.