Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. GIE033528 Jan I. Goldsmith.
NARES, J.
In this personal injury action against P.W. Stephens, Inc. (Stephens), J. Robert Schumsky, and others, Jose Martinez alleged that Schumsky, who was a guest of Stephens at a golf tournament that Stephens co-sponsored, negligently drove a golf cart over ropes attached to a stake that was propelled into Martinez's leg when the ropes became entangled in the wheels. In his complaint, Martinez alleged causes of action for common law negligence (based on a theory of premises liability) and battery. However, Martinez later claimed in opposition to Stephens's summary judgment motion that Stephens was vicariously liable because a Stephens employee negligently entrusted the golf cart to Schumsky after both the employee and Schumsky drank alcoholic beverages. Martinez, however, did not seek leave to amend his complaint to allege a negligent entrustment claim against Stephens.
Although the complaint referred to Stephens as "P.W. Stevens, Inc.," both parties and the court thereafter referred to Stephens as "P.W. Stephens, Inc."
Martinez's complaint named as defendants: Schumsky, Carlton Oaks Golf Course, Carlton Oaks Country Club, San Diego Insurance Adjusters Association, and Stephens. Only Martinez and Stephens are parties to this appeal.
The court granted summary judgment in favor of Stephens, finding (1) there was no evidence Stephens controlled the country club premises where the injury occurred; (2) Stephens could not be held vicariously liable on Martinez's negligent entrustment theory because Stephens did not own the golf cart; (3) under Civil Code section 1714, Stephens could not be held liable for providing alcoholic beverages to Schumsky; and (4) Stephens could not be held vicariously liable for battery because there was no evidence that Schumsky acted as Stephens's agent.
All further statutory references are to the Civil Code unless otherwise specified.
As Martinez does not challenge the court's rulings on his premises liability and battery claims, we shall not discuss them further.
Martinez appeals, contending the court erred in granting summary judgment to Stephens because (1) the court "improperly ruled that [he] could not proceed on a theory of negligent entrustment because [Stephens] did not own the cart"; and (2) the court erred in relying upon section 1714 as a bar to pleading negligent entrustment because it confused the supply of alcohol with the provision of keys to a vehicle. In response, Stephens argues that Martinez's appeal is untimely.
We conclude that Martinez's appeal is timely. We also conclude that the court did not err in granting summary judgment in favor of Stephens on Martinez's negligent entrustment theory because he did not allege a negligent entrustment claim in his complaint, the factual allegations set forth in the complaint do not support a negligent entrustment claim, and he did not seek leave to amend his complaint to allege such a claim. Accordingly, we affirm the judgment.
As this is an appeal from a grant of summary judgment, we recite the facts in the light most favorable to Martinez. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [on an appeal from a grant of summary judgment, "we must view the evidence in a light favorable to plaintiff as the losing party"].)
On May 23, 2003, upon an invitation by a Stephens employee, Martinez attended a golf tournament at the Carlton Oaks Country Club (Carlton Oaks) located in San Diego County. As the sponsor of the first hole, Stephens set up a Hawaiian-themed "grass shack" near the first tee box. Stephens brought rum, whiskey and other alcoholic beverages to the event and used golf carts to deliver alcoholic drinks to the other tee booths.
As part of Stephens's sponsorship, Carlton Oaks provided Stephens with four golf carts, including the one that James Brown, a Stephens employee, shared with Schumsky, who was a guest of Stephens. Stephens paid for Schumsky's golfing fee and use of the golf cart.
Although both Brown and Schumsky had the right to drive the golf cart, Brown drove it for the first nine holes with Schumsky as his passenger. As Brown and Schumsky traveled from hole to hole, Brown witnessed Schumsky drink from five to seven alcoholic beverages and eat a rum-soaked cherry.
After playing nine holes, Schumsky and Brown returned to Stephens's booth at the first hole where they met with female bartenders who needed to use the restroom. Brown volunteered Schumsky to drive each of the bartenders to the bathroom. Schumsky asked Brown for the key to the golf cart, and Brown gave it to him. Schumsky then drove two of the bartenders to the clubhouse and back. Each time he did this, he drove up a grassy slope over a safety rope that controlled the golf cart traffic. The rope was either limp or on the ground.
Martinez was standing about 40 feet from Stephens's booth. Schumsky was returning from his third trip to the clubhouse when the wheels of the golf cart caught and pulled at the rope, uprooting a stake and propelling it into Martinez's leg.
Carlton Oaks had several marshals on the golf course during the tournament. It is undisputed that Carlton Oaks's maintenance crew was responsible for setting up the safety ropes, and it was the marshals' duty to ensure that the ropes and stakes were in place.
PROCEDURAL BACKGROUND
A. Martinez's Complaint
Martinez brought a personal injury action against Stephens, Schumsky, and Carlton Oaks (among others), asserting causes of action for negligence (based on a theory of premises liability) and battery. Pertinent to this appeal, Martinez alleged in paragraph No. 14 that Stephens "sponsored, directed, and controlled" the first tee box during the golf event at Carlton Oaks. With respect to the accident, Martinez also alleged in that paragraph that:
"While [he] was at the first tee box,... [Schumsky] drank alcoholic beverages so as to impair his normal faculties and then proceeded to drive a [Carlton Oaks] golf cart. [Schumsky] negligently drove the golf cart over a security rope behind the first tee area and proceeded to keep driving in such an irresponsible manner that two stakes[] attached to the rope... were pulled from the ground. [Schumsky], while in an impaired condition due to alcoholic consumption, drove recklessly and pulled the ropes and stakes along with the cart as [Schumsky] drove. As a result, the ropes and stakes were pulled across [Martinez's] legs and severely injured [his] legs[,] causing permanent injury and disability."
In his negligence count, Martinez alleged in pertinent part in paragraph No. 15 that Carlton Oaks negligently owned, operated, and maintained "the premises where the event occurred that led to [his] injuries." He also alleged in that paragraph:
"[The] event held on May 23, 2003, was also negligently controlled and maintained by... [Stephens], who failed to ensure proper safety measures for patrons of the event. In addition, [Schumsky] was negligently intoxicated at the event and negligently controlled the golf cart[,] which caused [Martinez] to suffer serious physical and psychological injury."
Martinez further alleged that, as a proximate result of the defendants' negligence, he had lost earnings and had incurred, and would continue to incur, medical expenses.
B. Stephens's Summary Judgment Motion
Stephens filed a motion for summary judgment or, in the alternative, for summary adjudication, arguing that the undisputed material facts showed that (1) Stephens did not control the premises and thus owed no duty of care to Martinez, and (2) Stephens was not negligent. Specifically, quoting paragraphs 14 and 15 of Martinez's complaint (discussed, ante), Stephens argued that the complaint was "insufficient as to pleading the basic elements of premises liability" because it failed to allege (1) that Stephens owed a duty to Martinez; (2) that Stephens controlled the ropes and stakes that were 40 feet from Stephens's booth; and (3) that Stephens "failed to use reasonable care to discover any unsafe condition and to repair, replace or give adequate warning of anything that could be reasonably expected to harm others." Citing the deposition testimony of Martinez and two other witnesses (Alan Kennedy and Rex Cole), Stephens also argued the undisputed material facts showed that Carlton Oaks's maintenance crew was responsible for setting up the ropes, it was the duty of Carlton Oaks's marshals to ensure that the ropes and stakes were in place, and Stephens did not control the upper slope or the ropes and stakes at the first tee box.
C. Martinez's Opposition
In his opposition, Martinez claimed for the first time that Stephens negligently entrusted the golf car to Schumsky. Specifically, Martinez argued that "[t]he key and essential element to [his] negligen[t] entrustment contention is that [Stephens] was a permitter of the golf cart[,] and [Stephens], as the permitter, is liable for their [sic]own acts of negligence," which caused Martinez's injuries. Citing deposition testimony of Stephens's employee Brown, Martinez argued that the golf cart was assigned to Stephens and Brown at the beginning of the golf tournament, Brown and Schumsky were a twosome in that golf cart, Brown had control of the cart while they played the first nine holes, they both drank alcoholic beverages, Brown observed Schumsky drink five to seven such beverages while they played golf, Brown volunteered Schumsky to drive some women to the bathroom, Brown negligently gave the golf cart key to Schumsky, and Brown's negligence in permitting Schumsky to drive the golf cart when they were both "noticeably impaired" caused Martinez's injuries.
D. Stephens's Reply
In its reply, Stephens objected that Martinez's complaint was "devoid of any factual allegations to support a cause of action for negligent entrustment of a motor vehicle" and that Martinez had failed to allege such a cause of action. Stephens also argued that in the event the court found Martinez had adequately pleaded a cause of action for negligent entrustment, Martinez failed to present admissible evidence showing that Stephens had entrusted the golf cart to Schumsky. Noting that Martinez alleged in paragraph 14 that Schumsky drove a "Carlton Country Club golf cart," Stephens asserted that it was "neither an owner nor a permitter" in relation to the Carlton Oaks golf carts, it "did not [owe] a duty to [Martinez] to prevent [Schumsky] from driving the cart that he had a right to operate," and it "could not have prevented [Schumsky] from driving a cart even if [Stephens] wanted to since [Schumsky] was a paid golfer in the tournament."
Stephens also argued that to the extent Martinez was seeking to hold Stephens liable for serving alcohol to Schumsky and then allowing him to drive a golf cart he was entitled to drive, under section 1714 Stephens, as a social host, could not be held liable for furnishing alcohol to Schumsky.
E. Court's Ruling and Judgment
The court reached the merits of Martinez's opposition argument that there was a triable issue of fact whether Stephens was vicariously liable for negligently entrusting the golf cart to Schumsky, and granted Stephens's motion for summary judgment. In its formal order, the court found (among other things) that (1) there was no evidence to show that Stephens controlled the premises where Martinez's injury occurred; (2) Stephens could not be held vicariously liable on Martinez's negligent entrustment theory because "there [was] no evidence that [Stephens] owned the cart," and thus Stephens "did not have a duty to prevent anyone from driving the cart that had a right to operate the cart from [Carlton Oaks]"; and (3) under subdivision (c) of section 1714, Stephens could not be held liable for providing alcoholic beverages to Schumsky.
On November 16, 2007, the court entered judgment in favor of Stephens. Stephens mailed a copy of the judgment to Martinez on November 20 of that year.
F. Martinez's Notice of Appeal
Martinez filed his first notice of appeal on January 14, 2008. However, that notice erroneously stated that Martinez was appealing the "Notice of Entry of Judgment" rather than the judgment itself. Martinez filed a corrected notice of appeal on February 8, 2008, 80 days after the copy of the judgment was mailed to Martinez.
DISCUSSION
I. TIMELINESS OF MARTINEZ'S APPEAL
Stephens first contends Martinez's appeal is "untimely, thus depriving this Court of jurisdiction." Citing rule 8.100(a)(2) of the California Rules of Court for the proposition that an appellant must accurately and precisely specify the judgment or order appealed from, Stephens contends that (1) Martinez's first notice of appeal, filed on January 14, 2008, was legally ineffective because it stated Martinez was appealing from the notice of entry of judgment, which is not an appealable judgment or order; and (2) Martinez's second notice of appeal—which he filed on February 8, 2008, and which accurately specified the judgment filed on November 16, 2007, as the judgment Martinez is appealing—was untimely. These contentions are unavailing.
All further rule references are to the California Rules of Court.
Generally, a notice of appeal from a judgment must be filed by the earliest of three possible dates: (1) 60 days after the clerk mails to the appellant a notice of entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the appellant serves or is served by a party with a notice of entry of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or (3) 180 days after entry of judgment. (Rule 8.104(a).) "If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b).)
Here, as already noted, the court entered judgment in favor of Stephens on November 16, 2007; Stephens mailed a file-stamped copy of the judgment to Martinez four days later on November 20, and, on January 14, 2008, 55 days later, Martinez filed his first notice of appeal, which stated Martinez was appealing from the notice of entry of judgment.
We conclude Martinez's first notice of appeal sufficed to put Stephens on notice that he was appealing the grant of summary judgment because the only reasonable interpretation of that notice is that he was appealing that judgment, not the notice of entry of judgment. Stephens's reliance on rule 8.100(a)(2) is unavailing because it mandates a liberal construction of a notice of appeal. That rule provides in part: "The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed."
Liberally construing Martinez's first notice of appeal, as we must (rule 8.100(a)(2)), the term "Notice of Entry of Judgment" set forth therein can be reasonably interpreted as identifying to only one judgment in this matter: The summary judgment entered in favor of Stephens. Therefore, since Martinez filed his first notice of appeal on January 14, 2008, within 60 days after Stephens served the file-stamped copy of the judgment on November 20, 2007, we conclude his notice of appeal was timely. (Rule 8.104(a).)
II. SUMMARY JUDGMENT
Noting that he is seeking to hold Stephens vicariously liable on the theory that its employee, Brown, negligently entrusted the golf cart to Schumsky, Martinez contends the court erred in granting summary judgment in Stephens's favor because the court improperly ruled he could not proceed on a theory of negligent entrustment since Stephens did not own the golf cart. Asserting that "[i]t has long been established that negligent entrustment liability is not limited to the owner of a vehicle but also includes persons who permit others to use vehicles in their possession," Martinez claims the court "should have allowed the Negligent Entrustment cause of action to proceed" because the evidence shows Brown permitted Schumsky to use the cart by giving him the keys after observing him consume alcohol. These contentions are unavailing.
A. Applicable Legal Principles
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings... to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Under settled summary judgment standards, a court reviewing the propriety of a summary judgment is limited to assessing the facts and theories alleged in the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Distefano v. Forester (2001) 85 Cal.App.4th at 1249, 1264-1265; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 & 1258, fn. 7.) A motion for summary judgment must show that the "material facts" are undisputed. (Code Civ. Proc., § 437c, subd. (b)(1).) The pleadings act as the measure of materiality in a summary judgment proceeding, and thus frame or delimit the scope of the issues. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381; Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) In Distefano, supra, 85 Cal.App.4th at pages 1264-1265, this court explained that, "[i]f the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion."
Thus, a "defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers." (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) A plaintiff who wishes to rely upon unpleaded theories to defeat a summary judgment motion must move to amend the complaint before the hearing on that motion. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.) In the absence of a request for leave to amend, a court has no occasion to inquire about possible issues not raised by the pleadings. (Id. at p. 1664.)
B. Analysis
Applying the foregoing legal principles, we conclude Martinez was not entitled to raise in opposition to Stephens's summary judgment motion the unpleaded claim that Stephens is vicariously liable based on the theory that its employee, Brown, negligently entrusted the golf cart to Schumsky. Martinez did not assert in his complaint a negligent entrustment cause of action against Stephens or any of its employees, and such a claim is not reasonably encompassed in the allegations set forth in the complaint. Martinez's pleading shows he only sought to hold Stephens (1) directly liable based on a negligence theory of premises liability and (2) liable in some unspecified manner based on a theory of battery. The complaint also shows that Martinez sought to hold Schumsky directly liable based on theories of negligence and battery. The complaint does not mention Brown or any other Stephens employee, and nothing in the record indicates that Martinez sought leave to file an amendment to name Brown in the place of one of the alleged Doe defendants. The complaint does not allege that either Stephens or any of its employees acting in the course and scope of employment negligently entrusted the golf cart to Schumsky. Furthermore, Martinez did not request—either in his opposition papers or at the hearing on Stephens's motion—leave to amend his complaint to allege a claim for negligent entrustment against Stephens.
Because Martinez did not plead a cause of action for negligent entrustment, and he did not seek leave to amend his complaint to allege such a claim, we need not reach the merits of his contention that the court improperly ruled he could not proceed on a theory of negligent entrustment based on the court's finding that Stephens did not own the golf cart. (Government Employees Ins. Co. v. Superior Court, supra, 79 Cal.App.4th at pp. 98-99, fn. 4; Bostrom, supra, 35 Cal.App.4th at p. 1664.) We also need not address Martinez's contention that the court erred in relying upon section 1714 as a bar to pleading negligent entrustment.
The court arguably erred in determining that ownership is an essential element of a negligent entrustment claim. (Jones v. Ayers (1963) 212 Cal.App.2d 646, 658-659 ["one who negligently entrusts the driving of a car to another, whether the entrustor be owner or original permittee, is liable upon common law principles to one who is injured through negligence of the driver"]; Syah v. Johnson (1966) 247 Cal.App.2d 534, 539 [negligent entrustment liability is "imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was proximately caused by the driver's incompetency"]; see also Rest.2d Torts (1965)§ 390 ["One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely... to use it in a manner involving unreasonable risk of physical harm... is subject to liability"].) However, since we need not resolve this issue in this case, we reserve a determination of this question until it is raised in an appropriate case.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.