Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC 377623E, Michael Kaiser, Judge. Affirmed.
Law Offices of Warren J. Small, Jr. and Warren J. Small, Jr. for Plaintiff and Appellant.
Watten, Discoe, Bassett & McMains and Lisa J. McMains for Defendant and Respondent.
OPINION
Ramirez, P.J.
1. Introduction
Plaintiff Betti Shook tripped and fell over the base of a portable fence on the campus of Riverside City College (RCC). Plaintiff filed a premises liability action against RCC. After learning the identity of the company that installed the fence, National Construction Rentals, Inc. (National), plaintiff added National as a doe defendant. Upon plaintiff’s request, the court dismissed RCC. National moved for summary judgment on various grounds, including that it did not rent or own the premises and, therefore, cannot be liable for premises liability. The trial court granted summary judgment and dismissed plaintiff’s complaint.
Plaintiff erroneously referred to the college as “Riverside City College” instead of its proper name, “Riverside Community College.”
On appeal, plaintiff contends that the trial court erred in denying her oral request to amend the complaint to add a cause of action for general negligence. Plaintiff argues that there were triable issues of material fact as to whether National was liable for negligently installing or maintaining the fence.
We conclude that plaintiff has failed to show that the trial court abused its discretion in denying her leave to amend where the circumstances indicated that she previously was aware of the defect in her complaint on the motion for summary judgment, yet neither submitted a written request to amend the complaint before the hearing nor provided the court with adequate grounds for granting her request at the hearing. We affirm the judgment.
2. Factual and Procedural History
Plaintiff filed multiple motions to augment the appellate record. In an order dated on February 28, 2006, we granted plaintiff’s April 24, 2006, motion to augment the record as to exhibits A and B. We will refer to these documents as “A1” followed by the exhibit letter and page number. In an order dated on June 5, 2006, we also granted plaintiff’s April 25, 2006, motion to augment the record as to all the attached documents. We will refer to this second set of documents as “A2” followed by the exhibit letter and page number.
On July 9, 2001, plaintiff severely injured her ankle when she tripped over the base of a temporary chain link fence in the parking lot of the RCC campus. National installed the fence in February of 2001. Plaintiff fell when she caught her foot under the base of the fence, which was elevated approximately three inches above the ground.
On July 2, 2002, plaintiff used a Judicial Council form to file an action for premises liability against RCC and Does 1 to 10. The complaint includes the following allegations: defendants negligently owned, maintained, managed, and operated the premises; defendants willfully failed to warn against the dangerous condition; and defendants owned property with a dangerous condition. After an unsuccessful demurrer, RCC answered the complaint and filed a cross-complaint against National. Plaintiff amended her complaint to add National as a Doe defendant. Upon plaintiff’s request, the court dismissed RCC from the action. National answered the complaint and filed a cross-complaint against RCC.
On October 22, 2004, National filed a motion for summary judgment on the following grounds: it was not the owner, occupier, or lessor of the premises; RCC had a nondelegable duty to maintain its premises; it did not cause plaintiff’s injuries; and plaintiff was at fault for her own injuries because the condition was open and obvious.
The court initially set the hearing for National’s motion on February 16, 2005. By that date, plaintiff had not filed opposition to National’s motion. Plaintiff requested a continuance for medical reasons. Although the court intended to grant the motion because it was unopposed, the court decided to allow a 20-day continuance.
At the hearing on March 4, 2005, the court again commented that plaintiff had not filed opposition. Plaintiff’s counsel sought another continuance and explained that he needed additional discovery and had depositions scheduled for the following week. The court again noted its intention to grant the motion and remarked: “When are you going to learn—just give me a brief statement of what you’re going to learn through discovery or depositions that we don’t already know, that they installed the fence on the property at Riverside City College, and its not their property, . . .” Nevertheless, to accommodate plaintiff’s request, the court granted another continuance.
On April 15, 2005, the court granted the motion for summary judgment. The court noted that plaintiff’s sole cause of action was for premises liability against a party who does not own the property. Later, the following exchange took place:
“[Plaintiff’s counsel]: [p]erhaps I can cure the defect by way of an amendment to allege negligence.
“THE COURT: I don’t know of any authority or reason why I shouldn’t grant the motion for summary judgment based on the pleadings. [¶] . . . [¶]
“[Plaintiff’s counsel]: I believe that the Court has the power at any time during the pendency of an action to allow the pleadings to conform to allow an amendment to the pleadings.
“THE COURT: Well, you didn’t provide me with authority for that proposition when it relates to a motion for summary judgment.”
After evaluating National’s evidentiary objections, the court again remarked that National did not own or otherwise control the premises in question. Plaintiff’s counsel suggested that because National owned the fence, he only needed to amend the complaint to replace the word “premises” with the word “fence.” As noted by the court, however, the amendment would not resolve the fact that plaintiff only alleged a cause of action for premises liability. The court granted the motion and entered judgment in National’s favor.
3. Discussion
Plaintiff claims the trial court erred in denying her oral motion to amend the complaint to add a cause of action for negligence. Plaintiff also claims that the evidence presented in support of her opposition demonstrated that triable issues of material fact existed as to whether National was negligent in the installation or maintenance of the fence.
National responds that plaintiff’s request was defective because she failed to file a written motion to amend her complaint. National also argues that plaintiff’s evidence was insufficient to show a triable issue of material fact even if she properly pled a cause of action for negligence.
We need not address the question of whether a properly-pled negligence claim would have survived a motion for summary judgment because plaintiff’s complaint did not include a cause of action for negligence and the court did not abuse its discretion in denying plaintiff’s request to amend her complaint. A summary judgment motion is not a procedure for testing legal theories that have not been alleged. The issues addressed at the summary judgment stage are defined by the actual allegations in the pleadings. (See Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1137, fn. 1.) A plaintiff cannot defeat a motion for summary judgment by advancing a new, unpleaded theory of liability. (See City of Hope Nat. Medical Center v. Superior Court (1992) 8 Cal.App.4th 633, 639.) Therefore, the only question in this case is whether the trial court erred in denying plaintiff’s oral motion to amend her complaint.
As a general rule, the trial court has the discretion to allow plaintiff to amend her complaint. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).) After the demurrer stage or after the defendant has filed an answer, the plaintiff no longer has a right to amend her complaint as a matter of course. The plaintiff, instead, must seek permission to amend the complaint, which can be granted or denied at the court’s discretion. (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612-613.)
To obtain the court’s permission, the plaintiff must file a noticed motion for leave to amend. (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 613.) Even if proper notice was given, the court also may deny the motion if there was an unwarranted delay. “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. [Citation.] . . . The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment. [Citation.]’ [Citation.] ‘The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may-of itself-be a valid reason for denial.’ [Citation.]” (Ibid.) A trial court’s decision denying leave to amend is reviewed for an abuse of discretion. (Id. at p. 612.)
In this case, plaintiff was aware that National installed the fence on RCC’s property when RCC filed its cross-complaint against National on May 27, 2003. Plaintiff amended her complaint by adding National as a Doe defendant on June 18, 2003. Plaintiff’s complaint, however, still contained only one cause of action for premises liability. Even at this stage, plaintiff should have realized the defect in her complaint. At the very latest, plaintiff should have known that National could not have been liable under a theory of premises liability when National filed its motion for summary judgment on October 22, 2004. National specifically stated that it was not the owner, occupier, or lessor of the premises.
By the hearings on February 16, 2005, and March 4, 2005, plaintiff had not filed opposition to National’s motion for summary judgment. Plaintiff also had not filed a motion to amend her complaint. At each hearing, plaintiff requested only a continuance. In objecting to plaintiff’s request at the first hearing, National explained, “My client is an independent contractor. They have absolutely no liability in this case. They are being sued for premises liability for failure to maintain the property. To continue this, it would just be to avoid the inevitable.” At the second hearing, although the court reluctantly granted plaintiff’s request for another continuance, the court also commented on the defect in plaintiff’s case that National was not the owner of the property.
The court held a hearing on National’s motion for summary judgment on April 15, 2005. At the hearing, when the court again reminded plaintiff that she had alleged only a cause of action for premises liability, plaintiff commented, “[p]erhaps I can cure the defect by way of an amendment to allege negligence.”
Under these facts, we cannot say that the court abused its discretion in rejecting plaintiff’s request to amend her complaint. Plaintiff should have filed a noticed motion before the final hearing. “If 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. [Citations.]” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; see also Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1042, fn. 9; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18.)
Additionally, when the court asked plaintiff for authority for her position, she could not provide adequate justification for an amendment. We note that, if plaintiff’s suggestion constituted a request for leave to amend, the court’s comment on plaintiff’s failure to provide authority constituted its reason for denying plaintiff’s request. In her opening brief, plaintiff cites numerous cases that discuss the court’s discretion to grant leave to amend the complaint, some of which refer to the summary judgment stage. Plaintiff’s excessive citations to authority on appeal do not make up for her failure to provide any authority at the hearing below. The defect in her complaint was obvious. National and the court repeatedly pointed out the defect. Plaintiff had ample time to request leave to amend and prepare an explanation for an amendment. At the hearing, however, plaintiff offered no adequate argument or authority.
In any event, the general principle that the court has discretion to grant leave to amend at the summary judgment stage does not suggest that leave to amend would have been warranted in this case. Here, instead of filing a timely and noticed motion, plaintiff first suggested an amendment at the hearing on the motion for summary judgment. Moreover, in attempting to characterize her claim as a good cause of action that was only imperfectly pleaded, plaintiff fails to appreciate the complete defectiveness of her complaint. It is true that “‘[a] motion for summary judgment may effectively operate as a motion for judgment on the pleadings.’ [Citation.] Where the complaint is challenged and the facts indicate that a plaintiff has a good cause of action which is imperfectly pleaded, the trial court should give the plaintiff an opportunity to amend. [Citations.]” (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1067.)
In this case, however, plaintiff filed a form complaint with a single cause of action for premises liability. She alleged that defendants negligently owned, maintained, managed, and operated the premises; defendants willfully failed to warn against the dangerous condition; and defendants owned property with a dangerous condition. Although these allegations initially were directed at RCC, plaintiff made no changes to these allegations after adding the fence manufacturer as a Doe defendant. This was not a good cause of action imperfectly pleaded. It was defective both in form and content. There was nothing salvageable in this particular cause of action.
It was not incumbent upon the court to consider the materials submitted in support of plaintiff’s opposition to the motion for summary judgment before denying permission for leave to amend. A plaintiff’s opposition papers may correct certain factual errors in the complaint, such as a missing element. (See, e.g., College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 5 [involving a missing element]; Kirby v. Albert D. Seeno Construction Co., supra, 11 Cal.App.4th at pp. 1067-1070 [adding a necessary allegation]; Williams v. Braslow (1986) 179 Cal.App.3d 762, 774 [correcting a factual allegation]; Bahan v. Kurland (1979) 98 Cal.App.3d 808, 812 [same].) But plaintiff’s complaint did not contain merely a “minor technical defect” that could have been cured by reference to the opposition papers. Plaintiff wanted the court to rely on her opposition papers to supply an entirely different theory of recovery. In addition to being unfair to the moving party, this went far beyond what was required of the court.
Under these circumstances, we conclude that the trial court did not abuse its discretion in denying plaintiff’s request for leave to amend her complaint.
4. Disposition
We affirm the judgment. National shall recover its costs on appeal.
We concur: McKinster, J., King, J.