Norma PEREZ, Plaintiff and Appellant,
Axon Development Corp., Defendant and Respondent

No. B158779

In the Court of Appeal of the State of California, Second Appellate District Division One

Appeal from a judgment of the Superior Court of Los Angeles County

June 26, 2003

Henry W. Bockman for Plaintiff and Appellant.

Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, John C. Dewell and Colleen R. Smith for Defendant and Respondent.

Spencer, P.J.


Plaintiff Norma Perez appeals from a summary judgment entered in favor of defendant Axon Development Corp. We affirm.


Defendant owns rental property located on Terra Bella Street in Pacoima. In April 2000, plaintiff and her husband applied to rent an apartment on the property. They requested that defendant replace the carpeting in the apartment before they took possession of the premises.

At the end of April, defendant engaged the services of Quality Painting to install new carpeting in the apartment. Defendant previously had used Quality Painting for carpet installation 30 to 40 times without incident or complaint. Defendant believed Quality Painting to be a reputable company.

After Quality painting installed the carpeting, defendant made a visual inspection of the apartment. Defendant observed no defects in the installation of the carpeting. Plaintiff and her husband also inspected the apartment and indicated that everything was satisfactory. They moved into the apartment.

Plaintiff and her husband lived in the apartment for about a month. During this time, they never observed any carpet tacks protruding through the carpeting on the stairway within the apartment. The carpeting, however, was dark brown, making it difficult to detect a carpet tack protruding through the carpeting. Plaintiff and her husband did not complain to defendant about the carpeting.

On the night of May 20, 2000, plaintiff was walking up the stairway within the apartment. She was barefoot. She stepped on a protruding carpet tack, puncturing her toe. She fell backward, breaking one of her toes.

Plaintiff had stepped on a carpet tack about three weeks prior to the incident in question. It was protruding through the carpeting at the entrance to the kitchen. She did not injure herself at that time. She did not complain to defendant about the protruding carpet tack.


Plaintiff filed her complaint against defendant and Does for "personal injuries (slip and fall)." She alleged defendant and Does were agents of one another and they "negligently, carelessly and wantonly owned, managed, built, designed and/or installed the stairway . . . so as to cause it to be in a dangerous condition . . . ." Carpet tacks under the carpeting on the stairway caused her to fall, injuring her. Defendant denied the allegations of the complaint and asserted a number of affirmative defenses, including that plaintiff's injuries were caused by persons "beyond . . . defendant's supervision and control."

Defendant moved for summary judgment on the ground it had no actual or constructive notice of the defective condition of the stairway. Plaintiff opposed the motion on the ground defendant failed to prove lack of notice, claiming defendant's "own (unlicensed) agent installed the new carpet" on the stairway. In reply to plaintiff's argument, defendant claimed Quality Painting was an independent contractor, pointing to the lack of evidence that it was defendant's agent.

At the hearing on the motion, the trial court stated its tentative decision was to grant the motion on the grounds defendant had no actual or constructive knowledge of the alleged defect and Quality Painting was an independent contractor. Plaintiff's counsel noted that the issue of Quality Painting being an independent contractor was not set forth in the motion for summary judgment. He requested the opportunity to present the court with a "package" having to do with the Labor Code and the presumption that an unlicensed contractor is an employee. The trial court asked defendant's counsel about the independent contractor issue. He stated that it was raised in response to plaintiff's argument that Quality Painting was defendant's agent.

When plaintiff's counsel attempted to argue the issue, the trial court asked why it was not raised in plaintiff's opposing papers and why plaintiff presented no evidence on the issue. Plaintiff's counsel argued that the burden was on defendant to present evidence that Quality Painting was an independent contractor. The trial court indicated that, had plaintiff's counsel asked for a continuance to obtain evidence on the issue, it would have granted one. But once it issued its tentative ruling, it would not grant a continuance. Plaintiff's counsel then asked for a continuance. The trial court reiterated that it did not grant continuances after issuing a tentative ruling. It granted the motion, stating that its tentative ruling would be the final ruling. It also declined to consider plaintiff's "package" on the Labor Code.


Plaintiff contends a contractor's license was required for the services Quality Painting performed for defendant. Plaintiff further contends the trial court erred in refusing to consider statutory and case law on the presumption that an unlicensed worker performing services for which a license is required is an employee. Finally, plaintiff asserts Quality Painting's negligence must be imputed to defendant. We conclude the questions of a licensing requirement and whether Quality Painting was licensed are not properly before us, in that they were not considered by the trial court. Since we cannot consider these issues, and plaintiff has not challenged the summary judgment on any other basis, she has failed to meet her burden of demonstrating that the trial court erred in granting summary judgment.


Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, at p. 849.) Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, at p. 849.)

On appeal, this court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) Inasmuch as the grant or denial of a motion for summary judgment strictly involves questions of law, we must reevaluate the legal significance and effect of the parties' moving and opposing papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, disapproved on another ground in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.)

In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. (Sacks v. FSR Brokerage, Inc., supra, 7 Cal.App.4th at p. 962; McDaniel v. Sunset Manor Co., supra, 220 Cal.App.3d at p. 5.) Additionally, any evidence on which the plaintiff wishes to rely must appear in her separate statement of undisputed and/or disputed facts. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) If it does not appear there, "`it does not exist.'" (Ibid., italics in the original.)

There was nothing in the papers submitted on defendant's summary judgment motion or in plaintiff's separate statement regarding any requirement that Quality Painting be licensed to install carpeting and whether Quality Painting had the required license. The trial court therefore properly declined to address these matters. (Code Civ. Proc., § 437c, subd. (c); United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 337.) We also decline to address them, in that we are limited to consideration of the facts before the trial court. (See AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App.3d 1061, 1064-1065; Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442.)

Plaintiff makes no other argument concerning the propriety of the summary judgment, i.e., she does not argue the trial court erred in granting summary judgment based on a lack of actual or constructive notice of the defective condition of the premises. In addressing an appeal, this court begins with the presumption that the judgment of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) Plaintiff has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citation to relevant authority and argument. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Inasmuch as plaintiff has failed to meet her burden, we presume the summary judgment is correct.

The judgment is affirmed.

We concur: ORTEGA, J., VOGEL (MIRIAM A.), J.


1. On summary judgment, the facts are those supported by the evidence and contained within the parties' supporting and opposing papers. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 5.) [Back]