Filed 1/27/20 Terrin v. City of Carlsbad CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHN TERRIN et al.,

Plaintiffs and Appellants,

v.

CITY OF CARLSBAD,

Defendant and Respondent.

D073685

(Super. Ct. No. 37-2015-000024991- CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.

Balaban & Spielberger, Daniel K. Balaban and Andrew J. Spielberger; Greene Broillet & Wheeler and Browne Greene; Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer and Steven T. Swanson, for Plaintiffs and Appellants.

McCune & Harber and Dana John McCune and Dominic A. Quiller for Defendant and Respondent.

Patrick Terrin (Patrick) was killed by a train in Carlsbad. His father and sister, John Terrin and Amanda Sztoltz, respectively, (collectively plaintiffs), sued defendant City of Carlsbad (City) for negligence – wrongful death; dangerous condition of public property – wrongful death; dangerous condition of public property – severe emotional distress; and negligent infliction of emotional distress. The City admitted in response to requests for admission (RFA) that it owned “the contiguous property adjacent to the railroad tracks.” This admission was read to the jury and the jury was instructed that the admission was binding on the City.

Finding this admission ambiguous, however, the court admitted evidence showing that the North County Transit District (NCTD) owned a right-of-way over property within 100 feet on either side of the tracks. Plaintiffs moved for a directed verdict based on the City’s admission that it owned the contiguous property adjacent to the tracks. The trial court denied the motion. The jury found that the City neither owned nor controlled the property. Judgment was entered for the City. Plaintiffs appeal the denial of their motion for directed verdict. We affirm.

BACKGROUND

Facts

Patrick and his sister Amanda Sztoltz visited Carlsbad overnight on August 7, 2014. They went out for dinner and afterward to a bar that was west of the train tracks. Patrick and Sztoltz had to cross the train tracks on Grand Avenue to return to their hotel. This crossing had signs, lights and gates, but the sidewalk gates barred passage only in the direction of vehicle travel.

Sztoltz could see and hear a train coming as she and Patrick walked up to the tracks. A freight train was heading down the tracks at its ordinary speed of about 50 miles per hour. The train’s headlights were shining down the tracks, it was sounding its horn, railroad bells were ringing, and crossing lights were flashing red. Patrick, ahead of Sztoltz, crossed the tracks to the eastern side. The crossing bar on Sztoltz’s side of the sidewalk came down as she reached the tracks. Sztoltz saw Patrick turn around and walk back toward her, motioning her to run across the tracks before the train crossed. Sztoltz shook her head, refusing to cross. The train went past, hitting and killing Patrick. One of the train’s operators saw Patrick standing clear of the tracks, then lost sight of him due to the shape of the train just before the train crossed Grand Street. The brakeman felt and heard the train hit something, put on the emergency brakes, and brought the train to a stop in about 2000 feet. Patrick’s body was between the rails and the platform of the Carlsbad Village Station.

Procedure

Plaintiffs sued the City, alleging that it maintained a dangerous condition on its property that caused or contributed to Patrick’s death. Plaintiffs propounded RFAs to the City, asking the City to admit that it owned or controlled the “subject location,” defined as the location where Patrick died, near the railroad crossing on Grand Avenue. The City served responses stating several objections to each RFA and providing answers without waiving its objections. In response to RFA Nos. 1 and 2, the City denied owning the subject location at or before the time of the subject incident. Subsequent RFAs asked the City to admit that it owned or controlled the area at increasing distances from the subject location, from five feet to 1000 feet, either before or at the time that Patrick was killed. Each time, after setting forth its objections, the City answered that it “owns the contiguous property adjacent to the railroad tracks.”

Plaintiffs also propounded special interrogatories to the City. Special Interrogatory No. 6 asked the City to state all facts that supported its contention that it was not liable for the subject incident. The City responded that it was not liable because the incident “occurred in the North San Diego Rail Corridor, which is owned and maintained by ‘[NCTD]’. NCTD has ownership, maintenance and repair responsibilities for a 200-foot area of right of way covering physical infrastructure, which includes Grand Avenue where the street crosses the tracks . . . .”

The City served amended answers to the RFAs on plaintiffs. The amended responses to RFA Nos. 2, 4, 6, 8, and 12 through 24 stated that NCTD “has owned, maintained, performed repairs, and controlled the SUBJECT LOCATION” since 1972. The City did not timely seek leave from the court to file these amended answers, as required by Code of Civil Procedure section 2033.300, subdivision (a). The City moved for leave of court to amend its responses after plaintiffs had filed motions in limine for the upcoming trial. The court denied the motion without prejudice because it was untimely. The court stated it would address the substantive issues when it considered plaintiffs’ motions in limine.

Plaintiffs filed motion in limine No. 2 to deem conclusively established the City’s responses to the RFAs that it owned property contiguous to the train tracks. Their motion in limine No. 13 sought to preclude evidence at trial about ownership of the tracks, control or ownership of the area immediately surrounding the tracks, and the City’s lack of ownership of the contiguous property. These motions were considered together.

At the hearing on the motions in limine, the City explained that NCTD owned 100 feet of property on either side of the tracks, and plaintiffs knew this fact. Counsel for plaintiffs said ownership of the property was in “great dispute,” relying solely on the City’s admissions as the only contradiction to NCTD’s ownership of the right-of-way. The court ruled that the City was bound by its admission, “such as it is.” It found that the admission, however, was ambiguous. According to the court, the City’s admission did not conclusively establish that it owned or controlled the land where Patrick was killed because the word “contiguous” was ambiguous. The trial court therefore denied both motions in limine—to deem established the City’s ownership of the property, and to exclude other evidence of ownership of the property.

At trial, the court permitted evidence that NCTD, not the City, owned and controlled the property. The assistant manager of the City testified that NCTD owned the right-of-way on 100 feet of land on both sides of the tracks. Plaintiffs’ railroad safety expert testified that BNSF Railway Company (BNSF) owned the tracks from San Diego to San Luis Obispo, and NCTD owned and controlled a right-of-way varying from 50 feet to 200 feet on both sides of the tracks. A 1972 quitclaim deed from Atchison, Topeka and Santa Fe Railway (succeeded by BNSF) to NCTD was introduced into evidence, showing that NCTD owned 100 feet of the right-of-way on the property on both sides of the tracks at the Grand Street crossing.

Plaintiffs read into the record the City’s response to RFA No. 3, that the City owned the contiguous property adjacent to the railroad tracks, as follows:

“[RFA] No. 3:

“Please admit that, at the time of the SUBJECT INCIDENT, YOU owned or controlled the area within 5 feet in each direction from the SUBJECT LOCATION.

“RESPONSE TO ADMISSION NO. 3:

“Defendant City of Carlsbad objects on grounds that this request is grossly overbroad, vague and ambiguous. Moreover, it is duplicative, burdensome, oppressive, and designed to annoy. Further, this request is disjunctive (regarding “‘owned or controlled”‘) and compound per Code Civ. Proc., § 2033.060, subd. (f), seeks information that is not reasonably calculated to lead to the discovery of admissible evidence, lacks foundation and assumes facts. An objection is further interposed based on the ground of relevance as the collision with the train occurred on the railroad tracks. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429. Moreover, this request seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. This request additionally seeks information protected by the attorney-client privilege and attorney work-product doctrine pursuant to Nacht & Lewis Architects v. Superior Court of Sacramento County (1996) 47 Cal.App.4th 214 and Coito v. Superior Court (2012) 54 Cal.4th 480. Without waiving the aforementioned objections, responding party answers as follows: ‘The City of Carlsbad owns the contiguous property adjacent to the railroad tracks.’ ” (Italics added.)

The jury was instructed that a party’s pretrial admission must be accepted as true. While the jury was deliberating, it asked for a copy of the City’s response to RFA No. 3. The court provided the written request and response to the jury.

While discussing the jury’s request for the written RFA and response, plaintiffs moved for a directed verdict that the City owned the property based on its response to the RFA. The court denied the motion.

The jury rendered a special verdict finding that the City did not own or control the property. Judgment was entered for the City. Plaintiffs timely filed this appeal after their motion for a new trial was denied.

DISCUSSION

I

THE COURT DID NOT ABUSE ITS DISCRETION IN DECIDING A POTENTIALLY SUBSTANTIVE ISSUE USING THE MOTION IN LIMINE PROCEDURE

The City contends that we need not reach the substantive issues in this case because plaintiffs could not use motions in limine in lieu of a dispositive motion because doing so circumvents the procedural protections governing such weighty decisions, risks blindsiding the nonmoving party, and could infringe on the right to trial. The City raised this objection in its opposition to the motions in limine, and the trial court implicitly overruled it by hearing the in limine motions.

The law is mixed on this question. In K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948, the court said: ” ‘A court has inherent equity, supervisory and administrative powers, as well as inherent power to control litigation and conserve judicial resources.’ [Citations.] Use of a motion in limine to test whether a complaint states a cause of action ‘falls within these

powers . . . .’ [Citation.]” (Id. at p. 951.) When such a motion is granted ” ‘at the outset of trial with reference to evidence already produced in discovery, [it] may be viewed as the functional equivalent of an order sustaining a demurrer to the evidence, or [a motion for] nonsuit.’ [Citation.]” (Id. at p. 952; accord, Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1285 (Kinda); Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595 (Amtower) [dispositive ruling on motion in limine permissible

“in spite of the obvious drawbacks”].) Other courts have found it inappropriate to use a motion in limine as a substitute for a dispositive motion. (Johnson v. Chiu (2011) 199 Cal.App.4th 775, 780–781; Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 375-376 (Blanks).) Because the trial court had inherent power to do so, we find no error in the court’s consideration of the motions in limine on the ownership of the property, and preclusion of evidence of ownership and control, although that would have foreclosed one of the City’s defenses.

When a motion in limine is used to foreclose a defense or cause of action, we review it as we would a nonsuit or directed verdict. We review the motion de novo, examining the record in the light most favorable to the nonmoving party, construing all inferences and conflicts in the evidence in such party’s favor. (Kinda, supra, 247 Cal.App.4th at pp. 1279, 1285-1286; Amtower, supra, 158 Cal.App.4th at p. 1595; Blanks, supra, 171 Cal.App.4th at pp. 375-376.) Such motions are not favored due to the preference for a full and fair consideration of all evidence. (Amtower, at p. 1595.)

II

PLAINTIFFS’ MOTION FOR A DIRECTED VERDICT LACKED MERIT

Plaintiffs contend that the trial court erred in denying their motion to direct a special verdict that the City owned the property based on its response to the RFA. They request that we remand this case with directions for the court to grant them a directed verdict on the issue of ownership or control. We find no error.

As noted above, we review the court’s ruling on the motion in the light most favorable to the nonmoving party—the City. ” ‘A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party. . . .’ ” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1119 (Wolf).)

Here, instead of no evidence to support a verdict in favor of the City, the evidence at trial substantially supported the verdict in favor of the City, the nonmoving party. Substantial evidence showed that NCTD owned and controlled a right-of-way extending 100 feet on both sides of the tracks. The City’s response to the RFA did not conclusively establish that the City owned or controlled the property where Patrick was killed. To the contrary, the City’s admission that it owned “the contiguous property adjacent to the railroad tracks” was consistent with NCTD owning the right-of-way adjacent to the tracks, and City owning the land that was contiguous to NCTD’s right-of-way. Reviewing the evidence de novo, we conclude that substantial evidence supported a finding in favor of the City.

III

THE COURT DID NOT ERR IN ADMITTING EVIDENCE OF OWNERSHIP AND CONTROL OF THE PROPERTY

Plaintiffs contend that the trial court erred in admitting evidence of the ownership and control of the property, and in failing to find that the City owned the property where Patrick was killed, based solely on the City’s admission that it owned the “contiguous property adjacent to the railroad tracks.” We conclude the court did not err.

Plaintiffs litigated this issue in their motions in limine seeking to exclude evidence of ownership of the property and to bind the City to its admission that it owned the “contiguous property adjacent to the railroad tracks.” The trial court ruled that the City was bound by its responses to the RFAs, and the jury was instructed that it must accept as true the City’s admissions in response to the RFAs. We presume that the jury followed the instructions of the court. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.)

While finding the admissions binding on the City, the court permitted additional evidence of ownership of the property because the admissions were ambiguous. “As rulings on the admissibility of evidence, [in limine rulings] are subject to review on appeal for abuse of discretion.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269 (Mardirossian).) “[T]he appellate court will not disturb the trial court’s decision unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.” (Ceja v. Dept. of Transportation (2011) 201 Cal.App.4th 1475, 1481.) The court’s discretion “is not unlimited, but must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. . . . [T]he law strongly favors trial and disposition on the merits.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420–1421 (New Albertsons) [denial of motion to withdraw admission was abuse of discretion].)

Whether we review this de novo as a motion for a directed verdict against the City, or for an abuse of discretion in admitting evidence of ownership, we view the evidence in the light most favorable to the City, with the aim of serving the interests of justice. We indulge all inferences and conflicts in the evidence in favor of the City. (Kinda, supra, 247 Cal.App.4th at pp. 1285-1286 [in limine motion comparable to directed verdict]; Mardirossian, supra, 153 Cal.App.4th at p. 269 [ruling on admissibility of evidence].)

A. Evidence of Ownership and Control Was Properly Admitted Because the City’s Responses Were Ambiguous

The court denied the motion to exclude evidence about the ownership and control of the property surrounding the tracks because the City’s admission that it owned “contiguous property adjacent to” the tracks was ambiguous. The court did not abuse its discretion and, if we review its order de novo, did not err.

1. Evidence May be Admitted to Explain an Ambiguous Response

“The purpose of the RFA procedure is to expedite trials and to eliminate the need for proof when matters are not legitimately contested.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783 (St. Mary).) Thus, a “matter admitted in response to a request for admission is conclusively established against the party making the admission.” (§ 2033.410, subd. (a); see Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 259–260 (Monroy).) ” ‘[A]dmission requests seek to eliminate the need for proof: “The purpose of the admission procedure . . . is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.” ‘ ” (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353, fn. 5.) The goal of the RFA process is ” ‘ “to secure the just, speedy, and inexpensive determination of every action.” ‘ ” (Id. at p. 353, fn. 6.) “The RFA device is not intended to provide a windfall to litigants. Nor is the RFA procedure a ‘gotcha’ device in which an overly aggressive propounding party . . . may obtain a substantive victory in the case by having material issues deemed admitted.” (St. Mary, at pp. 783–784.)

A response that is subject to different meanings does not conclusively establish a fact. (Monroy, supra, 164 Cal.App.4th at p. 260; Burch v. Gombos (2000) 82 Cal.App.4th 352, 360 (Burch); Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, 277–278 (Fredericks).) Additional evidence may be used to clarify and explain an ambiguous admission. (Monroy, at p. 260; Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 125 [additional evidence properly admitted and considered to explain response to ambiguous RFA]; Fredericks, at pp. 277–278 [parole evidence admitted to explain contract].) Trial courts have the discretion to determine the scope and effect of admissions. (Fredericks, at pp. 277–278.)

In Fredericks, an owner responded to a request for admission by admitting that he had agreed to make payments to a contractor according to a payment schedule. (Fredericks, supra, 189 Cal.App.3d at p. 276.) The owner contended, however, that the intention of the parties was that payments would be made only if work progressed. The trial court received additional evidence on the parties’ interpretation of the contract and entered judgment for the owner. (Id. at p. 277.) The contractor argued on appeal that the trial court was bound by the owner’s admission that he had agreed to make payments pursuant to the contract, without regard for work completed.

The appellate court in Fredericks affirmed judgment for the owner, stating: “In those cases in which the court determines that an admission may be susceptible of different meanings, the court must use its discretion to determine the scope and effect of the admission so that it accurately reflects what facts are admitted in the light of other evidence.” (Fredericks, supra, 189 Cal.App.3d at p. 277.) Further, “[t]he court must have discretion to admit evidence to elucidate and explain an admission, because the admission of a fact does not always reflect the party’s reasonable understanding of that fact.” (Id. at p. 278.)

2. The City’s Admission Was Ambiguous

The court did not abuse its discretion in finding that the City’s response that it “owns the contiguous property adjacent to the railroad tracks” was ambiguous. That phrase is susceptible of different meanings. (See Fredericks, supra, 189 Cal.App.3d at

p. 277.)

Plaintiffs, however, contend the phrase “contiguous property adjacent to” is not ambiguous. Plaintiffs contend that it means the property adjoining the tracks, arguing that “contiguous” has a common meaning and offering several definitions: “touching along all or most of one side”; “near, next, or adjacent [to]”; “adjacent, adjoining, and in actual close contact”; “touching,” “adjoining,” or “adjacent.” Using plaintiffs’ definitions, the City admitted that it owned property “[touching along all or most of one side of] property adjacent to the railroad tracks,” or “[touching, adjoining or adjacent to] property adjacent to the railroad tracks.” While none of these definitions clarify what property the City owned, an ordinary reading is that the City owned the property that was contiguous to the property that was adjacent to the railroad tracks. That is, another entity owned the property adjacent to the railroad tracks, and the City owned the property contiguous to that land.

Plaintiffs reject that interpretation and seek to turn the phrase into “property adjacent to the railroad tracks,” ignoring the prior adjective “contiguous.” They want to disregard the word “contiguous” by stating that it was “mere surplusage” having no legal effect. This argument confirms the finding that the phrase “contiguous property adjacent to” is ambiguous. Otherwise, there would be no reason to consider the word surplusage that must be disregarded. If plaintiffs found the City’s response improper, their remedy was to file a motion compelling a proper response. (See St. Mary, supra, 223 Cal.App.4th at pp. 781, fn. 21.) They did not do so and cannot now seek to modify the response on appeal.

Use of the word contiguous had legal effect. It made the admission ambiguous, but it was not surplusage.

3. Evidence of Ownership Was Properly Admitted

The trial court did not abuse its discretion in admitting additional evidence of ownership. (See Fredericks, supra, 189 Cal.App.3d at pp. 277–278; Kinda, supra, 247 Cal.App.4th at pp. 1285-1286.) There was no prejudice to plaintiffs because they were aware that NCTD had control and ownership of the right-of-way 100 feet on each side of the tracks. Plaintiffs had provided their expert the quitclaim deed showing transfer of the right-of-way to NCTD. Plaintiffs could not rely on an ambiguous response to an admission as a “gotcha” to obtain potentially a windfall from the City. (See St. Mary, supra, 223 Cal.App.4th at pp. 783–784.) Exclusion of this evidence would have been an abuse of discretion by failing to promote substantial justice. (New Albertsons, supra, 168 Cal.App.4th at p. 1421; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644.) The RFA procedure is not “a device to hide or confuse issues.” (Fredericks, supra, 189 Cal.App.3d at p. 278.)

Plaintiffs contend that it was error for the trial court to submit to the jury the issue of the meaning of the admission. The court did not submit to the jury the interpretation of the admission as a matter of law. Rather, it provided the jury with the available evidence of ownership of the property, including the City’s binding admission. After reviewing all the evidence, including the City’s admission, the jury determined the factual question of ownership of the property.

If it was error to submit the question to the jury because the interpretation of the admission was a question of law, we would review the legal meaning of the admission de novo. (See Wolf, supra, 162 Cal.App.4th at p. 1134.) In that circumstance, we independently would conclude that the City admitted that it owned the property that was contiguous to the property that was adjacent to the railroad tracks. Such an interpretation would be consistent with the admission and with the additional evidence. Reviewing the denial of plaintiffs’ motion de novo as a directed verdict, we reach the same result as the jury. The City did not own or control the property where Patrick was killed. (See id., at p. 1119.)

B. Denial of the Motion to Amend Responses Without Prejudice Was Not Dispositive

Plaintiffs next contend that the City was precluded from contesting its responses by admission of additional evidence of ownership, arguing City’s sole remedy to correct such responses was a motion to withdraw or amend its responses, which was denied by the trial court.

The court denied the motion to amend without prejudice and said it would address the substantive issues when it considered plaintiffs’ motions in limine. Denial of an order without prejudice is not an order on the merits. (Diamond v. General Motors Corp. (1971) 20 Cal.App.3d 374, 378; United Medical Management Ltd. v. Gatto ( 1996) 49 Cal.App.4th 1732, 1740 [denial without prejudice does not preclude claim].) The denial of an order has preclusive effect only “if the substance of the claim is tried and determined.” (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1220, citing Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.) The court’s denial without prejudice of the City’s motion to amend its responses to the RFAs was not a substantive ruling, and did not preclude admission of evidence clarifying the ambiguous response.

Whether we review the evidence de novo as denial of a motion for a directed verdict, or for an abuse of discretion in admitting additional evidence of ownership and control of the property, we conclude no error occurred. The additional evidence was properly admitted and plaintiffs were not entitled to a directed verdict in their favor on the issue of ownership and control.

DISPOSITION

The judgment is affirmed. The City to recover costs on appeal.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

GUERRERO, J.