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Golden Eagle Insurance Corp. v. Grand Auto Supply3/24/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Intervenor Steven Tabor alleges he was injured at a Grand Auto Supply Store--he does not know which one--while performing lighting work for his employer (nonparty Tru-Brite Energy). Plaintiff Golden Eagle Insurance Corporation (Golden Eagle) paid workers' compensation benefits for Tabor and filed an action to recover from defendant CSK Auto, Inc. dba Kragen Auto Supply, formerly Al's and Grand Auto Supply, Inc. dba Grand Auto Supply. Tabor filed a complaint in intervention. The trial court granted Grand Auto's motion for summary judgment, which established that nothing happened at the accident site alleged in the complaints, and neither Tabor nor Golden Eagle could establish the location of the alleged accident. The trial court denied Tabor's motion for reconsideration and request to amend his complaint on matters unrelated to location. Golden Eagle does not appeal from the ensuing judgment. Tabor appeals, contending he is not required to plead or prove the location of his alleged accident because his theory is negligence, not premises liability. We shall conclude Tabor's position is without merit, and we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 14, 2000, Golden Eagle filed a complaint against Grand Auto, seeking to recover workers' compensation benefits paid in connection with a work-related injury Tabor allegedly sustained on January 18, 1999, at 6150 Watt Avenue in North Highlands--premises owned, operated, maintained and controlled by defendant. Tabor was performing lighting work at the time for his employer Tru-Brite Energy. The complaint alleged defendant "negligently permitted a dangerous condition, or other defect, to remain on the sidewalk by permitting a condition to exist in an area commonly utilized for passage by workers and employees."
In April 2001, Tabor filed a complaint in intervention, alleging that on January 18, 1999, he was performing lighting work on defendant's premises at 6150 Watt Avenue in North Highlands when one of defendants' employees negligently caused a number of automobile tires to fall on top of him.
Defendant filed a motion for summary judgment, asserting among other things that (1) a property inspection by the attorneys, with Tabor present, revealed that the alleged accident did not occur at the Grand Auto premises located at 6150 Watt Avenue, as alleged; and (2) Tabor admitted he does not know where the alleged accident occurred, and he did not report the incident to Grand Auto.
The deposition of Tabor showed the following:
"Q: It is my understanding that the accident that occurred for which your lawsuit was filed took place at a Grand Auto Store on Watt Avenue in North Highlands; is that correct?
"A: I don't remember.
"Q: Do you remember the details of your accident?
"A: How it happened?
"Q: Yes.
"A: Yes.
"Q: Do you recall the date on which the accident occurred?
"A: No.
"Q: Do you recall the location where the accident occurred?
"A: No.
"Q: Do you recall that the accident occurred while you were at a Grand Auto Store?
"A: Yes."
Though the record does not appear to establish the number of Grand Auto Supply stores, Tabor asserted (in his opposition memorandu
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