Green v. SA Recycling CA2/1

Filed 4/25/14 Green v. SA Recycling CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GARY GREEN, B248855

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC472368) v.

SA RECYCLING,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Elia Weinbach, Judge. Affirmed. Law Offices of Richard M. Foster, Richard M. Foster and Angela Berberyan for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Kevin D. Smith, Nicholas M. Gedo and Steven L. Rodriguez for Defendant and Respondent.

Appellant Gary Green (Green) sued SA Recycling, LLC (SA), for negligently maintaining its premises in a manner that caused injury to Green. SA filed a motion for summary judgment, demonstrating that the factual allegations of Green’s complaint were untrue. Green opposed the motion by alleging facts and theories different than those in the complaint. The trial court granted summary judgment because SA negated the breach of duty and causation elements of the cause of action as stated in Green’s complaint. Green did not seek leave to file an amended complaint. Rather, he filed this timely appeal. We affirm because the complaint sets the boundaries of the issues to be resolved on summary judgment and a party cannot defeat summary judgment by moving the goalposts to territory beyond the complaint. A party who wishes to rely on new facts or theories must do so by timely seeking leave to amend. BACKGROUND Green earned his living selling scrap metal and had been to SA’s recycling yard on over 100 occasions for the purpose of selling scrap metal to SA. In December 2010, he was injured at the recycling yard, which resulted in his filing a complaint against SA for negligence.1 After setting forth introductory material, including identification of the parties and Doe, agency and jurisdictional allegations, Green’s complaint stated in pertinent part: “9. Defendant [SA] is in the Recycling business and allows customers to bring scrap materials to their facilities to process for recycling [for] which they pay per pound. Customers are required to break up the materials to allow for them to be weighed prior to payment. “10. On or about December 9, 2010, Plaintiff brought scrap materials to recycle at Defendant’s business . . . .