Zengze Cai, V Monarch Landscape Holdings, Llc

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ZENGZE CAI, an individual, No. 88796-3-I

Appellant,

DIVISION ONE

v.

UNPUBLISHED OPINION

MONARCH LANDSCAPE HOLDINGS, LLC, a foreign corporation; TALAVERA HIGHLANDS HOMEOWNERS ASSOCIATION, a Washington nonprofit corporation; JOHN DOES I-X,

Respondents.

BIRK, J. — Zengze Cai appeals from the superior court’s order dismissing his complaint against Talavera Highlands Homeowner’s Association (Talavera) on summary judgment. Cai asserts that the trial court erred by denying his request for a continuance and by concluding that he failed to present evidence to create an issue of fact. We affirm.

I

The Talavera Highlands neighborhood is located on 232nd Place Southeast in Bothell, Snohomish County, Washington. Residents of the neighborhood are members of Talavera, which is managed by a board of directors consisting of three volunteer residents. Talavera contracted with Monarch Landscaping WA LLC (Monarch) to manage the sprinkler system and other landscaping in the neighborhood.

Cai lived in a neighborhood south of Talavera Highlands and regularly took walks around 10:00 in the morning. Cai’s usual route took him past Talavera Highlands to Miner’s Corner Park. On November 14, 2022, Cai went for his usual walk some time after 10:00 in the morning. Cai described the weather that morning as “chilly”; meteorological data from that morning listed the temperature as approximately 40 degrees Fahrenheit. When he reached Talavera Highlands, Cai noticed some pockets of water on the sidewalk. While trying to avoid the pockets of water, Cai slipped on a patch of ice and fell.

Cai initially sued Monarch for negligence and negligent infliction of emotional distress. On September 3, 2024, Cai filed an amended complaint naming Talavera as an additional defendant.

On July 25, 2025, Talavera filed a motion for summary judgment, asserting that Snohomish County, not Talavera, was responsible for the sidewalk, water on a sidewalk is not hazardous, ice on the sidewalk was not foreseeable in light of the temperature, and Cai failed to identify any negligent act or omission by Talavera. In response, Cai moved for a continuance under CR 56(f) in order to retain experts to opine on foreseeability and which entity had control over the sidewalk. Cai also argued that Talavera breached its duty to him by allowing water from its sprinklers to accumulate on the sidewalk. The trial court denied the request for a continuance, granted the motion for summary judgment, and dismissed Cai’s claims against Talavera with prejudice.

Cai appeals.

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II

Cai contends that the trial court erred by denying his request for a continuance under CR 56(f). We review a trial court’s decision on a CR 56(f) motion for abuse of discretion. Bavand v. OneWest Bank, FSB, 196 Wn. App. 813, 822, 385 P.3d 233 (2016). “ ‘A court may deny a motion for a continuance when (1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.’ ” Pitzer v. Union Bank of Cal., 141 Wn.2d 539, 556, 9 P.3d 805 (2000) (internal quotation marks omitted) (quoting Tellevik v. Real Prop., 120 Wn.2d 68, 90, 838 P.2d 111 (1992)).

Here, Cai sought a continuance to obtain an expert to opine on whether Talavera’s expert surveyor correctly concluded that Snohomish County had control over the sidewalk where he slipped and to obtain an expert to opine on the foreseeability of the hazard. Cai asserted that he had good reason for delaying nearly a year to obtain the desired evidence because it was unreasonable to expect him to retain an expert on foreseeability when Snohomish County was not yet part of the lawsuit. In the same motion, Cai argued that Talavera owed a duty to him regardless of whether it owned the sidewalk. Cai’s own theory of the case defeats his claim that he could not obtain an expert witness until Snohomish

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County became a party to the lawsuit.1 The trial court therefore correctly denied his CR 56(f) motion for not offering a good reason for the delay.

The trial court also correctly denied Cai’s CR 56(f) motion under the second and third parts of the test. In her declaration supporting the CR 56(f) motion, Cai’s counsel stated that she would “like the opportunity to retain my own Professional Land Surveyor to again assist in determining the validity of” Talavera’s surveyor’s findings. Counsel further stated that she “would like the opportunity to retain an expert to opine on the foreseeability of the hazard.” It is not enough for the party asking for a CR 56(f) continuance to simply state that they would like to do more investigation. See Dang v. Floyd, Pflueger & Ringer, PS, 24 Wn. App. 2d 145, 171-72, 518 P.3d 671 (2022). Cai did not specify what evidence he expected to be established through his proposed experts. Nor did he identify how the anticipated expert testimony would create a genuine issue of material fact. His argument in the trial court and on appeal that an expert would “establish that the hazard was foreseeable,” is conclusory at best and does not establish that a genuine issue of material fact exists. Cf. Baldwin v. Silver, 165 Wn. App. 463, 471, 269 P.3d 284 (2011) (“A nonmoving party cannot defeat a motion for summary judgment with conclusory statements of fact.”). Cai fails to show that the trial court erred in denying his CR 56(f) motion for a continuance.

1 Cai’s assertion that “discovery remained open” also does not demonstrate

that he had good reason to delay retaining expert witnesses. Talavera was not required to wait until the discovery period lapsed before it filed its motion for summary judgment. Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 685, 389 P.3d 476 (2017).

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III

Cai also contends the trial court erred by dismissing his claims against Talavera on summary judgment. We review summary judgment motions de novo. Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 777, 425 P.3d 560 (2018). We consider all facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Id. In a summary judgment motion, the moving party bears the initial burden of showing the absence of a genuine issue of material fact. Id. Once the moving party has met its burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” CR 56(e). A summary judgment opponent “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ ” Gingrich v. Unigard Sec. Ins. Co., 57 Wn. App. 424, 430, 788 P.2d 1096 (1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). If the opposing party fails to make a showing sufficient to establish a genuine issue of material fact, summary judgment is appropriate. Johnson, 5 Wn. App. 2d at 778.

A plaintiff asserting a cause of action for negligence must establish “(1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury.” Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994) (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)). A landowner owes a duty to licensees if it knows or has reason to know of a condition on the land that involves an unreasonable risk of harm and should not expect the licensee to discover or

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realize the danger. Id. at 133-34 (quoting Restatement (Second) of Torts § 342 (1965)). A landowner adjacent to a public walkway has a duty to maintain the walkway in a reasonably safe condition for its usual and customary usage by pedestrians only when the landowner uses the sidewalk for its own special purposes. Hoffstatter v. City of Seattle, 105 Wn. App. 596, 601, 20 P.3d 1003 (2001). As to natural accumulations, which appear not to be at issue here, “[u]nless there is a statutory provision to the contrary, landowners have no duty to clear snow and ice from public sidewalks adjacent to their property.” Birdsall v. Abrams, 105 Wn. App. 24, 26, 19 P.3d 433 (2001). But “[l]andowners are liable for the artificial dangerous conditions they cause.” Id. at 27.

Whether Talavera was the owner of the sidewalk or merely an adjacent landowner, “the duty to use ordinary care is bounded by the foreseeable range of danger.” Wells v. City of Vancouver, 77 Wn.2d 800, 803, 467 P.2d 292 (1970); see also McKown v. Simon Prop. Grp., Inc., 182 Wn.2d 752, 764, 344 P.3d 661 (2015). Foreseeability as a question of whether a duty is owed is a question of law, whereas foreseeability as a question of the scope of the duty owed is ordinarily a question of fact. McKown, 182 Wn.2d at 762. The question of foreseeability as to the scope of duty will be decided as a matter of law when reasonable minds cannot differ. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989).

Cai argues that there was a genuine issue of material fact as to whether it was reasonably foreseeable that the sprinkler water would freeze. In support of its motion for summary judgment, Talavera produced evidence from the National Oceanic & Atmospheric Administration showing that the temperature at the time of

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the incident was approximately 40 degrees Fahrenheit and had not dipped below 32 degrees Fahrenheit since November 9, 2022, five days earlier. Cai argues on appeal that the temperature readings, taken at the Snohomish County Airport approximately 11 miles away, were not necessarily reflective of the temperature at Talavera Highlands. Cai did not make this argument in the trial court. We generally do not consider arguments that a party did not make in the superior court. Cave Props. v. City of Bainbridge Island, 199 Wn. App. 651, 662, 401 P.3d 327 (2017). Additionally, Cai’s contention that the temperature may have been different 11 miles away is nothing more than “metaphysical doubt,” and insufficient to raise an issue of material fact.

The cases upon which Cai relies are distinguishable. In Nadeau v. Roeder, 139 Wash. 648, 649, 247 P. 951 (1926), the defendant’s hotel was built in such a way “that snow and water falling on the roof would, and did, run down upon, and freeze on, the sidewalk.” At the time the plaintiff slipped and fell, almost half the sidewalk had been frozen over for more than a week. Id. The court held that when a defendant “ ‘creates a condition which artificially turns water across a sidewalk in such a way as to freeze and render the walk unsafe is guilty of creating and maintaining a nuisance, and is liable for injury to pedestrians thereby caused.’ ” Id. at 650 (quoting 13 RULING CASE LAW Highways § 342 (1916)). Under the facts at hand, the court held the defendant liable for the plaintiff’s injuries. Id. at 650.

In Stone v. City of Seattle, 64 Wn.2d 166, 168, 391 P.2d 179 (1964), the defendants owned an apartment building adjacent to a city sidewalk over which, despite being protected by a curb, tenants routinely drove to reach the building’s

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parking area. Many months prior to the plaintiff’s injury, this regular use caused a hole to develop in the sidewalk, which had already evidenced to be dangerous when another individual fell into it. Id. The court held that, given the location of the parking area, it was reasonably foreseeable that tenants would drive directly over the sidewalk, and the jury was so properly instructed. Id. at 169. The court further held that, in light of the foreseeable use by his tenants, the landowner could be held liable for negligently creating or maintaining the hole in the sidewalk. Id. at 169-70.

The foreseeability requirement asks if a reasonable person in the defendant’s position would be aware of a general field of danger posing a risk to one such as the plaintiff. Asphy v. State, 31 Wn. App. 2d 605, 631, 552 P.3d 325, review denied, 3 Wn.3d 1033, 559 P.3d 1023 (2024). Here, however, Cai has not presented any evidence that Talavera’s actions created a foreseeable risk of harm. Cai does not argue that the presence of water on the sidewalk alone created an unreasonable risk of harm.2 Rather, he argues that it was the possibility that water would freeze that created the risk. However, unlike in Nadeau and Stone, where the conditions developed over days or months to the point where the risk became foreseeable, Cai does not show or even allege that ice was likely to form on the sidewalk next to Talavera Highlands so as to be within the general field of danger of its activity of watering with sprinklers. The only evidence presented as to the conditions prior to Cai’s injury was Talavera’s weather data showing that the

2 For this reason, it is immaterial whether water on a sidewalk is or is not dangerous as a matter of law.

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temperature had not dropped below freezing during the previous five days. In other words, Cai presented no evidence to show that there was a foreseeable risk against which Talavera had to reasonably guard.

Because Cai did not present any evidence to show that there was a foreseeable risk of harm, the trial court did not err in granting summary judgment to Talavera.

III

Because Cai failed to present evidence to create a genuine issue of material fact, we affirm.

WE CONCUR: