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People v. Venice Suites, LLC, 71 Cal.App.5th 715 (2021)
<br />286 Cal.Rptr.3d 598, 21 Cal. Daily Op. Serv. 11,565, 2021 Daily Journal D.A.R. 11,835
<br />DISCUSSION
<br />I. Standard of Review
<br />[2] Summary judgment is appropriate where "all the papers
<br />submitted show that there is no triable issue as to any material
<br />fact and that the moving party is entitled to a judgment as
<br />a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
<br />A defendant moving for summary judgment or summary
<br />adjudication must show "that one or more elements of the
<br />cause of action ... cannot be established, or that there is a
<br />complete defense to the cause of action." (Id. at subd. (p)(2).)
<br />On appeal from a grant of summary judgment, we employ the
<br />same standards as the trial court did and review the record de
<br />novo, considering all the evidence set forth in the moving and
<br />opposing papers except that to which objections were made
<br />and sustained. (Guz a Bechtel National, Inc. (2000) 24
<br />CalAth 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)
<br />[3] Our Supreme Court has made clear that the purpose of the
<br />1992 and 1993 amendments to the summary judgment statute
<br />was " `to liberalize the granting of [summary judgment]
<br />motions.' " ( **604 Perry a Bakewell Hawthorne, LLC
<br />(2017) 2 Cal.5th 536, 542, 213 Cal.Rptr.3d 764, 389 P.3d
<br />1 (Perry); FMAguilar a Atlantic Richfield Co. (2001) 25
<br />CalAth 826, 854, 107 Cal.Rptr.2d 841, 24 P.3d 493.) It is no
<br />longer called a "disfavored" remedy. Rather, it is "now seen
<br />as `a particularly suitable means to test the sufficiency' of
<br />the plaintiffs or defendant's case." (Perry, at p. 542, 213
<br />Cal.Rptr.3d 764, 389 P.3d 1.)
<br />court must consider only those facts before the trial court,
<br />disregarding any new allegations on appeal. [Citation.] Thus,
<br />possible theories that were not fully developed or factually
<br />presented to the trial court cannot create a `triable issue' on
<br />appeal." (American Continental Ins. Co. v C & Z Timber
<br />Co. (1987) 195 Cal.App.3d 1271, 1281, 241 Cal.Rptr. 466.)
<br />"A party is not permitted to change his position and adopt
<br />a new and different theory on appeal. To permit him to do
<br />so would not only be unfair to the trial court, but manifestly
<br />unjust to the opposing litigant." (Ernst a Searle (1933)
<br />218 Cal. 233, 240-241, 22 P.2d 715; G & W Warren's, Inc.
<br />u Dabney (2017) 11 Cal.App.5th 565, 571, 218 Cal.Rptr.3d
<br />75 [where case was tried on theory that defendant was liable
<br />as surety under guaranty agreement, plaintiff was precluded
<br />from contending on appeal that defendant was liable as
<br />principal under purchase agreement].)
<br />[9] [10] Nevertheless, a reviewing court may exercise its
<br />discretion to reach the merits of a newly raised issue in certain
<br />circumstances. (People v Superior Court (Zamudio)
<br />(2000) 23 CalAth 183, 195, 96 Cal.Rptr.2d 463, 999 P.2d
<br />686; FMFortBragg Unified School Dist. a ColonialAmerican
<br />Casualty & Surety Co. (2011) 194 Cal.AppAth 891, 914,
<br />124 Cal.Rptr.3d 144; 9 Witkin, Cal. Procedure (5th ed. 2020)
<br />Appeal § 414.) For example, an appellant may be permitted
<br />to change his or her theory when a question of law alone is
<br />presented on the facts appearing in the record. In that case, the
<br />opposing party is not required to defend for the first time on
<br />appeal against a new theory that contemplates a controverted
<br />factual situation. (Renee J. a Superior Court (2002) 96
<br />Cal.AppAth 1450, 1459, 118 Cal.Rptr.2d 118; 9 Witkin, Cal.
<br />Procedure (5th ed. 2020) Appeal § 415 [cases cited].)
<br />*724 II. The Issue Is Not Forfeited
<br />[4] As a threshold matter, Venice Suites urges this court to Here, the trial court characterized the People's argument
<br />decline to reach the merits of the People's argument on appeal on summary judgment as follows: "In order to reach the
<br />because the People's argument below was that the LAMC conclusion that apartment houses cannot include short-term
<br />expressly prohibited short-term rentals of Apartment Houses, rentals, Plaintiff ties together the following defined *725
<br />not that short-term rentals were impliedly prohibited under a terms from the [Los Angeles Municipal] Code thusly: i) an
<br />permissive zoning scheme. We agree the People did not raise apartment house [as defined in the Zoning Code] consists
<br />the issue of permissive zoning in their briefing below but we of rental units [as defined in the RSO], ii) rental units in
<br />exercise our discretion to consider the issue on its merits. an apartment house may only be occupied by tenants [as
<br />defined in the RSO but not in the Zoning Code], iii) transients
<br />[5] [6] [7] [8] "Generally, the rules relating to the scopias defined in the TOT] are different from tenants, and
<br />of appellate review apply to appellate review of summary accordingly, iv) transients may not occupy **605 rental
<br />judgments. [Citation.] An argument or theory will ... not be units in apartment houses." After the trial court issued its
<br />considered if it is raised for the first time on appeal. [Citation.] ruling, the People did not seek reconsideration or otherwise
<br />Specifically, in reviewing a summary judgment, the appellate advise the court its characterization of their argument was
<br />wrong. Our own review of the People's summary judgment
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