Judge Audra Mori, Case 20STCV30173 2023-01-11 Tentative Ruling

Plaintiff Lani McKinley (“Plaintiff”) filed this action against defendants Thusuong T. Duong, et al. for damages relating to Plaintiff’s trip and fall on defendants’ property on December 28, 2020. The complaint alleges that defendants negligently “owned, controlled and maintained the property … by negligently and dangerously maintaining the stairway in the parking lot, thereby causing Plaintiff to trip, causing her to fall and sustain injuries.” (Compl. at pp. 4, 5.) Plaintiff asserts causes of action for negligence and premises liability against defendants.

At this time, Defendant Thusuong T. Duong, individually and dba Wilshire Nails & Spa, (“Defendant”) moves for summary judgment, or alternatively, summary adjudication, as to Plaintiff’s complaint. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts Plaintiff tripped and fell on a stairway in the back of the property located at 11968 Wilshire Blvd, Los Angeles, CA 90025, which is a commercial property owned by defendant Geoffrey Schneider dba Schneider Properties (“Schneider Properties”). Defendant provides that she operates a nail salon in suite A of the property, and that suite B is leased by another business. Defendant states that the stairway that Plaintiff fell on is near the back parking lot of the property and is in the rear common area of the property.

Defendant argues she is entitled to summary judgment because Defendant did not own, control, possess, maintain, or repair the subject stairway. Defendant asserts that Schneider Properties had exclusive control and management of the common area. Further, Defendant contends that the incident was not reasonably foreseeable because the stairway was per se an open and obvious condition, so Defendant owed Plaintiff no duty concerning the incident. Lastly, Defendant avers that Plaintiff cannot establish causation because there is no connection between Plaintiff’s injury and Defendant’s conduct.

Plaintiff argues that Defendant has admitted that Defendant exercised control over the common area where Plaintiff tripped and fell. Plaintiff asserts that Defendant testified that Defendant used the common area where the incident occurred for several reasons that benefited Defendant and her nail salon business. In addition, Plaintiff contends that Defendant admitted that Defendant believed the subject stairs were dangerous, such that Plaintiff’s fall was foreseeable. Plaintiff further argues that her safety expert determined that Defendant’s warning sign used for the stairway does not act as a proper warning for ascending the stairway.

Plaintiff, in her opposition, submits three objections to Defendant’s declaration submitted with the moving papers. Plaintiff objects to the entirety of Defendant’s declaration, which is written in English, on the grounds that Defendant admitted she does not speak, read, write, or understand the English language. Plaintiff contends there is thus no evidence that Defendant actually understood what she was signing, and there is no evidence provided showing the declaration was translated to her. In making this argument, Plaintiff cites to Defendant’s following deposition testimony:

Q. Okay. Do you understand that you have been designated at the person most knowledgeable to provide information with respect to certain categories of information that are in this notice?

A. No, sir. Because I don’t understand the English language. So whatever you say to me, I will just you give you an answer.

Q. Am I correct that unless the information in this document is translated to you, you are unable to read and understand it on your own?

Q. Prior to signing the declaration, did you review the lease between Wilshire Nails and Schneider Properties?

Q. … Did you personally, Ms. Duong, review the lease between Wilshire Nails and Schneider Properties prior to signing this declaration?

Q. Okay. You did not discuss this lease with your husband prior to signing this declaration; correct?

A. My husband has read all the documents and let me sign. So I went ahead and signed.

In reply, Defendant primarily contends that her declaration is not needed to grant the motion for Defendant. However, Defendant does not dispute that she does not speak, read, write, or understand the English language. Defendant neither offers an explanation for why her declaration is presented in English if she does not understand the English language, nor does Defendant attest that she otherwise understood what she was signing and the statements therein.

A person is disqualified to be a witness if he or she is “[i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him....” (Evid. Code, § 701(a)(1).) In this case, there is no evidence showing that the declaration was properly translated from a language understood by Defendant to English before Defendant signed it. (See Evid. Code §§ 750 [“[a] person who serves as an interpreter or translator in any action is subject to all the rules of law regarding witnesses.”], Evid. Code § 751(c) provides “[a] translator shall take an oath the he or she will make a true translation in the English language or any writing he or she is to decipher or translate.”], and Evid. Code § 752.)

Defendant professed that she did not understand the English language. If Defendant wished to offer a declaration in English only, it was incumbent on her to establish that its contents had been accurately related to her in a form she could understand, but Defendant did not do so here. Therefore, Defendant fails to properly authenticate her declaration and the relevant lease attached as Exhibit A thereto.

Defendant, in reply, submits an objection to the entirety of Plaintiff’s expert’s, Samuel Attal-Watts, P.E. (“Attal-Watts”), declaration. Defendant contends there is no need for an expert declaration in this matter because there is clear photographic evidence submitted, namely, the photos that Defendant included in her Separate Statement of Material Facts and those photos taken by the expert himself. However, the photos, which depict the stairs from various viewpoints, are not as clear as Defendant would portray them. Attal-Watts’ testimony explains the photographs that he submitted with his declaration. Thus, the Court disagrees that there is no need for the expert declaration. Further, Defendant cites no authority holding that the availability of photographs that are subject to interpretation renders an expert’s declaration inadmissible.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citation.]” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081.)

“In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition… Without the ‘crucial element’ of control over the subject premises [Citation], no duty to exercise reasonable care to prevent injury on such property can be found.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81; see also Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 [“A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.”].) “A tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control. [Citations.] Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition. It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.” (Johnston v. De La Guerra Properties (1946) 28 Cal.2d 394, 401.)[1] Further, “where the invitee has been intentionally or negligently misled into the reasonable belief that a particular passageway or door is an appropriate means of reaching the business area, he is entitled to the protection of a visitor while using such passageway or door… In other words, the invitation, and consequently the duty, of the invitor are sufficiently extensive to protect the business visitor in his use of such means of ingress and egress as by allurement or inducement, express or implied, he has been led to employ.” (Id. at 399.)

Here, Defendant asserts that she did not own, possess, or control the stairway on the day of the incident. To support Defendant’s position, Defendant relies almost exclusively on Defendant’s declaration. However, for the reasons stated above, Plaintiff’s objections to Defendant’s declaration have been sustained. Defendant, therefore, fails to support her motion with admissible and competent evidence. Nonetheless, even if the Court considered Defendant’s declaration, Plaintiff raises a triable issue of material fact precluding summary judgment from being granted in Defendant’s favor.

It is undisputed that Defendant Wilshire Nails leased a spaced from Schneider Properties to operate their nail salon business in 2008. (UMF No. 5). Plaintiff does not contest that at the time of the incident, Defendant Wilshire Nails had an applicable lease agreement with Schneider Properties to lease retail space “A” at the subject property. (Id.). Plaintiff also does not contest that Defendant Wilshire Nails leased only Suite A of the subject property and that another business occupied the only other suite located next door to the nail salon. (UMF No. 6, 7). Moreover, Plaintiff does not dispute that the area of the subject property where Plaintiff fell is considered a common area and is subject to the terms of the lease agreement between Defendant Wilshire Nails and Schneider Properties. (UMF No. 10, 11, 12, 13, 16). Lastly, Plaintiff agrees that Defendant Wilshire Nails did not own the common area where Plaintiff fell. (AMF No. 3).

(Opp. at p. 1:18-27.) The purported lease between Defendant and Schneider Properties provides that Schneider Properties shall have exclusive control and management of the common area, that Schneider Properties only had the right make changes to the common areas, and that Schneider Properties was responsible for making repairs to the common areas. (Mot. Undisputed Material Facts 8-13.)

Plaintiff, however, contends that prior to the incident Defendant exercised control over the common area where the subject stairs are located. Plaintiff avers that prior to and at the time of the incident, Defendant would sweep the floor of the common area, and that Defendant stored tools and cleaning supplies in the common area. (Opp. Pl.’s Additional Undisputed Material Facts (“AUMF”) 8-10.) Defendant also installed a washer and dryer it used for business purposes, placed a large cabinet in the common area, and manually installed a white piece of wood to use as a table for lunch breaks in the common area. (Opp. Pl.’s AUMF 13-15.) Regarding the stairs in the common area, Defendant put down black pads on the top of each step of the stairway, and Defendant erected a red warning sign and arrow on the wall adjacent to the stairs in the common area. (Opp. Pl.’s AUMF 12, 17.) What is more, Plaintiff asserts that there are several parking spots in the back alleyway directly behind the subject property, which Defendant reserves by way of custom signage installed by Defendant, and that Defendant used the rear door behind the property to create a second entrance into its business through the subject common area. (Opp. Pl.’s Additional Undisputed Material Facts 5, 16.)[2] Plaintiff contends that Defendant converted the rear entrance through the subject common area to serve as a second entrance to their business. Defendant admitted that Defendant would tie a rope around the door to make sure it stays open. (Opp. Dennis Decl. at Exh. 2:19-23.)

A factfinder could determine that Defendant encouraged customers to park in the rear of the building and expressly invited Defendant’s customers to access the property through the rear common area where the customers would have been required to encounter the alleged dangerous condition. Furthermore, Defendant was admittedly concerned that somebody could fall from the subject stairs prior to the incident. (Opp. Pl.’s AUMF 18.) The evidence, in making all reasonable inferences in non-moving Plaintiff’s favor, is sufficient to support a finding that Defendant exercised control over the subject common area and stairway. (Johnston, 28 Cal.2d at 400-01; Alcaraz, 14 Cal.4th at 1158-59; see also Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 263-64 [“the pertinent law defines ‘control’ as a “ ‘dramatic assertion’ ” of any of the “ ‘right[s] normally associated with ownership or ... possession’ ” … “commercial benefit [is] to be but one factor” relating to control…”].)

In reply, Defendant argues that Schneider Properties held the exclusive authority to control and repair the common area and stairs. However, even if the lease provided that Schneider was to have exclusive authority over the common area, Plaintiff’s evidence shows that Defendant still exercised control over the common area and stairs. Defendant does not cite any authority holding that the lease absolves it of all liability where there are material issues of fact showing that Defendant exercised control over the common area and invited customers to gain access to its unit through the rear entrance. While Defendant contends that Plaintiff could have used the front entrance to the property, which is located on the street side of the building, the evidence is clear that Defendant was aware that customers used the rear entrance to enter the property, especially those that parked in the rear of the building as Plaintiff did.

Based on the foregoing, there is a triable issue of fact as to whether Defendant exercised control over the subject common area and stairway.

“The elements of negligence are (1) a legal duty to use due care, (2) the breach of such legal duty, and (3) the breach was the proximate or legal cause of injury.” (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.) “In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.)

“While proximate cause ordinarily is a question of fact, it may be decided as a question of law if ' “under the undisputed facts, there is no room for a reasonable difference of opinion.” ' [Citation.]” (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303 [affirming grant of summary judgment on causation].) “To establish the element of actual causation, it must be shown that the defendant's act or omission was a substantial factor in bringing about the injury. [Citation.]” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming grant of summary judgment for plaintiff's failure to establish causation]; see also Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104 [“In order for a plaintiff to satisfy the causation element of a negligence cause of action, he or she must show the defendant's act or omission was a substantial factor in bringing about the plaintiff's harm.”].) “The law does not require that negligence of the defendant must be the sole cause of the injury complained of in order to entitle the plaintiff to damages therefor. All that is required in either respect is that the negligence in question shall be a proximate cause of the injury complained of.” (Modica v. Crist (1954) 129 Cal.App.2d 144, 148 [internal quotations and citations omitted].)

In this case, Defendant contends that there is no legal connection between Defendant’s conduct and Plaintiff’s injury. Defendant again contends that Schneider Properties had exclusive control over the common area, and that Plaintiff did not have to use the stairway because Plaintiff could have used the front entrance instead.

However, as stated above, there are triable issues of material fact concerning whether Defendant exercised control over the subject common area and stairs, including by essentially making the common area into a rear entrance for customers into the property. Furthermore, Defendant was aware that customers, especially those that parked in the rear of the property, used the rear entrance to gain access to Defendant’s property. And Defendant used a rope to keep the rear door open such that in making every reasonable inference in Plaintiff’s favor, Defendant invited customers, including Plaintiff, to access the property through the rear common area and encounter the dangerous condition that Defendant was aware of. Defendant, thus, created a situation where it invited Plaintiff to enter through the rear entrance and encounter the alleged dangerous condition. It was foreseeable that customers, such as Plaintiff, would enter the property through the rear entrance, as opposed to walking around the property to reach the front entrance, and fall on the stairway in the subject common area.

Defendant fails to show that as a matter of law Plaintiff cannot establish causation.

“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) However, this is not always the case. (Ibid.) “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.)

Stated in general terms, the no-duty exception for open and obvious dangerous conditions provides that “ ‘if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ ” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447, 221 Cal.Rptr.3d 701.) Thus, the rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger. (Ibid.)

The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition. (Martinez, supra, 121 Cal.App.4th at p. 1184.) In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer). (Kasparian, supra, 156 Cal.App.4th at pp. 24-25.)

Nonetheless, the obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)

Foreseeability is an elastic factor, and the degree of foreseeability necessary to warrant a finding of a duty will vary from case to case. (Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 509.) In determining whether a given harm was foreseeable, “it is necessary to review the ‘totality of the circumstances’ including the nature, condition and location of the defendant's premises [Citation], in light of the firmly established rule that ‘what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]’ ” (Id.)

Here, Defendant argues the subject stairway was open and obvious, and Defendant asserts that on the wall next to the stairs, there is a warning in bold red lettering reading, “Watch Your Step.” (Mot. UMF 22.) The photos submitted with Defendant’s declaration were taken from the top of the stairway facing out to the rear entrance and rear parking area in the alleyway. (Mot. Duong Decl. ¶ 8.)[3] On one side of the stairway is a wall with a red warning sign reading, “Watch Your Step”, and on the other side is a handrailing. (Ibid.)

In opposition, Plaintiff submits additional photos from her expert, including multiple taken from the rear entrance looking into the property and up the stairway. One of Plaintiff’s expert’s photos taken from just outside the rear entrance shows that when the door is open it seemingly obscures the red warning sign, making its efficacy a question of fact. (Opp. Attal-Watts Exh. 1, Photo No. 3 [p. 12 of electronic pdf].)[4] Further, while the stairway itself is visible to a person walking into the property through the rear entrance, Plaintiff contends that the dangerous nature of the stairs was not.[5] Plaintiff’s expert contends that the subject steps of the stairway are too high and have too much of a height difference from step to step, which makes it difficult for a person using the stairs to maintain safe footing. (Opp. Pl.’s AUMF 6.)

Nevertheless, even if the Court found that the stairway was an open and obvious condition, there is still a triable issue of material fact because Plaintiff’s evidence indicates that it was foreseeable to Defendant that someone could fall off the stairs, and if there was a foreseeable risk of harm, Defendant would have a corresponding duty to use reasonable care to remedy the condition or otherwise protect against the harm. Defendant was admittedly worried that somebody could fall from the stairs, but Defendant still kept the rear entrance open for customers to use to access Defendant’s business. (Opp. Pl.’s AUMF 16, 18.) In making every reasonable inference in Plaintiff’s favor, the evidence demonstrates there is a triable issue of fact concerning whether Defendant was aware that inviting or even allowing the rear common area to be used as an entrance to Defendant’s property posed a risk of injury to Defendant’s customers. Although Defendant contends the rear common area was not the only entrance, Defendant was aware, and so it was foreseeable, that Defendant’s customers would and did use the rear common area to gain access to Defendant’s business. There is no evidence showing Defendant did anything to discourage the use of the rear common area as an entrance. Rather, Defendant propped open the rear door, which could be seen as inviting customers to enter through the rear common area, and as a representation that it was safe for customers to do so. Consequently, even if the stairway itself was open and obvious, a reasonable inference is that Defendant should have foreseen that a customer would be required to encounter the risk to enter Defendant’s business. The question of Plaintiff’s appreciation of the risk, or her imputed knowledge of it, is for the jury to decide.

Based on the foregoing, Defendant does not meet its moving burden, and even if Defendant had, there are triable issues of fact as to whether it was foreseeable that the stairway posed a risk of harm.

Hon. Audra Mori

Judge of the Superior Court

[1] The term “business invitee” in Johnston “was merely a reference to the ‘rigid common law classifications’ of trespasser, licensee, and invitee which we since have abandoned.” (Alcarez v. Vece (1997) 14 Cal.4th 1149, 1165.) The Court now approaches the issue of the duty of the occupier on the basis of ordinary principles of negligence. (Id. at 1158 n. 2.)

[2] Defendant did not submit a response to Plaintiff’s additional undisputed material facts.

[3] For the reasons stated above, the objections to Defendant’s declaration were sustained. However, Plaintiff does not dispute that “the rear entrance to Property where the Stairway is located is depicted in the images … which were taken by Thusuong T. Duong on December 28, 2018” and included in Defendant’s Separate Statement.

[4] The photos showing the stairway further show that each step riser is painted green to contrast from the concrete color of the top of each stair, and that the top stair riser also includes a warning for people to watch their step. However, the parties do not provide any evidence or argument that such warnings were present at the time of the incident.

[5] In her opposition, Plaintiff asserts that the incident occurred after she entered the common area and started her ascent up the subject stairs. Defendant does not otherwise dispute that Plaintiff’s fall occurred in this manner.