Judge Kerry Bensinger, Case 20STCV20735 2023-05-16 Tentative Ruling

RESPONDING PARTY: Plaintiff Seung Jung, by and through his Guardian Ad Litem, Hyungjoo Kim

On June 2, 2020, Plaintiff, Seung Jung, by and through his guardian ad litem, Hyungjoo Kim filed this action against Defendant, 638 Landfair, LLC, asserting a single cause of action for negligence. Plaintiff filed the operative Second Amended Complaint (“SAC”) on August 26, 2022.

On February 27, 2023, Defendant filed this motion for summary judgment. Plaintiff opposes and Defendant replies.

As framed by the SAC, Defendant bought the property located at 638 Landfair Avenue, Los Angeles, in 2012. Defendant hired an architect to draw plans for construction of a five-story multiunit residential complex (the 638 Building), the units of which Landfair intended to lease to UCLA students and university hospital workers. Defendant held regular meetings with its architect as he drew up plans for the design of the 638 Building. Defendant hired and directed subcontractors to construct the 638 Building, and Defendant itself oversaw the building’s construction. Defendant inspected the construction on multiple occasions and was familiar with all aspects of the structure, including its balconies and their railings. Each balcony railing has a concrete block foundation 10.5 inches tall and 10 inches wide. On top of the concrete block is a 33-inch-high metal railing. The height of the railing from the floor of each balcony is 43.5 inches. The concrete block foundation serves as a step, inviting tenants to stand on it. The base effectively lowers the height of the railing by 10.5 inches, rendering the height of the railing below that required by the California building code. The concrete block foundation created a dangerous condition for tenants of the 638 Building, who, as known to Landfair, were largely college students. (SAC, ¶¶ 5-13.)

On October 12, 2018, Plaintiff, a college student, and his girlfriend, Sawsan Eidin, returned to their apartment building at 638 Landfair Avenue in Los Angeles, California after having dinner. Sawsan lived on the third floor and Plaintiff lived on the fifth floor. Plaintiff accompanied Sawsan to her apartment, then left to retrieve something from his apartment. Plaintiff returned to Sawsan’s apartment but could not open the door. Plaintiff then went to Apartment Unit 401 where his friends lived on the fourth floor. The door was unlocked as usual, and Plaintiff went in, as he was welcome to do, and went outside to call down to Sawsan. Plaintiff stepped onto the concrete block foundation and bent over the railing. Because the top of the railing was now below the center of gravity to Seung, who was six-feet tall, he flipped over the top. As he swung over the railing, his body came into contact with Styrofoam encircling a scupper located just below the center of the balcony, and it broke. Seung fell to the pavement below. He was critically injured and remains in a comatose state to this day. (SAC ¶¶ 14-18.)

At all relevant times, Defendant owned the 638 Building and was the landlord to the building’s tenants. Defendant owed a duty of care to provide and maintain safe conditions on the premises of the 638 Building. This was an affirmative duty to keep the premises in a safe condition and did not depend on, nor was negated by, any lack of actual or constructive knowledge on Defendant’s part of dangerous conditions. Defendant breached its duty of care by conceiving, designing, building and maintaining a dangerous condition, namely the balconies of the 638 building, whose railings were supported by a cement block foundation, shortening the effective height of the railings.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840.); see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿ (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671; Civil Code, § 1714, subd. (a).)¿ Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.¿ (See CACI No. 1000; Rowland v. Christian (1968) 69 Cal.2d 108.)¿ A defendant may be negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. (CACI No. 1003.) A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. (CACI No. 430; Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.)

A property owner is not the insurer of the safety of its guests.¿ The owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.¿ (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1139-40.)

Defendant objects to the Declarations of John Gardiner, Philip Rosescu, Joseph Jones, Sawyer Lindsey, Andrew Barth, and Lauren Kristi Au submitted in support of Plaintiff’s Opposition. The objections are OVERRULED.[1]

On October 12, 2018, Plaintiff fell from a fourth-floor balcony of Apartment 401 located at 638 Landfair Ave., Los Angeles, California (the “Premises”). (Undisputed Material Fact (“UMF”) UMF 1, 2, 15.) Plaintiff was a tenant of the Premises on the day of the subject incident and lived on the fifth floor. (UMF 4; Plaintiff’s Additional Undisputed Facts (“PAUF”) 26.) Plaintiff returned to the Premises with his girlfriend, Ms. Sawsan Eigin, after a night out. (PAUF 27.) It had been raining that night, and it was still raining when they returned to the building, with the ground and other surfaces visibly wet. (PAUF 28.) Ms. Eigin lived on the third floor. (PAUF 29.) Plaintiff accompanied Ms. Eigin to her apartment unit, twice leaving and returning. (PAUF 32.) Upon Plaintiff’s second return, he could not enter Ms. Eigin’s unit and proceeded to Apartment 401 on the fourth floor of the Premises. (PAUF 33, 38.) As was customary in the building, the door to this unit was unlocked, and Seung went in. (PAUF 39.) Forty seconds after entering unit 401, Plaintiff’s body hit the pavement below. (PAUF 40.) Ms. Eigin found Plaintiff on the ground and called an ambulance. (UMF 5; PAUF 27.) Ms. Eigin did not know what caused the accident. (UMF 6.) There are no known witnesses to the accident. (UMF 11; PAUF 41.) Plaintiff was critically injured and remains in a comatose state to this day. (PAUF 52.)

What happened in those forty seconds is the central subject of dispute between the parties. Plaintiff advances the foregoing argument based upon circumstantial evidence, and declaration of John Gardiner, Plaintiff’s accident reconstruction expert:

Seung stepped out onto the balcony of unit 401, walked toward the railing and stepped up onto the concrete block foundation of the guard rail. (AF 47.) Seung placed his right hand on the top of the railing, and leaned over the edge, perhaps to call out to Sawsan, as her balcony was directly below. (AF 48.) When Seung stood on the 10-inch concrete block, the top of the balcony railing was below his center of gravity. (AF 49.) Seung flipped over the railing because the top of the railing was below his center of gravity. (AF 50.) As Seung flipped over the railing, his body swung from left to right, and his left knee struck the Styrofoam scupper encircling a drainpipe, located below the center of the balcony, and the Styrofoam broke. (AF 51.) Seung could not hang on to the rail using just his right hand, and he lost his grip and fell more than 30 feet to the pavement below. (AF 52.) Seung was critically injured and remains in a comatose state to this day, unable to speak or walk. (AF 53.) Seung would not have fallen had the balcony railing not had a 10-inch concrete block foundation, as his center of gravity would have been below the top of the metal railing as he stood against the railing. (AF 59.)

Defendant argues Plaintiff’s characterization and description of the events is based upon speculation and conjecture.[2] (Defendant’s Reply, pp. 2, 3.)

In 2012 Landfair bought a piece of land located at 638 Landfair Avenue and now owns the building which Landfair built on that land (the 638 Building). (PAUF 1.) Landfair hired an architect to design the building and Landfair regularly reviewed the architectural plans. (PAUF 2.) Because it was an “owner-builder project,” Landfair was “very involved” in designing the building and constructed the building itself. (PAUF 3, 4.) Landfair’s owners personally took walkthroughs of the building while it was being constructed. (PAUF 5.)

The Application for Building Permit for the subject property at 638 Landfair was dated September 4, 2012. The 2010 California Building Code is the prevailing code for the building’s construction. (UMF 14.) The 2010 California Building Code (Section 1013.2 Height) states that required guards shall be not less than 42 inches high measured vertically above the adjacent walking surface. (UMF 17; PAUF 22.) The iron guard rail of the balcony from which Plaintiff fell measures 33 inches from top to bottom. (PAUF 15, 16.) The iron guard rail is planted in a concrete block base which measures 10.5 inches high and 10 inches wide. (PAUF 17.) The distance from the floor of the balcony to the top of the iron guard rail is 43.5 inches, which includes the height of the iron guard rail and the height of the concrete block base combined. (PAUF 18.) The top of the concrete block foundation measures 10 inches wide, with a 3-inch inset from the iron guard rail, and there is no need for such a wide block or such an inset, which effectively functions as a step, inviting people to stand on it. (PAUF 19.) When a person of average size stands on the step offered by the concrete block, the effective height of the iron guard rail is insufficient as a fall protection device. (PAUF 21.) While the top of the iron guard rail exceeds the Building Code requirement for guard rails by 1.5 inches, that is not the case when the concrete block base serves as the adjacent walking surface, which it can since it runs the entire length of the balcony—in this instance, the top of the guard rail falls 9 inches short of the building code requirement, rendering it inadequate as a fall protection device. (PAUF 23.) Defendant disputes that the parapet wall can be considered part of the walking surface. (UMF 17, 18). On inspection after the fall, there were no warning signs of any kind posted on or near the balcony, and Landfair itself does not know if there were any warning signs at all in the building to warn residents of any hazards. (PAUF 25.)

Defendant moves for summary judgment because Plaintiff cannot establish (1) that a dangerous condition existed on the premises, (2) that Defendant had notice of the dangerous condition, (3) that a dangerous condition caused Plaintiff’s fall. For the reasons stated herein, the Court finds that Defendant is not entitled to summary judgment.

The SAC identifies the dangerous condition as a cement block foundation of the fourth floor balcony railing. Defendant relies upon the Testimony of Hyungjoo Kim, Plaintiff’s responses to Special Interrogatories, Set One, and the Declaration of John Brault to show there is no dangerous condition.

testified that neither she nor anyone else knows what caused Plaintiff’s fall. (UMF 6-11.)

2. Special Interrogatories. In responses to Defendant’s Special Interrogatory No.

12, which asked Plaintiff to identify any unsafe conditions that allegedly caused the accident, Plaintiff failed to identify any conditions at all. (UMF 13.)

3. Brault Declaration. Brault is Defendant’s retained expert. In his declaration,

Brault indicates that he inspected the subject guardrail for the balcony in Apartment 401. During his inspection, Brault measured the height of the guardrail, which was 44-inches in height from the adjacent walking surface. The height of the subject guardrail exceeds the minimum 42-inch guardrail height requirement under the applicable 2010 California Building Code. (UMF 14-18.)

Plaintiff argues that Defendant completely ignores Plaintiff’s operative Second Amended Complaint and supplemental responses to Defendant’s Special Interrogatories. The SAC identifies the dangerous condition as the concrete block foundation of the subject balcony railing, (SAC, ¶¶ 18, 22), and Plaintiff’s supplemental responses, served August 22, 2022, identifies the same (Plaintiff’s Response to UMF 12, 13). Specifically, Plaintiff’s supplemental responses to Special Interrogatories Nos. 2 and 12 state that the subject balcony railing:

“has a concrete block foundation 10.5 inches tall and 10 inches wide. On top of the concrete block is a 33-inch-high metal railing. The height of the railing from the floor of each balcony is 43.5 inches. The concrete block foundation serves as a step, inviting tenants to stand on it. The base effectively lowers the height of the railing by 10.5 inches, rendering the height of the railing below that required by the California building code. The concrete block foundation created a dangerous condition for tenants of the 638 Building, who, as known to Landfair, were largely college students. Seung stepped onto the concrete block foundation and bent over the railing. Because the top of the railing was now below the center of gravity to Seung, who was six-feet tall, he flipped over the top. As he swung over the railing, his body came into contact with Styrofoam encircling a scupper located just below the center of the balcony, and it broke. Seung fell to the pavement below.” (Id.)

Moreover, Plaintiff’s supplemental responses are supported by the Declaration of Plaintiff’s retained expert, Philip Rosescu, who, like Brault, conducted an inspection of the subject balcony railing, and arrived at a contrary conclusion. Rosescu opines:

“it is my expert opinion that the balcony as designed, constructed and maintained presents a dangerous condition in the following respects: a) The top of the concrete block foundation measures 10 inches wide, with a 3- inch offset from the iron guard rail. The offset serves no functional purpose. The offset creates an inviting yet hazardous “step” for residents/guests on the balcony. b) When a person of average size stands on the “step” offered by the concrete block, the effective height of the iron guard rail is insufficient as a fall protection device. [¶] The design and construction of the concrete-block and iron-guard reduces the effective guardrail height, undermines the safety purpose of the applicable building code, and creates a hazardous condition.” (Rosescu Decl., ¶¶ 11, 12.)

Plaintiff’s evidence raises a triable issue of material fact regarding whether the concrete block foundation of the subject balcony railing presents a dangerous condition.

Even if there were a dangerous condition on the premises, Defendant argues it did not have actual or constructive knowledge of its existence. Defendant goes on to argue that Plaintiff fails to allege any specific Building Code violations or facts showing a history of prior falls from balconies at the Premises that would have apprised Defendant of the dangerous condition. For this proposition, Defendant cites Jones v. Awad (2019) 39 Cal.App.5th 1200. In Jones, a case involving a trip and fall on the garage stairs of a private home, the Court of Appeal ruled that the plaintiff failed to raise a triable issue of material fact with respect to the issue of actual or constructive knowledge because there was no evidence of prior falls on the stairs.

Jones is inapposite. As Plaintiff points out, Jones involved defendant homeowners who did not design or construct any part of the garage, including the stairs. In other words, the dangerous condition in Jones was brought about by third persons. Here, Plaintiff has alleged that the Premises was an owner-builder project. Defendant hired and regularly met with an architect to draw plans for the construction of the Premises (SAC, ¶¶ 7, 9), hired subcontractors to construct the Premises (SAC, ¶ 9), and oversaw and inspected its construction on multiple occasions (SAC, ¶¶ 9, 10). A reasonable trier of fact could infer that Defendant had actual notice of the dangerous condition posed by the concrete block foundation because Defendant was directly involved in its design and construction.[3] Defendant does not offer evidence to negate these allegations.

Plaintiff alleges that the balcony as designed, constructed, and maintained presents a dangerous condition. (PAUF 19.) Defendant does not claim to be unaware of the facts, e.g., Defendant knew the block foundation was 10.5 inches high. Instead, Defendant circles back and argues the construction and design did not create a dangerous condition; therefore, it was unaware of any dangerous condition. But Defendant was aware of all the relevant facts – the construction and design. As such, Defendant had actual notice of the operative facts. The jury will determine whether the construction and design constituted a dangerous condition.[4]

“[P]roof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence…” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752, citing Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 775.) “A mere possibility of … causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029-1030.)

Plaintiff contends causation is a jury question and the jury can rely upon circumstantial evidence and forensic reconstruction evidence. The Court agrees. “Whether a defendant’s conduct actually caused an injury is a question of fact [citation] that is ordinarily for the jury [citation]….” (Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 744.) Accident reconstructions are admissible, in the trial court’s discretion, if the proponent of the evidence demonstrates that it was conducted under circumstances substantially similar to those of the actual occurrence. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1111, fn. 5; Dirosario v. Havens (1987) 196 Cal.App.3d 1224, 1231; Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 930.) Further, circumstantial evidence of causation is permissible even in the absence of witnesses if it may lead to a reasonable and probable inference that a dangerous condition was a substantial factor in a fall. (See Kaney v. Custance (2022) 74 Cal.App.5th 201, 220 [“[A]trier of fact could draw a reasonable and probable inference in appellant’s favor that she fell while on the stairs based on her testimony that she remembers being on the stairs and waking up on the floor in pain. Further, the evidence would permit a trier of fact to draw a reasonable and probable inference that the dangerous condition of the stairs was a substantial factor in the fall. Specifically, a trier of fact could conclude that appellant would not have fallen if, among other things, she had a handrail to give her balance or give her something to grab onto when stumbling.”]; see also Schumann v. C.R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309, 317 [“While it is true, as pointed out by respondents, there were no eyewitnesses to the accident and plaintiff has no memory of what occurred after she was in the kitchen until she found herself lying in the yard below, a crucial question arises as to whether the presence of a 42-inch top rail would have prevented her from falling over the rail to the yard below or whether the presence of a mid-rail would have prevented her from rolling off the platform to the yard below. It is conceivable that the jury could draw a reasonable inference that if appellant was out on the platform to retrieve her clothes from the line that she then suffered a blackout or fainting spell which either caused her to fall over the rail to the yard below or that she fell onto the platform and rolled off in the space between the top rail and the surface of the platform; that the presence of a 42-inch top rail or the presence of the mid-rail as required by the safety orders would have prevented this fall…. [This is] an issue of fact for the court or jury to determine.”].)

Here, Plaintiff concedes there are no eyewitnesses to the fall. Nonetheless, Plaintiff presents accident reconstruction evidence positing a theory of the fall. That reconstruction theory, as presented by Gardiner, is based upon the circumstantial evidence, video evidence, and foundational measurements. Plaintiff’s accident reconstruction is not based upon mere speculation and conjecture.

Based upon Plaintiff’s presentation, a reasonable jury could find that the concrete block functioned as a step (or the flooring), effectively lowered the height of the guardrail, and created a dangerous condition. Given this scenario, a reasonable jury could find by a preponderance of the evidence that the dangerous condition was a substantial factor in the fall. Plaintiff satisfies its burden to demonstrate a triable issue of material fact with respect to causation.

Triable issues of material fact persist and preclude summary judgment as a matter of law.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Plaintiff submitted several declarations concerning “partying” in and around the building by college students. The Court overruled the objections, in part, because Defendant did not specifically identify the objectionable portions of the declarations. Nonetheless, Plaintiff’s argument is undeveloped and lacks a nexus to the facts at issue here. Not only is there an absence of facts demonstrating “partying” on the night at issue, but also the “partying” theme neither adds to nor detracts from Plaintiffs assertion that a dangerous condition existed, namely, the cement block and railing. If Plaintiff intended to connect the theme of partying college students to the analysis of the dangerous condition, Plaintiff failed to connect the dots.

[2] The Court overruled Defendant’s objections to the relevant declarations, namely Gardiner and Rosescu.

[3] Having concluded that Defendant does not meet its initial burden to show it did not have actual notice of the dangerous condition, the Court does not reach Plaintiff’s argument regarding constructive notice.

[4] Plaintiff does not raise a negligence per se argument. And Plaintiff correctly points out that the lack of notice of a building code violation does not foreclose its argument. (See Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895 [“[O]ne may act in strict conformity with the terms of such enactments and yet not exercise the amount of care which is required under the circumstances]; see also Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626, 630 [compliance with applicable safety regulations did not establish due care as a matter of law but merely relieved the defendant of a charge of negligence per se].)