Judge Michelle C. Kim, Case 20STCV35416 2023-04-10 Tentative Ruling

Plaintiff Laura Hernandez (“Plaintiff”) filed this action against Defendant Archdiocese of Los Angeles Education & Welfare Corporation, erroneously sued and served as Archdiocese of Los Angeles, (“Defendant”) for damages relating to Plaintiff’s trip and fall on Defendant’s property. Plaintiff alleges that Defendant negligently maintained. Controlled, operated or managed its property as to allow the property to be in a dangerous condition. The complaint alleges causes of action for premises liability and general negligence.

Defendant now moves for summary judgment, or alternatively, summary adjudication, as to Plaintiff’s complaint. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts that Plaintiff does not know what caused her to fall, and that there are no witnesses to her fall. Defendant contends that Plaintiff is unable to establish causation as a result. Further, Defendant argues that because there have never been any prior trip and falls or complaints about the area where Plaintiff fell, Plaintiff is unable to show that Defendant knew or should have known of any alleged dangerous condition, or that Defendant negligently maintained the property.

Plaintiff contends that the evidence shows that a crack in the asphalt caused her to fall and that the crack constituted a dangerous condition that Defendant knew or should have known about. Plaintiff asserts that she testified multiple times at her deposition that a crack caused her to fall, and that there are triable issues of fact as to whether the crack constituted a dangerous condition.

As an initial matter, the Court notes that Plaintiff’s opposition papers reference Plaintiff’s Evidentiary Objections. However, the Court cannot locate any objections filed by Plaintiff in the format required by California Rules of Court, Rule 3.1354(b). The Court rules only on the objections filed by Defendant.

Defendant submits five objections to the declaration of Daniel K. Kramer. Objections 1-5 are not material to the disposition of the motion, and thus, the Court declines to rule on them at this time. (CCP § 437c(q).)

Additionally, Defendant submits 22 objections to Mark Burns’s declaration submitted with the opposition. Objections 1, 5, and 9 are sustained. (See People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].) Objection 14 is sustained to the extent Bruns is asserting an improper legal conclusion. Objections 2-4, 6-8, 10-13, and 15-20 are overruled. Objections 21 and 22 are not material to the disposition of the motion, so the Court does not rule on them at this time. (CCP § 437c(q).)

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.) “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].)

[A] “ ‘plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such 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.’ ” [Citation].

Here, on July 20, 2019, the Guadalupanas, a group of volunteers at the St. Bernard Catholic Church, hosted an annual dinner and fundraising event called the Gran Lunada, at the St. Bernard Catholic School. (Mot. Undisputed Material Fact (“UMF”) 1.) The outdoor event took place on the playground asphalt area, where the volleyball courts are located, and included dinner, a performance by a mariachi group, and dancing. (Id.) The Gran Lunada event has been staged in the same location for approximately twenty years, and the dancing area is always in the same place on the asphalt. (Id.) Plaintiff attended the event with her sister, her sister’s friend, and her cousin. (Id. at 2.) After the mariachi performance, Plaintiff and her sister’s friend, Xochitl Pacheco Hernandez, went to the dance floor area several times to dance. (Id. at 3.) Plaintiff does not recall looking down at the ground to see the area of asphalt that she was dancing on. (Id. at 4.) When she was dancing before she fell, Plaintiff did not notice that there were cracks on the ground below her. (Id.)

Defendant asserts that Plaintiff does not know what caused her to trip and fall. (Id. at 5.) Defendant provides that when Plaintiff was asked at her deposition what caused her to fall, Plaintiff responded, “I don’t know. I didn’t look. I just know that I tripped and fell. (Id.) Defendant asserts that after a break requested by her attorney, Plaintiff came back on the record and said that after she fell she noticed a crack and thought maybe that was what she tripped on. (Id. at 6.) Further, at her deposition, Plaintiff was shown a photograph of her lying on the ground, and Plaintiff pointed out a crack that she things she may have tripped on. (Id. at 7.) Defendant asserts that the crack Plaintiff allegedly noticed after her fall is not close to where she is lying on the ground. (Id.) There are no witnesses to Plaintiff’s fall, and Plaintiff testified that she is unaware of anyone who may have witnessed her fall. (Id. at 8.) No one observed any liquid or foreign debris on the ground to cause Plaintiff’s fall. (Id. at 9.) Defendant further asserts that Plaintiff “was wearing very high, platform wedge shoes when she fell,” and that church volunteer Guadalupe Magallon (“Magallon”) observed Plaintiff dancing in an animated manner, but Magallon did not witness Plaintiff’s fall. (Id. at 10.)

Defendant contends the evidence is sufficient to establish that Plaintiff cannot prove that any condition on Defendant’s property was a substantial factor in causing her alleged fall. In making this contention, Defendant primarily relies on Plaintiff’s deposition testimony wherein the following exchange occurred:

A That I tripped with something, and I fell down, and I placed my hand down and it bent.

(Mot. Compendium of Exhibits, Exh. F at p. 70:14-20.) However, Defendant itself provides that after a break requested by Plaintiff’s attorney, Plaintiff testified as follows when asked how her right foot moved in her shoe when she tripped: “Well, I don't know. I only felt that when I had tripped, I grabbed onto -- I went to the side, I moved forward, and I put my hand down, and then I turned. And then once I looked, I saw that there was a crack. I thought maybe that's what it was.” (Id. at Exh. G at pp. 71-72:25-8.) Further, Plaintiff testified regarding the crack, “I was lying down, like this, because I couldn't look up. So it was, I think, my back. And that's when I looked and saw the crack, and I thought that's why I fell. That was the cause, I think.” (Id. at Exh G at p. 73:16-19.) Plaintiff also identified the crack she saw after she fell during her deposition. (Opp. Pl.’s UMF 5.)

In making every reasonable inference in non-moving Plaintiff’s favor, Plaintiff’s testimony and the photographic evidence are sufficient to raise a triable issue as to whether a crack caused Plaintiff’s fall. To the extent that Defendant states that Plaintiff mentioned the crack after the parties took a break requested by Plaintiff’s counsel, such contentions may be relevant to Plaintiff’s credibility but cannot be resolved at the summary judgment stage. Moreover, Defendant’s photograph depicting Plaintiff on the ground after she fell show a crack in the ground in the area where she fell. (Mot. Trujillo Decl. ¶ 8, Exh. 1.) Although Defendant contends that the crack shown in the photograph is not close to where Plaintiff is laying, Plaintiff testified that when she fell, she moved forward and turned. Accordingly, this evidence does not establish as a matter of law that the crack could not have caused Plaintiff’s fall.

Defendant cites to Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, in arguing that Plaintiff cannot establish causation. In Buehler, the plaintiff alleged she fell on an unknown substance or an improperly waxed floor in the defendant’s store. In finding the store was entitled to summary judgment, the Court held:

To establish negligence it is necessary to link the existence of an improperly waxed floor to the creation of an inappropriately slippery floor. However, the deposition testimony indicated the absence of a slippery or otherwise defective condition. There was no foreign debris of any type on the floor prior to appellant's fall. Appellant had no idea as to what caused her to fall. Appellant candidly admitted that just prior to the fall she had not slipped or had any difficulty keeping her footing. An unbiased witness who saw appellant fall and was only five feet from her when she fell specifically stated that she did not find the floor slippery. Conjecture that the floor might have been too slippery at the location where appellant happened to fall is mere speculation which is legally insufficient to defeat a summary judgment. [Citations.]

Accordingly, all appellant can argue is that she slipped and fell. She lost her balance for some unknown reason…

(Id.) Unlike in Buehler, where the plaintiff did not know and could not identify what caused her to fall, in this case, Plaintiff identified a crack on Defendant’s property that she alleges caused her trip and fall.

Based on the foregoing, Defendant fails to show that as a matter of law Plaintiff cannot establish causation. (Mot. UMF 5-6, 10.)

For a defendant to be liable for injuries to an invitee caused by a dangerous condition on its premises, the owner must have actual or constructive notice of the dangerous condition. (Ortega, supra, 26 Cal.4th at p. 1203.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Id., at p. 1206.) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’ [Citation.] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury.... [Citation.] The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (Id., at pp. 1206–1207.) However, “speculation and conjecture with respect to how long a dangerous condition has existed are insufficient to satisfy a plaintiff's burden.”

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

In this case, prior to Plaintiff’s fall on July 20, 2019, there were no trip and fall incidents, or complaints about the asphalt, in the area where Plaintiff fell. (Mot. UMF 11.) Since Plaintiff’s fall, there have not been any subsequent trip and fall incidents in the area where Plaintiff fell. (Id.) Defendant contends thus that Plaintiff cannot prove a crack presented an unreasonable risk of harm, that Defendant knew or should have known about its existence, or that Defendant negligently maintained its premises.

Defendant’s evidence showing that there have been no other prior incidents or complaints about the asphalt in the area where Plaintiff fell is sufficient to show that Defendant did not have actual notice of the alleged dangerous condition on its property.

However, Defendant does not submit any evidence concerning its inspections of the area where Plaintiff fell. In opposition, Plaintiff submits the declaration of her expert Mark Burns (“Burns”), who opines that the condition of the cracks in the area where Plaintiff fell was such that the cracks were there for months to years. (Opp. Pl.’s Additional UMF 5.) Additionally, Burns attests that there is evidence that Defendant was aware of cracks on its playground because some cracks on the playground had been patched before. In making every reasonable inference in Plaintiff’s favor for purposes of this motion, this would mean that Defendant could have discovered the condition of the asphalt and cracks prior to the incident through reasonable inspection. Further, Plaintiff asserts that there was no one from the planning group for the Gran Lunada event that was designated to inspect the playground area for safety hazards prior to the start of the event. (Id. at 7.)

Therefore, there is a triable issue of fact as to whether Defendant had notice of the alleged dangerous condition.

Lastly, to the extent that Defendant contends that Plaintiff cannot establish that a crack constituted an unreasonable hazard, Defendant submits no evidence showing that the crack could not have constituted a dangerous condition as a matter of law.[1] Other than asserting that there were no previous trip and falls in the area where the incident occurred, Defendant submits no evidence regarding the crack in the playground area. For example, Burns opines that the height differential created by the crack was 5/8 inches high and 1-3/4 inches in width, with an uplift slope of 20.1%. (Opp. Burns Decl. ¶¶ 8, 10, 12.)

Defendant, thus, fails to meet its moving burden to show that the crack Plaintiff identified on its playground is not a dangerous condition as a matter of law.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. Ordinarily, the existence of a dangerous condition is a question of fact. However, it can be resolved as a question of law if reasonable minds can come but to one conclusion. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.)