Judge: Steven A. Ellis, Case: 21STCV39716, Date: 2025-02-28 Tentative Ruling

Case Number: 21STCV39716    Hearing Date: February 28, 2025    Dept: 29

Miller v. Magady
21STCV39716
Defendant’s Motion for Summary Judgment

Tentative

The motion is denied.

Background

On October 28, 2021, Julia Mary Miller (“Plaintiff”) filed a complaint against Terry Magady (“Defendant”) and Does 1 through 20, asserting causes of action or premises liability and negligence arising out of an incident on November 10, 2019, in which, Plaintiff alleges, she tripped and fell on concrete surrounding a pool area outside a residence on Sunnybrae Avenue in Winnetka.

On August 18, 2022, Defendant filed an answer.

On January 19, 2024, Defendant filed this motion for summary judgment. Plaintiff filed an opposition on February 14, 2025. On February 21, 2025, Defendant filed a reply.

Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Discussion

On November 10, 2019, Plaintiff tripped and fell at 7959 Sunnybrae Avenue in Winnetka (“the Premises”) while she was walking toward the pool area. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 1.) Defendant owns the Premises. (DSUMF, No. 2.)

Plaintiff was viewing the Premises on the date of the accident, and between 12:30 and 12:45 pm she exited the rear sliding door of the residence and stepped down on to the concrete raised patio; while walking toward her husband and son, Plaintiff missed the single step down from the patio and fell forward on to the backyard concrete hardscape. (DSUMF, No. 6.)

Plaintiff did not notice the step down. (DSUMF, No. 8.) Nothing obstructed her view. (DSUMF, No. 9.) She did not trip. (DSUMF, No. 7.) Plaintiff alleges that the step down blended into the concrete due to its color. (DSUMF, No. 3; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 2.)

In deposition, Plaintiff estimated that the size of the step down was approximately “three-quarters of an inch to an inch.” (Plaintiff’s Depo. [Petrosyan Decl., Exh. B.], at 64:14-65:8.) But Plaintiff also stated that she “could not ascertain from looking at the patio and the tiki bar area what the height of that was.” (Id., at 65:4-8.)

Both sides’ experts testified, however, that the size of the step down was much larger. Defendant’s expert John Brault performed a site inspection on June 11, 2020, and measured the different between the height of the patio and the concrete hardscape as 3 and 3/4 inches. (Brault Decl., ¶¶ 7-8 & Exh. C.) Plaintiff’s expert Mark Burns performed a site inspection on October 10, 2024, and testified that that the step down “varied from 3-4 inches in height.” (Burns Decl., ¶¶ 6, 13.)

The backyard concrete patio was part of the original construction of the residence between 1954 and 1955 and complied with the building codes applicable at that time. (DSUMF, Nos. 13-16; Burns Decl., ¶ 9.)

In her complaint, Plaintiff asserts causes of action against Defendant for premises liability and negligence. The basic elements of a cause of action for negligence and for premises liability are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

The existence and scope of duty are legal questions for the court. (Brown, supra, 11 Cal.5th at p. 213; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36.) The general rule governing duty is set forth in Civil Code section 1714: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) This establishes what the California Supreme Court has described as the “default rule” that every person has a legal duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Annocki, supra, 232 Cal.App.4th at p. 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their [customers’] use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition.” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036.)

Plaintiff has the burden of proving the existence of a dangerous condition. A court may not presume that there was a dangerous condition merely because the plaintiff was injured. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 241 [describing such an argument as “reason[ing] backwards”].) The fact of an accident does not establish that the owner of the property was negligent. (Brown v. Poway (1993) 4 Cal.4th 820, 826.)

In his motion for summary judgment, Defendant argues that he did not owe any duty to Plaintiff, and that he did not breach any duty owed to Plaintiff, because there was no dangerous condition on the premises. Defendant’s expert Mr. Brault provided an opinion that the backyard concrete patio of the Premises complied with the building code at the time of construction; that no change in color or “nosing strip” was required; and that the change in elevation was “not a dangerous condition to a pedestrian using reasonable care such as scanning the patio prior to traversing it.” (Brault Decl., ¶ 11.)

Plaintiff presents contrary evidence, however. In her deposition, she testified that as she stepped outside, “it looked like it was a solid piece of concrete, flat. I did not notice any kind of deviation, any step down anything. It just looked like a flat solid piece of concrete, and when I proceeded out is when I fell.” (Plaintiff’s Depo., at 33:2-9.) Supporting this testimony, Plaintiff’s expert Mr. Burns stated, based on his inspection, “The color pattern between the concrete hardscape of the pool and patio was consistently similar to each other which would present as difficult to perceive that a step was present.” (Burns Decl., ¶ 13.) “Since there was a step down from the residence to the patio, it was not typical or expected that another step down from the patio to the pool hardscape would be present.” (Id., ¶ 14.) Mr. Burns also notes, “Various publications indicate that single-steps pose as difficult to perceive conditions as the difference in elevations may be slight with poor visual cues.” (Id., ¶ 15.)

The Court has considered the evidence and the argument submitted by both sides. Viewing the evidence in the light most favorable to the non-moving party, and drawing all reasonable inferences in her favor, the Court concludes that there are triable issues of fact on the issue of whether a dangerous condition was present (that is, whether Defendant breached a duty of care owed to Plaintiff and others). The finder of fact could reasonably agree with Defendant and find that there was no dangerous condition. The finder of fact could also reasonably agree with Plaintiff and find that there was a dangerous condition. On this record, the issue of a dangerous condition cannot be resolved as a matter of law.

Accordingly, the motion for summary judgment is denied.

Conclusion

The Court DENIES Defendant’s motion for summary judgment.

Moving Party to give notice.