Case Number: BC608494 Hearing Date: March 26, 2018 Dept: 92

GAGIK ASATRYAN,

Plaintiff(s),

vs.

VLADIMIR MANASIAN, ET AL.,

Defendant(s).

Case No.: BC608494

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

March 26, 2018

1. Allegations of the Complaint

Plaintiff, Gagik Asatryan filed this action against Defendant, Vladimir Manasian for damages arising out of a fall from a ladder on Defendant’s property. Specifically, Plaintiff’s complaint alleges:

Plaintiff Gagik Asatryan was at Defendant Vladimir Manasian’s home, located at 1725 Ridgeway Drive, Glendale, CA 91202, on February 22, 2014. As Plaintiff was stepping down from Defendant’s ladder, he fell and injured his right ankle, resulting in a compound fracture. Plaintiff further alleges that the ladder was faulty.

2. Motion for Summary Judgment

Defendant moves for summary judgment on the complaint, contending (a) the ladder was not dangerous, (b) Defendant lacked actual or constructive notice that the ladder was dangerous, and (c) nothing Defendant did was a proximate cause of Plaintiff’s injuries.

Of note, Pacific Specialty Insurance Company was granted leave to intervene on behalf of Defendant, who cannot be located; the motion, therefore, is brought by Pacific on Defendant’s behalf.

a. Evidentiary Objections

Plaintiff submitted evidentiary objections with his opposition papers. Objecton 1 is sustained. The Court need not rule on the other two as they are not necessary to the decision.

Defendant submitted evidentiary objections with the reply papers. Objections 8,11,13,15,16 and 19 are sustained. The rest are overruled.

b. Ladder Not Dangerous

Defendant’s primary contention on summary judgment is that the ladder was not dangerous. Defendant’s facts 14-16 provide specifications concerning the ladder at issue, and are not disputed by Plaintiff. Fact 17 establishes that Plaintiff weighed less than the ladder was designed to hold, and is also not disputed by Plaintiff.

Facts 18 and 35 the key facts concerning whether or not the ladder was dangerous. The Court finds them both disputed. Fact 18 states, “There was no damage to the ladder prior to plaintiff’s fall.” The separate statement cites the Deposition of Plaintiff, p. 168 and the Declaration of Quan, par. 10 Specifically, Defendants points to the portion of Plaintiff’s deposition wherein he was asked whether he noticed any damage to the ladder prior to using it and stated that he did not. Defendant also relies on the Declaration of Quan, an expert in engineering, but that paragraph does not say there was no damage to the ladder before the fall.

Fact 35 says the damage to the ladder visible upon inspection after the fall was a result of the fall and not a pre existing condition. The separate statement cites Quan Dec. paragraphs 9-11, wherein Quan opines that the ladder could not have collapsed under Plaintiff’s weight and there were no defects in it because Plaintiff admitted that he examined it for 20-40 seconds without noticing any problems, the spreader bars were locked into place and he shook the ladder to ensure this.

The problem with Quan’s declaration is that it does not state that the type of problem with the ladder that is at issue in this case would have been revealed in Plaintiff’s brief visual inspection. Defendant objects to Plaintiff’s expert’s conclusion that the damage to the ladder caused the fall, correctly noting that Plaintiff’s expert only examined the ladder AFTER the fall, he lacks foundation to state what the condition of the ladder was PRIOR to the fall. This same objection, however, applies equally to Defendant’s expert’s analysis. Defendant’s expert only reviewed the state of the ladder after the fall. Absent competent evidence that Plaintiff’s inspection of the ladder would have revealed the type of damage at issue, Defendant failed to meet his moving burden in this regard.

c. Lack of Notice of Dangerous Condition

Defendant contends there is no evidence that he had notice of the dangerous condition. Fact 19. This fact is supported by Plaintiff’s deposition, pages 73 and 100. Plaintiff’s testimony at page 73 concerns Plaintiff’s lack of personal knowledge concerning Defendant’s physical presence at the property at issue. Page 100 indicates that Plaintiff has no knowledge of when the ladder at issue was bought.

Fact 19 and Plaintiff’s testimony is not sufficient to establish Defendant’s lack of notice. A defendant moving for summary judgment or summary adjudication must introduce admissible evidence in order to shift the burden of proof to the plaintiff. There are two ways for the moving party to make out the necessary prima facie case. First, a defendant may present evidence that – if uncontradicted – constitutes a preponderance of evidence that plaintiff cannot establish an essential element of its case. This approach, which requires offering evidence that negates a key element of the plaintiff’s cause of action, is known as the “tried and true” approach. See, e.g., Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.

Alternatively, a defendant may present circumstantial evidence that the plaintiff does not now possess and cannot reasonably obtain the evidence needed to establish one or more elements of a claim. This is known as the “no evidence” approach and is described in Aguilar v, Atlantic Richfield Company (2001) 25 Cal.4th 826, at 854. A defendant making a “no evidence” motion must introduce admissible evidence (by declaration or otherwise) that, in response to the full panoply of discovery devices (request for production, interrogatories, depositions etc.), the plaintiff has produced factually devoid responses sufficient to support an inference that the plaintiff cannot make out a prima facie case on an element of its case. In addition, a defendant making a “no evidence” motion must also establish that, by the time the case comes up for trial, the plaintiff “cannot reasonably expect to obtain” the evidence necessary to raise a triable issue of fact on the issue. Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App. 4th 64, 83.

Defendant herein failed to do either. He failed to provide evidence that he lacked notice that the ladder was defective, and he failed to provide evidence that he has propounded the full panoply of discovery and Plaintiff’s responses have been factually devoid. The motion on the ground of lack of notice is therefore also denied.

d. Causation

Defendant’s final argument is that Plaintiff cannot establish causation. Defendant does not, however, provide any material facts in addition to those stated above in this regard. Indeed, Defendant concedes he asked Plaintiff to use Defendant’s own ladder to check something on his property. Facts 11 and 12. Absent a showing that the ladder was not dangerous and that Defendant lacked notice the ladder was dangerous, Defendant did show he did not contribute to Plaintiff’s fall.

The summary judgment motion on this final ground is therefore also denied.