Case Number: BC644836 Hearing Date: March 15, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTED

I. INTRODUCTION

On December 22, 2016, Plaintiff Lauriza Tabita (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”) and County of Los Angeles for dangerous condition of public property. City moves for summary judgment on grounds it is entitled to trail immunity, no dangerous condition caused Plaintiff’s injuries, and it is entitled to design immunity.

II. FACTUAL BACKGROUND

City owns and manages Seoul International Park in Los Angeles, the parking lot within the park, and a stairway of approximately 4 steps and a partial step to the rest of the park, including a gymnasium. (Undisputed Material Fact “UMF” No. 1.) The Park is a recreational area where youth programs, adult programs, classes, sports programs, and arts and crafts classes take place. (UMF No. 5.) The Park offers sports programs in baseball, girls softball, basketball, soccer, futsai, tiny tot sports, and girls play LA. (UMF No. 6.) The stairs on which Plaintiff fell are on a passageway from the Park’s parking lot to the Park’s recreation center. (UMF No. 8.)

On June 7, 2016, Plaintiff suffered personal injury when she fell as she descended the stairway from the parking lot on her way into the Park and its gymnasium, intending to work in the gym as a volunteer election poll worker. (UMF No. 9.) Plaintiff alleges she fell because the stairs constituted a dangerous condition. (UMF No. 3.) Plaintiff contends that the stairs were in a dangerous condition because she was unable to use a handrail to regain her balance when she began to lose her balance while walking down the stairs. (UMF No. 10.)

III. LEGAL STANDARDS

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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

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.)

IV. EVIDENTIARY OBJECTIONS

City’s Evidentiary Objections to the Declaration of Mark J. Burns

Objections Nos. 1, 4, and 5 are OVERRULED.

Objections No. 2 is SUSTAINED as to hearsay and improper expert opinion.

Objection No. 3 is SUSTAINED as to lacks foundation and speculation.

V. DISCUSSION

As framed by the Complaint, Plaintiff contends the stairs leading from the parking lot to the building housing the gymnasium at Seoul International Park was dangerous, hazardous, and unsafe. As a proximate result of City’s negligence and carelessness, Plaintiff sustained injuries. (Complaint, ¶¶ 7 8.)

Trail Immunity

“Even if a dangerous condition is demonstrated, a public entity may still prevail through a variety of statutory immunities, which the public entity may assert as an affirmative defense.” (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 945.) A public entity is not liable for an injury caused by the condition of any unpaved road that provides access to fishing, hunting, camping, hiking, riding (including animal and all types of vehicular riding), water sports, and recreational or scenic areas if such road is not: (1) a city street or highway; (2) a county, state, or federal highway; or (3) a public street or highway of a joint highway district, boulevard district, bridge and highway district, or similar district formed for the improvement or building of public streets and highways. (Gov. Code, § 831.4, subds. (a).) The immunity provided by this statute also applies to liability for injuries caused by the condition of any trail that is used for any of the above purposes, either paved or unpaved, including bicycle paths. (Gov. Code § 831.4, subd. (b); Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097.) The immunity also applies to liability for injuries caused by a condition of any paved trail, walkway, path, or sidewalk on an easement of way which provides access to any unimproved property, so long as the public entity reasonably attempts to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. (Gov. Code, § 831.4. subd. (c).)

The immunity granted by this provision is absolute. (Astenius v. State (2005) 126 Cal.App.4th 472, 476.) The immunity extends to trails that are used for the activities listed in subdivision (a), and to trails that are used for access to such activities. (Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 224-229.) This immunity is afforded to encourage public entities to open their property for public recreational use, because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would likely cause many public entities to close such areas to public use. (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413.) “Although the purpose for which a road or trail was being used is ordinarily viewed as an issue of fact . . . it becomes one of law if only one conclusion is possible.” (Gianuzzi v. State of California (1993) 17 Cal.App.4th 462, 467, citation omitted.)

City argues the Park is a recreational area and the stairs constitute a path providing access to the recreational area. Further, City contends that requiring it to install guardrails everywhere it might be reasonable prudent would greatly undermine the objective of trail immunity, which is to encourage access to recreational areas. (Arvizu v. City of Pasadena (2018) 21 Cal.App.5th 760, 767; Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1084.)

In Opposition, Plaintiff argues trail immunity does not apply because the gymnasium is not merely used for recreation. It also serves as a community center with conference rooms and offices offering classes for children and adults, afterschool care, child care, seasonal holiday celebrations, and teen clubs and programs. The subject stairs are meant to provide a transition from one level to the next, such that anyone using the parking lot may access the community center and vice versa. There are many routes to the community center which include a handicap ramp, a fire lane, and a sidewalk.

In Treweek, the court considered how far the definition of path or trail could be expanded, and in particular whether a boat ramp connecting the water and the land was a “trail” within the meaning of the trail immunity statute. The court started with the proposition, “The fact that a structure provides access to a recreational area does not necessarily mean it is a ‘trail’ within the meaning of the statute—that is, unless the meaning of the word ‘trail’ is enlarged to cover any structure over or upon which people pass on their way to an area of recreational activity.” (Treweek, supra, 85 Cal.App.4th at pp. 229-230.) The court then considered whether a ramp was a trail; “‘Path’ is a synonym for ‘trail’ [citations], but ‘ramp’ is not. ‘The word “ramp” has a common meaning and indicates a way or passageway connecting two different levels on an inclined plane. [Citations.]’ [Citation.]” (Id. at pp. 231-232.) The court noted that a ramp nevertheless could be within the immunity if “it is an integral part of a ‘trail’ . . . and essential to the full use and enjoyment of that ‘trail’ by the public.” (Id. at p. 232.) But the public entity had not argued that the boat ramp was part of and essential to the full use of a trail. The record was not clear “as to whether the ramp at issue connects the dock to a boat or instead connects a parking lot to a dock,” and “[n]othing in the complaint or in any other pleading suggests that the boat ramp is connected at either end to a path arguably constituting a ‘trail’.” (Id. at p. 233.) Because there was no reason to believe the ramp was an integral part of a “trail,” “the policy considerations supporting immunity do not come into play.” (Id. at p. 234.) The court ended by concluding the ramp was not a “trail.” (Ibid.)

Defendant’s moving papers do not consider Treweek and instead argues “[t]he key concept is ‘access’” to public property usable for recreational purposes. But the statute does not state that any structure or way of access to public property for recreational purposes is within the immunity. And, Defendant’s cases do not go that far. In Giannuzzi v. State of California (2003) 17 Cal.App.4th 462, the plaintiff was riding a motorcycle on a dirt trail. In Carroll v County of Los Angeles (1997) 60 Cal.App.4th 606, the plaintiff was rollerblading on a pave bicycle path. A dirt trail and a paved path are clearly each a “trail” within the immunity statute. If Defendant’s reading of the statute was correct, parking lots would also be within trail immunity because they are critical for providing access to public property usable for recreational purposes.

Here, the subject stairs consisting of approximately four steps, appears to provide access from the ground level to the next level. In that sense it is more like a ramp. As in Treweek, the summary judgment papers are not clear about whether the stairs are an integral part of a “trail,” whether they are connected at either end to a path arguably constituting a “trail.” Defendant argues in reply that the stairs are part of a path, but the undisputed material facts to which Defendant cites in support of that argument are about Plaintiff going back and forth from the parking lot to the gymnasium via the stairs; they do not mention a path. Therefore, the Court cannot conclude that trail immunity applies to the stairs as a matter of law.

Design Immunity

City argues it is entitled to deisgn immunity. Whether design immunity applies is a quesiton of law. (Alvarez v. State (1999) 79 Cal.App.4th 720, 727.) For design immunity to apply, “the public entity ‘must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to the construction; and (3) substantial evidence supporting the reasonableness of the plan or design.’ [Citation.]” (Rodriguez v. Departmetn of Transportation (2018) 21 Cal.App.5th 947, 950.)

City contends the first element is met because Plaintiff alleges the design of the stairs caused her injuries. City states that although records of the design or approval are unavailable due to the passage of time, the City Engineer approved an application to erect the building at the Park and issued a certificate of occupancy, giving rise to the only plausible inference that the improvements at the Park, including the surrounding building and subject stairs, were reviewed and approved by one with the requisite discretionary authority. “A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval . . . Discretionary approval need not be established with testimony of the individual who approved the project.” (Gonzales, supra, 6 Cal.App.5th at p. 947.)

Finally, City argues the third element of design immunity is met because there is substantial evidence that the plan or design was reasonble because it was adopted by a reasonable legislative body or other body or employee. City argues the Department of Recreation and Parks relied on the Uniform Building Code as the applicable standard for the construction of improvements in its parks. Therefore, there is substantial evidence that the stairs in the Park complied with the 1949 and 1952 Uniform Building Codes. (See Thomson v. City of Glendale (1976) 61 Cal.App.4th 378, 385-386 [finding compliance with the applicable Uniform Building Code constituted substantial evidence of reasonableness].)

Plaintiff argues design immunity cannot be established because as City concedes, no plans exist for the stairs. The Court agrees City did not meet its initial burden of showing design immunity applies. Without plans for the stairs, it cannot be determined that there is a causal relationship between the plan or design and the accident or that the plan was approved prior to construction. That a certificate of occupancy was ultimately issued for the building and surrounding areas does not necessarily show that the subject stairs were approved and that its design is reasonable.

Dangerous Condition

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition or the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835.) A condition is not dangerous if, viewing the evidence most favorably to the plaintiff, the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code, § 830.2.)

City argues the stairs were not a dangerous condition of public property because plenty of people used them without tripping and the absence of a handrail, even if it would have prevented or moderated a fall, does not show an unreasonable risk of harm. (Darrach v. San Francisco County Medical Assn. (1953) 121 Cal.App.2d 362, 365 [“The absence of a handrail at steps used by the public does not itself indicate an unreasonable risk. Appellant does not cite any rule of law, and we do not know of any, which requires the outside steps of a building in public use always be provided with a handrail”].) Unless the configuration of stairs and lack of handrail created a substantial risk, it does not constitute a dangerous condition. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) Further, City contends that the lack of handrail was not the proximate cause of Plaintiff’s fall. Rather, Plaintiff was focused on carrying a coffee in one hand and a parcel under her arm and lost her balance when she “mis-stepped” the third step. The Court finds City has met its initial burden of showing the steps were not a dangerous condition that caused Plaintiff’s fall.

In opposition, Plaintiff and her expert, Mark J. Burns, focus on the 1948 Los Angeles City Building Code, which he says states, “Every exterior stairway shall have a handrail on the outer edge. Stairways more than four feet in width shall be provided with handrails on each side.” Plaintiff argues this establishes a violation of the Building Code and this violation was a proximate cause in her fall. Plaintiff testified at her deposition that when she was going to take the fourth step with her left foot, she hit the edge of the stairs and lost her balance. With her left hand, she tried to grab for a rail and there wasn’t any, so she lost her balance. (Plaintiff’s Additional Material Fact “AMF” No. 13.)

In Reply, City argues Burns’s declaration does not provide foundation for his opinions, and the Building Code cited by Burns does not apply to stairways that are unconnected to a building, like the stairway in this case. Regardless, even viewing the evidence in the light most favorable to Plaintiff—that there was a violation of the Building Code—Plaintiff has not shown the violation was a proximate cause of her fall. As stated, while a rail could have prevented or mitigated the fall, Plaintiff must show the lack of the rail created a substantial risk of harm that caused her fall. Here, Plaintiff testified that she lost her balance while going down the steps and that she was unable to regain her balance due to the lack of a handrail, not that the lack of handrail caused her to lose her balance. Further, it is undisputed that the stairs were in good repair, with no chips or cracks. (UMF No. 15.)

Accordingly, the Court finds Plaintiff has failed to show the lack of a hand rail, even if in violation of the Building Code, caused her fall and injuries. (See Hazelwood v. Gordon (1967) 253 Cal.App.2d 179, 180 [“Assuming arguendo that appellant’s evidence showed the stairway failed to meet statutory standards [of the applicable Los Angeles City Ordinances in the construction of the stairway], she did not sustain her burden on proving that such violations proximately caused her injuries”]; Holmes v. Moesser (1953) 120 Cal.App.2d 612, 614 [“the uncontradicted evidence discloses that the proximate cause of plaintiff’s . . . injury was the slipping of her foot off the step which caused her to fall and be injured and not the absence of a handrail on the stairway”]; Blodgett v. B.H. Dyas Co. (1935) 4 Cal.2d 511, 513 [“The evidence shows that the lack of the handrail was neither the proximate nor any cause of plaintiff’s fall. Any violation of the ordinance by the defendant would therefore be immaterial”].)

In addition, in her opposition, Plaintiff argues the treads of the steps were too deep, exceeding 14 inches, making the steps a dangerous condition. To back up this argument, she presents her expert Burns’s conclusion: “The design and construction of the subject stairway was inherently dangerous,” because “[n]umerous studies regarding safe stairway design (attached herein as Exhibit ‘2’), conclude that treads should not exceed 14” . . . .” The statement about the conclusion of the numerous studies and the two attached studies are hearsay, as Defendant objected. The studies and their conclusions about treads exceeding 14 inches are offered for the truth of the matter asserted, and Burns did not establish the reliability of the studies or that experts in his field of expertise rely on the attached studies as background information. (People v. Sanchez (2016) 63 Cal.4th 665.) Thus, Plaintiff has not presented admissible evidence that stair treads exceeding 14 inches are dangerous. The expert’s conclusion, without evidence supporting and explaining his conclusion, is not accorded much weight. (Bay Area Rapid Transit Dist. V. Superior Court (1996) 46 Cal.App.4th 476, 482 [“The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed].”)

In sum, Plaintiff did not establish a disputed material fact concerning the stairs as a dangerous condition causing Plaintiff’s accident.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.