Case Number: BC511276    Hearing Date: November 07, 2014    Dept: 91

Motion by Defendant, Omar Velasco for Summary Judgment, or Alternatively for Summary Adjudication, filed on 8/14/14 is DENIED. Defendant has not met his burden of establishing he is entitled to judgment in his favor based on the material facts proffered, many of which are irrelevant, unproved or ultimately in dispute. Cal Code Civ Procedure § 437c(p)(2).

To establish a claim for premises liability and negligence for a dangerous condition, Plaintiff must show that the landowner/possessor had actual or constructive notice of a dangerous condition, or have been able to discover the condition through the exercise of ordinary care. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001).

The motion is DENIED because Defendant did not fully negate all of Plaintiff’s theories of liability. Defendant argues that the sole allegation in the complaint was dangerous condition of the slippery tile floor. However, Plaintiff’s second theory is that Defendant Bertha Velasco, who was supposed to be holding the ladder, let the ladder go, causing the ladder and Plaintiff to fall. Plaintiff argues that Omar is liable because Bertha was an ostensible agent and because Omar is also liable to guests of his tenant. UF 6 is disputed. See evidence cited therein. Additionally, Defendant has not proffered material facts to negate the alleged agency relationship or Bertha’s status as a “tenant” for which liability is imposed.

Defendant has not established the absence of a dangerous condition. Defendant’s expert’s declaration is irrelevant. Mr. Brault opines that the tile floor surface was slip resistant and that people “can easily walk safely on surfaces with a co-efficient of friction in this range.” Brault decl ¶ 10.

Plaintiff did not fall while walking. It is undisputed that Plaintiff fell from a ladder when while attempting to hang a picture for Defendant. UF 2. Therefore, Plaintiff’s objection to Mr. Brault’s declaration should be SUSTAINED as it is irrelevant. Facts 9-12 which depend on Mr. Brault’s declaration are not material given how the accident occurred. UF 2.

Defendant improperly submits a supplemental declaration of Mr. Brault who explains further that the testing he conducted measured slipperiness regardless of activity being performed. Brault, ¶ 8. He offers additional facts with respect to proper ladder incline. This is new evidence that should not be considered, since it was untimely filed with the Reply brief, and Plaintiff has not had an opportunity to respond to these new facts. San Diego Water Craft v. Wells Fargo 102 Cal. App. 4th 308, 313 (Cal. App. 4th Dist. 2002).

Even if the court considers the additional declaration, Plaintiff’s expert (Mr. Avrit) disputes Mr. Brault’s opinion, finding that the floor was dangerous because the extension ladder slid easily across the surface, and further disputes Mr. Brault’s opinion that co-efficient of friction testing establishes there was no dangerous condition. Mr. Avrit opines that co-efficient of friction testing measures heel strike of a person’s walking gait, not the dynamic of a loaded ladder resting against a wall at an angle. Avrit ¶ 10. This evidence disputes Facts 9-11, purporting to establish that the floor was not unreasonably dangerous.

The motion is also DENIED because Defendant’s proffered material facts address only actual notice. Liability is also imposed where there is constructive knowledge of the condition or where the owner must “have been able by the exercise of ordinary care to discover the condition …”
Hatfield v. Levy Bros.,18 Cal. 2d 798, 806(Cal.1941)

Facts 15 – 19 attempt to establish that Defendant did not have knowledge of prior trip/slip and falls. These facts do not address other theories of notice nor do the facts establish that Defendant did exercise ordinary care to discover the condition. The material facts also do not address Plaintiff’s other theories of liability based on Defendant’s relationship with Bertha and whether Bertha was an ostensible agent. The court cannot adjudicate parts of a cause of action since “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” CCP § 437c(f)(1).