Case Number: BC550755 Hearing Date: May 05, 2016 Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93

BEVERLY STICKNEY,

Plaintiff,

vs.

MALIBU SURF INVESTMENTS LP, et al.,

Defendants.
Case No.: BC550755

Hearing Date: May 5, 2016

Time: 1:30 p.m.

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT

Defendant MALIBU SURF INVESTMENTS LP’s Motion for Summary Judgment is DENIED.

BACKGROUND

This is a slip and all case. On 7/3/14, BEVERLY STICKNEY (“Plaintiff”) filed a complaint against MALIBU SURF INVESTMENTS, LP and LARRY BLIVAS (“Defendants”) for negligence and premises liability. She alleges that on 10/31/13, at 29747 Pacific Coast Highway, in Malibu, at an apartment complex, she fell down the stairs at defendants’ property and sustained personal injuries.

The Court has reviewed Defendants’ motion, Plaintiff’s opposition and Defendants’ reply along with their accompanying documents.

All Requests for Judicial Notice are granted.

All objections are overruled.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. CCP Section 437c(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.

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. CCP §437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1520. 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. 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 that cause of action or a defense thereto. 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.

DISCUSSION

Defendants Malibu Surf Investments, LP and Larry Blivas request summary judgment against plaintiff on the grounds that no triable issue of material fact exists and defendants are entitled to judgment as a matter of law.

As the court held in Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, 1619 (citation omitted):

“Premises liability is a form of negligence . . . and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.”

Accordingly, both causes of action in the Complaint require plaintiff to prove defendants were negligent.

The elements of a negligence claim are duty, breach of duty, causation, and damages. Merrill v. Navegar, Inc. (2001) 26 Cal. 4th 465, 477. The element of causation consists of actual cause and proximate cause. See Vasquez v. Residential Investments, Inc. (2004) 118 Cal. App. 4th 269, 288. California has adopted the “substantial factor” test for proving actual cause. Viner v. Sweet (2003) 30 Cal. 4th 1232, 1238. The Supreme Court has observed that the “substantial factor” test subsumes the “but for” test. Sandoval v. Bank of Am. (2002) 94 Cal. App. 4th 1378, 1384-85 (citation omitted). Proximate cause serves to limit a defendant’s liability based on whether the injury was reasonably foreseeable. Hardison v. Bushnell (1993) 18 Cal. App. 4th 22, 26. If the injury was not reasonably foreseeable, the defendant’s conduct will not be deemed the proximate cause. Id.

The court in Getchell v. Rogers Jewelry (2012) 203 Cal. App. 4th 381, 385 (citation omitted) held, “Generally speaking, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed.” Additionally, the court in
Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal. App. 4th 383, 388 (citation omitted) held that property owners are not liable for injuries caused by “minor, trivial, or insignificant defect[s]” on the property. The Cadam court further held: “Persons who maintain walkways—whether public or private—are not required to maintain them in absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” Id.

A property owner is not liable for damages caused by a minor, trivial, or insignificant defect in property. Coloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.

Defendants argue that no actionable defective or hazardous condition existed at the real property at which plaintiff claims to have suffered injury. Plaintiff could not state the cause of her accident and how it occurred, other than she fell.

Plaintiff does not dispute that she did not feel her foot catch on something. Defendant’s Separate Statement (“DSS”) 3. She did not feel she missed a step. DSS 4. She did not slip on something. DSS 5. She does not know if she tripped, slipped, or misstepped. DSS 7. Although plaintiff does recall where she landed, she does not recall where the “fall” actually began. DSS 8. She states that she recalls hitting a “few” stairs going down. DSS 11. See Stickney Decl.

Defendant presents the declaration of John Brault, who was retained as a compliance safety expert. Brault Decl., 1. He is an expert in reconstruction of premises liability accidents, including slip, trip, and fall accidents. Id., 2. He testifies that on 3/4/15 he went to the area where plaintiff alleges she fell. Id., 4. He measured the slip resistance of the stairway and determined that the slip resistance dry was 0.82 and wet was 0.73. The slip resistance of the subject stairway was adequate for the conditions. Id., 5. He performed light readings of the area during his inspection at 8:30 p.m. using a calibrated Extech light meter. The light readings ranged from 1.04 to 1.49 foot-candles which exceeds the required 1.0 foot-candles of light as stated in the 1964 Uniform Building Code section 3312(a), which was the relevant building code for this property. He opines that the lighting was adequate at the time of the accident. Id., 6. He also measured the handrail height in the area of the incident to be 33 to 34 inches, which is compliant with the 1964 Uniform Building Code section 3305(h). Id., 7. In his opinion, no dangerous condition exists at the property. Id., 8.

In opposition, plaintiff argues that the stairwell constituted a dangerous condition at the time of plaintiff’s fall because defendants failed to keep the stairwell reasonably safe. Plaintiff contends that defendants breached their duty because (1) the variation in several of the tread lengths grossly exceeded the 3/16” maximum in the 1958 Los Angeles County Building Code and (2) the lighting was nonfunctional at the time she fell, leaving the stairway dark and difficult to see.

According to Brad Avrit, a licensed civil engineer, who has conducted investigations and analyzed hundreds of stairway incidents, he opines that the subject area violated several provisions of the applicable code and as such constituted a dangerous condition at the time of the incident. Avrit Decl., 7. He states that the property was constructed in 1962/63, when Malibu was not yet incorporated as a city and thus, the 1958 LA County Building Code had applicability to construction projects, including the subject stairway. Based on the measurements taken at the site inspection, the stairway violated several provisions. The tread lengths between the 4th and 5th treads from the top had a variation of 9/16”—three times the maximum allowable variation of 3/16”—and the riser heights between the 5th and 6th risers from the top varied 7/8”—more than four times greater than the maximum allowable variation of 3/16”. These excessive dimensional variations constituted direct violations of the applicable building code. Id., 7.

Plaintiff cites to Hawke v. Burns (1956) 140 Cal. App. 2d 158, 164, that whether a variance could be held to be the proximate cause of the accident was a factual question for a jury to resolve.

As to the lighting, plaintiff argues that it was woefully insufficient. Plaintiff testified that as she was walking down the stairs, she noticed the stairwells exceptionally dark. Stickney Depo., at 69. See also Plaintiff’s Request for Judicial Notice, Exhs. A-G (regarding sunset times, daylight savings time, moon phases). Avrit states that the low level of illumination at night on the date of the incident would have reduced the ability of persons to perceive the stairway hazards. Avrit Decl., 7. Plaintiff argues that defendants’ expert’s readings were taken with the light at the top of the stairway functioning and on. Yet plaintiff testified that the sun had set, the relevant light was off, and the moon had not risen. If the light was off, defendants’ light readings will be altered, and the stairway would no longer be code compliant in its lighting. Avrit states that based on his review of astronomical data from the date of incident, there would have been no natural illumination due to the moon being below the horizon. Id.

Plaintiff cites to Beeston v. Lampasona (1960) 182 Cal. App. 2d 519, 522, where the plaintiff was asked, “What happened? Just tell us what happened,” to which the plaintiff responded, “I just fell down the stairs.” The court stated, “[t]he fact that the steps were not defective or unsafe in and of themselves is a false quantity. The negligence alleged and found was the failure to provide lighting.” Plaintiff also contends that in the hospital shortly after the accident, she told her daughter she fell because it was dark, she could not seek, and she missed a step.

Thus, Avrit opines that the dimensions of the stairway and reduced lighting played a causal part in the incident. Avrit Decl., 8. The lack of uniformity (and excessive variation) between the risers and treads of the subject stairway would have prevented plaintiff from getting into a rhythm while descending and, as a result, likely cause her to misstep and go off the edge of the fifth tread, particularly where this step had a tread length of 9/16” shorter than the prior (fourth) step. Moreover, the grossly inconsistent stairway dimensions would have made any possible chance of fall recovery unlikely. Furthermore, given that there was minimal illumination on the stairway at the time of the incident, it would have reduced the ability of stairway user to easily recognize the step nosings and increase the likelihood of a fall incident occurring. Id.

Plaintiff also argues that defendants knew or should have known about these conditions and the dangerous nature of the stairway at night. Had they performed a reasonable safety inspection, the unsafe condition of the stairway would have been readily apparent. Id., 9. Further, the cost to eliminate the dangerous condition would have been minimal. Id., 10.

In reply, defendants argue that plaintiff has not offered any relevant evidence in dispute. The relevant facts remain the same: plaintiff has failed to produce any evidence to support her cause of action; her only argument is mere conjecture; there is no evidence as to where plaintiff fell or how she fell; there is no evidence that a dangerous or unsafe condition caused plaintiff to fall. Defendants also argue that if as plaintiff contends the sunset that evening was 6:05 p.m., she fell during “civil twilight,” which occurs when the sun is less than six degrees below the horizon and is the brightest form of twilight. There is enough natural sunlight during this period that artificial light may not be required to carry out outdoor activities. Plaintiff stated she was able to see the stairway and that the flight of stairs was not “as dark” as the stairway above.

Defendants also reiterate Brault’s opinion, that a variation in 1958 is not considered a dangerous condition in today’s standards and although technically it may not be code compliant it is not a dangerous condition.

Defendants also reiterate their argument that plaintiff has failed to establish the burden of proof on causation. Plaintiff did not herself declare that she could not see or she missed a step, as now recalled by her daughter.

The Court finds that plaintiff has presented sufficient evidence to raise a triable issue of material fact as to breach of a duty and causation.

Accordingly, the motion is DENIED.

Plaintiff Beverly Stickney is ordered to provide notice of this ruling.

DATED: May 5, 2016

_____________________________
Howard L. Halm
Judge of the Superior Court