Case Number: SC118000 Hearing Date: May 19, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LUCIO D. GARCIA,
Plaintiff(s),
vs.
WASHINGTON 26 PROPERTIES, LLC, et al.,
Defendant(s).

Case No.: SC118000

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #25
May 19, 2014

Defendant, Washington 26 Properties, LLC’s Motion for Summary Judgment is Denied.

1. Allegations of the Complaint
Plaintiff, Lucio D. Garcia filed this action against Defendant, Washington 26 Properties, LLC for damages arising out of a slip and fall. Plaintiff was moving out of his apartment when he slipped and fell on something on the stairs. Plaintiff’s operative First Amended Complaint, filed on 5/24/13, alleges:
In specific, Plaintiff slipped and fell on a dirty slippery substance and dangerous condition that was located on a stair of the staircase at his apartment located at 10307-10309 Washington Boulevard, Los Angeles, California 90232. The dirty slippery substance and dangerous condition was a condition that had been there for a significant period of time. Plaintiff slipped and fell down the entire set of stairs as he descended from the 2nd floor to the street level as a direct result of the slippery substance and dangerous condition. …

2. Motion for Summary Judgment
Defendant moves for summary judgment, contending it lacked actual or constructive notice of the dangerous condition on its property. The following issues are presented by way of the motion:
• Did Defendant meet its initial burden to establish lack of actual and/or constructive notice of the dangerous condition?
• Did Plaintiff raise triable issues of material fact because of notice of the peeling tape on the stairs?
• Did Plaintiff raise triable issues of material fact because of washing the subject stairs?
• Did Plaintiff raise triable issues of material fact because of insufficient inspection of the stairs?

a. Law Regarding Dangerous Condition of Property
¿The owner of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.¿ (BAJI No. 8.20.) The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it. (Girvetz v. Boys¿ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

¿¿It is generally a question of fact for the jury as to whether, under all the circumstances, the defective condition existed long enough so that a reasonable man exercising reasonable care would have discovered it.¿¿ (Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 92; citing Louie v. Hagstrom¿s Food Stores, Inc. (1947) 81 Cal. App. 2d 601.) In the Louie case, the plaintiff slipped in a pool of syrup that had been spilled on the floor of defendant¿s grocery store. The evidence was that no employee of defendant had examined this area for from 15 to 25 minutes before the accident. The court held that whether the dangerous condition existed long enough so that a person exercising ordinary care would have discovered it was a question for the jury. (Id.)

¿The requirement of actual or constructive knowledge is merely a means of applying the general rule stated above that the proprietor may be liable if he knew or by the exercise of reasonable care could have discovered the dangerous condition, and it does not alter the basic duty to use ordinary care under all the circumstances. [¿] It obviously follows that the owner of a store must make reasonable inspections of such portions of his premises as are open to his customers, and, in this connection, it has been held that evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it. [Citations.] As declared in these cases, it is ordinarily a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered by an owner who exercised reasonable care.¿ (Bridgeman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446-447.)

b. Evidentiary Objections
Both parties filed evidentiary objections with the opposition and reply papers. A ruling on the objections is necessary to determine the outcome of the motion. The Court rules on the objections as follows:
Plaintiff’s objection to the Declaration of Suroor is overruled.
Defendant’s objections are overruled.

c. Moving Burden
Defendant has the initial burden to establish it did not know of the subject condition and could not have reasonably discovered the subject condition. Defendant establishes that Emad Rizk, a tenant in the building, cleans the stairs by sweeping them and then using a dry cloth on them; she does this once a week in exchange for a reduction in her rent. Declaration of Suroor (property manager), ¶4. Defendant also establishes that the stairs are inspected on a monthly basis by a handyman. Declaration of Suroor, ¶6.

Defendant submits the deposition testimony of Plaintiff to support its contention that the slippery substance had not been present a few hours earlier in the day. The Court has reviewed the subject testimony and, indeed, Plaintiff did testify that he saw something wet on the stairs for a fraction of a second before he fell, and also that whatever the wet substance was hadn’t been there a few hours earlier when he was moving.

Defendant provides evidence that Plaintiff slipped on a piece of anti-skid tape that was on top of the slippery substance on the stairs. Fact 11.

The Court finds the foregoing is sufficient to meet the moving burden on summary judgment. The burden therefore shifts to Plaintiff to raise a triable issue of material fact.

d. Triable Issues of Material Fact
Plaintiff adequately raises triable issues of material fact in numerous ways. First, Plaintiff submits his own declaration, wherein he states that Sherif Antoon, Defendant’s CEO, told him an employee had washed the stairs shortly (approximately one hour, which would be between the time of Plaintiff’s prior trip down the stairs and the time of his fall – see additional fact 20) before Plaintiff fell, and also that Antoon admitted he had not handled problems with peeling tape on the stairs, which would be compounded when the stairs were washed and wet. See disputed facts 3, 10, and 12.

Defendant argues that Plaintiff’s declaration is hearsay. The evidence is, however, subject to the admission against interest exception. Defendant also argues that Plaintiff has not produced cell phone records showing that the conversation took place. Defendant does not establish that attempts to obtain those records have been made, and does not establish the discovery history of the case in this regard. Defendant also argues that Suroor was the property manager, and that there is no reason Antoon, as CEO of Defendant, would know whether and when the property was washed. These are factual issues for trial; the Court cannot, at the summary judgment stage, determine that Antoon lacked knowledge of the condition of the property and/or lacked the authority to speak about what had happened at the property prior to the fall. Notably, Plaintiff provides evidence that Antoon was the person to whom he had complained about problems with the tape on the stairs prior to his fall. See additional facts 13-15.

Additionally, Plaintiff provides the expert Declaration of Robert Loscalzo, who opines that the lack of lighting in the staircase contributed to the fall, and that the state of disrepair of the stairs was a contributing factor. Defendant argues that the Declaration of Lascalzo should not be considered because no inspection of the property was authorized and therefore any inspection was essentially trespassing. Defendant presents no authority for the position that the fruits of an unauthorized inspection must be excluded as evidence; absent such authority, the Court has considered the Declaration of Lascalzo.

e. Disposition
Triable issues of material fact exist concerning the cause of the fall, and therefore the motion for summary judgment is denied.

Dated this 18th day of May, 2014

Hon. Elia Weinbach
Judge of the Superior Court