Case Number: BC620084 Hearing Date: May 22, 2018 Dept: 2

Defendant’s Motion for Summary Judgment, or in the alternative, for Summary Adjudication, filed on 11/7/17, is DENIED. Defendant has not established that she is entitled to judgment on the complaint or adjudication of issues based on the material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

Objections

Plaintiff’s objections to the Declaration of Swathi Kode (Defendant’s Biomechanical Expert) #1. SUSTAIN.

Declaration of Evelyne Buyse.

#2. Overrule.

#3-8 Overrule.

Duty.

Premises liability is a form of negligence, which involves the duty of a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.

Defendant has not established that she does not owe a duty to Plaintiff based on the lack of actual or constructive notice of the alleged dangerous condition.

Where the landowner creates the condition, knowledge of the dangerous condition is imputed to the landowner. Under those circumstances, the landowner cannot assert lack of notice or knowledge of the dangerous condition. Hatfield v. Levy Bros. (1941) 18 Cal. 2d 798, 806.

Defendant admits that after she bought her home in 2010, she had the steps with a railing and a driveway constructed adjacent to the driveway to accommodate her physical limitations. UF 3.

Defendant admits that the steps have not changed since their installation in 2010. UF 4. Hatfield at 806. Plaintiff’s evidence adds that Defendant decided to use the same material used on the adjacent driveway for construction of the staircase because she liked it. Plaintiff’s Additional Facts (PAF) 30-31. Therefore, as in Hatfield, since Defendant admittedly created the condition of which Plaintiff claims, she cannot assert lack of notice of knowledge of the dangerous condition.

Additionally, the fact that neither Defendant, her housekeeper, nor Plaintiff’s driver, Ms. Fontaine, tripped on the steps or was aware of any difficulty with the steps does not absolve Defendant of liability. First, the awareness of Ms. Fontaine or Defendant’s housekeeper with respect to the steps is irrelevant, since it is the landowner’s notice or knowledge of the condition that is at issue. Facts 16, 17, and 18 are irrelevant.

Lack of prior accidents on the steps does not excuse liability if the dangerous condition of the location should reasonably have been known by Defendant. Henderson v. McGill (1963) 222 Cal.App.2d 256, 265. Again, under Hatfield, knowledge of the dangerous condition is imputed if the owner creates it.

Defendant correctly argues that where the condition is open and obvious, she does not owe a duty to warn, since the condition itself constitutes a warning. Matherne v. Los Feliz Theater (1942) 53 Cal.App.2d 660, 666-667

Whether a condition is “open and obvious” is ordinarily a question of fact. Henderson v. McGill (1963) 222 Cal.App.2d 256, 260. Regardless, it remains a triable issue of fact as to whether the condition was “open and obvious,” which precludes summary adjudication.

Plaintiff alleges that the stairs and driveway were dangerous because they were made of uniform stone, making it impossible to differentiate the stairs from the driveway. Motion, Ex. A, FAC ¶ 8. Plaintiff alleges there was an increase of several inches in the height from the driveway to the steps, and there was no handrail. Id. Therefore, the material issue raised by the pleading is that the defect (the height differentiation between the driveway to the steps) was concealed because of the uniform stonework. Defendant’s material facts do not address the concealed nature of the defect.

In ruling on a summary judgment motion, the material issues are limited to the allegations of the complaint. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. The complaint “measures the materiality of the facts tendered in a Defendant’s challenge to the Plaintiff’s cause of action.” Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848.

There is no dispute that at the time of the incident, Plaintiff was driven to Defendant’s house by Rayjean Fontaine. UF 9. Ms. Fontaine parked Plaintiff’s car in the driveway parallel to the subject steps when they arrived. UF 10. Plaintiff exited the front passenger side door of the vehicle. UF 12. She proceeded in the direction leading to the steps when she fell. UF 13.

Defendant argues that Defendant owned the home for four years without incident or injury. Motion, 7:25-26. This is irrelevant to the issue of whether the alleged dangerous condition was open and obvious to a person coming onto the property.

Even if the condition was “open and obvious” this would obviate the duty to warn. Defendant may still be liable even if the condition is obvious if it is foreseeable that the danger may cause injury despite its obviousness. Under those conditions, Defendant has a duty to remedy the condition. Martinez v. Chippewa Enterprises, Inc., (2004) 121 Cal. App. 4th 1179, 1184.

Defendant has not negated this basis for a duty, despite the alleged “open and obvious” nature of the condition. Accordingly the motion is DENIED with respect to the whether Defendant owed a duty.

Negligence per se.

Defendant argues that this theory of liability fails because a permit was not required to build the stairs and the California Building Code does not apply to the construction of exterior steps since they are a means of egress of residential property. Separate Statement, 5:9-16.

Negligence per se is an evidentiary doctrine that presumes negligence based on the violation of a statute. Quiroz v. Seventh Ave. Center (2006)140 Cal. App. 4th 1256, 1285.

Four elements are required to establish a presumption of negligence.

“(1) the defendant violated a statute, ordinance, or regulation of a public entity;

(2) the violation proximately caused death or injury to person or property;

(3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and

(4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Quiroz at 1285.

Plaintiff alleges that the 2007 California Building Code were in effect at the time of the incident. Plaintiff expressly cites the following regulations violated by Defendant:

CBC 1009.3.2 and 1009.3.3 in that the steps were not uniform in height and did not have distinctive markings, and were camouflaged. FAC ¶ 14.

CBC 3401.2 in that the ingress and egress to the steps was unsafe, the driveway and stairs were made of uniform stone, making it impossible to differentiate the stairs from the driveway, that there was an increase in height from the driveway to the stairs, and there was no handrail. FAC ¶ 15.

Defendant contends that CBC 1001.3 does not apply since it states that means of egress must be maintained according to the Fire Code, and further that the Fire Code excepts from its requirements detached one- and two-family dwellings. Chapter 10 California Building Code § 1001.3 (2013); Chapter 10, California Fire Code § 1001.1 (2013)

This argument avoids the allegations of the FAC which assert that the construction of the steps violated the Building Code. Chapter 10, Section 1001 of the Building Code, expressly applies to the design, construction and arrangement of means of egress. Chapter 10, California Building Code, § 1001.1 (2013).

Defendant admits that she had steps constructed when she bought the home in 2010. UF 22. Thus, Defendant’s argument, which leads to the less restrictive Residential Code by way of the Fire Code, rather than the Building Code is based on an erroneous assumption that the claim is based on a maintenance claim, when it is based on the design, construction, and arrangement of the steps. Defendant’s material fact that the steps are not a part of the home or its structures is not relevant. UF 26. This fact relies on Defendant’s interpretation that the Fire Code applies, and not the Building Code.

Defendant improperly raises new issues in the Reply brief, wherein Defendant argues the absence of a dangerous condition and the lack of evidence showing what caused Plaintiff to fall since Plaintiff could not testify exactly which step she tripped over. Reply, 2:2, 4:8, 4:21-20, 5:7.

The moving papers were limited to the lack of duty arising from the absence of actual or constructive notice, that the condition was “open and obvious,” and that the Codes on which Plaintiff relies for the negligence per se claim do not apply. The moving papers assumed the existence of a dangerous condition. Causation was not raised in the moving papers.

New arguments made in reply will not be considered as it deprives the Plaintiff of the opportunity to respond or would require additional delays and effort for Plaintiff to properly respond to new issues. Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn.3.

Moving party is ordered to give notice.