Case Name: ??? Barbara Joan Antrobus v. Vallco International Shopping Center, LLC,
et al.
Case No.:??????? 2014-1-CV-268988
Currently before the Court is defendant Vallco Shopping Mall, LLC?s (?VSM?) motion for summary judgment or, in the alternative, summary adjudication of the first cause of action in the complaint of plaintiff Barbara Joan Antrobus (?Plaintiff?).
- Factual and Procedural Background
This is an action for premises liability. In her complaint, Plaintiff alleges the following: On August 24, 2013, Plaintiff was shopping at a mall owned by VSM, where she ?approached a set of stairs that was insufficiently distinguished from the level surface of the walkway.? (Compl., ? 6.) Due to the design of the stairway, inadequate lighting, and the lack of signage or warnings, Plaintiff missed a step and fell, causing her to suffer personal injuries. (Compl., ?? 6-7.) The complaint asserts one cause of action for premises liability.
On March 10, 2016, VSM filed the instant motion for summary judgment or, in the alternative, summary adjudication. On May 13, 2016, Plaintiff filed her opposition to the motion, in which she requests monetary sanctions under Code of Civil Procedure section 437c, subdivision (j). VSM filed its reply on May 23, 2016.
- Summary of Evidence Submitted
- VSM?s Evidence
In support of its motion, VSM presents the following relevant evidence: Within an hour of Plaintiff?s fall, VSM employees determined that all lights were operating properly near the stairway where she fell. (VSM?s Separate Statement of Undisputed Material Fact (?UMF?) No. 8.) VSM?s expert, Mark Rieser, a licensed general engineer and building contractor, inspected the stairway and found that it complied with the California Building Code. (UMF No. 6.) While VSM has received prior reports of falls by patrons at or near the same location, those patrons did not complain ?of poor lighting and/or the inability to differentiate between the individual steps & floor.? (Rhode Decl., ? 5.) For those patrons who do not wish to use the stairway, there is a nearby ramp. (UMF No. 7.) At deposition, Plaintiff admitted that she was not wearing corrective lenses at the time of the incident and used reading glasses. (UMF Nos. 9-10.)? In addition, she was unable to determine the number of steps on the stairway based on a photograph provided to her.? (UMF No. 9.)
- Plaintiff?s Evidence
In opposition to the motion, Plaintiff provides the following relevant evidence: On August 29, 2013, Plaintiff was holding the railing with her right hand while descending the stairway at issue. (Plaintiff?s UMF No. 12.) While looking down at the stairway, she misjudged her step because the last rung of the stairway and the floor ?look[ed] like it blends all together.? (Plaintiff?s UMF No. 14.) Plaintiff?s vision at the time of the incident was normal, she does not wear corrective lenses, and did not need such lenses to see the mall floor or the stairway. (Plaintiff?s UMF No. 18.) For reading or examining photographs, Plaintiff sometimes uses non-prescription reading glasses. (Plaintiff?s UMF No. 19.) Based on the incident reports VSM provided to Plaintiff in discovery, at least four other patrons at the shopping center have fallen after misjudging the same step between 2010 and 2014. (Plaintiff?s UMF No. 20.)
III. Evidentiary Objections
Both parties filed objections to the evidence presented in support of, and in opposition to, VSM?s motion. These objections do not comply with the California Rules of Court because neither party submitted a proposed order. (See Cal. Rules of Court, rule 3.1354 (c).) Accordingly, Plaintiff and VSM are not entitled to a ruling on their objections. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [finding that a court has no obligation to rule on written objections that do not comply with California Rules of Court, rule 3.1354].)
- Discussion
VSM contends that its motion should be granted because Plaintiff cannot establish that it breached its duty of care or that it caused her injuries.
- Breach of the Duty of Care
Premises liability is a form of negligence. (See Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) ?Owners are not strictly liable for injuries that occur on their property. ?(Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012, 1022.) ?Rather, ?[t]he owner of [a] 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.? ?(Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Whether a property owner breached its duty of care is ordinarily a question of fact for the jury?s determination. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) As such, a motion for summary judgment based on the absence of a breach of the duty of care should be granted only where no reasonable juror could find such a breach from the evidence presented. (Federico v. Sup. Ct. (1997) 59 Cal.App.4th 1207, 1214.)
VSM first argues that it did not breach its duty of care as a matter of law because the stairway at issue complied with the relevant building codes. This argument is not well-taken. While compliance with applicable governmental safety regulations is relevant to show due care, it does not establish, in and of itself, that the owner utilized due care under the circumstances. (Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 901 [stating that ?one may act in strict conformity with the terms of such enactments and yet not exercise the amount of care which is required under the circumstances?]; see also Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 31 [same]; Wilson v. J.P. Allen Co. (C.D. Cal. 2014) 57 F.Supp.3d 1249, 1254 [stating that compliance with all building code requirements, in and of itself, does not entitle a defendant to summary judgment].) Accordingly, this evidence is insufficient to meet VSM?s initial burden on summary judgment.
Next, VSM asserts that Plaintiff cannot demonstrate that the property was defective. VSM, however, provides no evidence in support of this contention. ?Summary judgment law in this state ? continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.? (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) Since VSM merely points out that Plaintiff has no evidence, it fails to meet its initial burden.
Finally, VSM claims that summary judgment must be granted because Plaintiff does not provide an expert declaration in opposition to the motion. This argument lacks merit. ?Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.? (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) Since VSM does not meet its initial burden of ?presenting evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not? (Aguilar, supra, 25 Cal.4th at p. 854), Plaintiff need not produce any evidence, let alone an opposing expert declaration, with respect to VSM?s alleged breach of its duty of care. Accordingly, summary judgment is not warranted on this basis.
- Causation
?In a negligence action the plaintiff must show the defendant?s act or omission (breach of duty) was a cause of the plaintiff?s injury.? (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288.) California has adopted the ?substantial factor? test for causation. (Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33.) As such, ?[a] defendant?s negligent conduct may combine with another factor to cause harm; if a defendant?s negligence was a substantial factor in causing the plaintiff?s harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff?s harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct. Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.? (Ibid., internal citations omitted.)
VSM asserts that Plaintiff?s physical inability to negotiate the stairway caused her injuries, not its conduct or the condition of its property. Specifically, it contends that Plaintiff fell because she has poor vision. In support of this contention, VSM relies on the declaration of its counsel, who observed that Plaintiff had difficulty determining the number of steps in a photograph of the stairway presented to her at deposition. (UMF No. 9.) VSM?s argument is not well-taken on several grounds. First, VSM provides no basis for its counsel?s conclusion that Plaintiff?s difficulty interpreting a photograph establishes that her vision was a substantial factor in causing the incident in question. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [stating that an opinion unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion has no evidentiary value].) Second, Plaintiff submits evidence indicating that her vision at the time of the accident was normal and she did not need corrective lenses to see the floor or the steps. (Antrobus Decl., ? 4.) As such, there is a triable issue of material fact concerning whether Plaintiff?s vision was a substantial factor in causing her fall. Finally, evidence that Plaintiff?s vision may have contributed to her fall does not support VSM?s ultimate conclusion that the condition of VSM?s property did not contribute to her fall. As previously noted, ?a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff?s harm.? (Lawrence, supra, 231 Cal.App.4th at p. 33.) Since VSM does not negate the possibility that both Plaintiff?s vision and the condition of the stairway could constitute substantial factors in causing the incident, VSM does not meet its initial burden of demonstrating a lack of causation.
- Conclusion
In light of the foregoing, VSM?s motion for summary judgment or, in the alternative, summary adjudication of the first cause of action is DENIED.
- Request for Sanctions
Plaintiff requests $11,250 in sanctions against VSM under Code of Civil Procedure section 437c, subdivision (j), which provides that ?[i]f the court determines at any time that any of the affidavits are presented in bad faith or solely for the purposes of delay, the court must order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur.? In support of her request, Plaintiff submits the declaration of her counsel, John Crowley, who states that the amount sought consists entirely of the reasonable attorney?s fees he incurred in researching and preparing the opposition to the instant motion for summary judgment. (Crowley Decl., ? 8.)
Plaintiff contends that the declaration of VSM?s general manager, Mike Rhode, was filed in bad faith because it is clearly inconsistent with VSM?s records. As relevant here, Mr. Rhode declares the following: ?Vallco Shopping Mall, LLC has reports of previous falls near court 5. None of the previous falls had complaints of poor lighting and/or an inability to differentiate between the individual steps & floor.? (Rhode Decl., ? 5.) Plaintiff claims that this statement is ?obviously deceitful? because VSM?s records indicate that four other patrons misjudged the last step and one patron after the instant accident took place tripped due to the change of the color of the steps. (Plaintiff?s UMF No. 20.) This argument lacks merit. First, the records submitted by Plaintiff do not include any complaint concerning the lighting. Accordingly, Plaintiff fails to demonstrate that this portion of the declaration is ?obviously deceitful.? Second, the only complaint concerning the inability to differentiate between the individual steps and the floor took place on October 15, 2014, more than a year after Plaintiff?s fall. As such, Mr. Rhode?s statement that ?[n]one of the previous falls had complaints of ? an inability to differentiate between the individual steps & floor? is consistent with VSM?s records. Accordingly, Plaintiff fails to demonstrate that VSM filed the declaration of Mike Rhode in bad faith.
Even if Plaintiff could establish that VSM filed the declaration in bad faith, the ?reasonable expenses? recoverable as a sanction pursuant to Code of Civil Procedure section 437c, subdivision (j) do not include attorney?s fees. (Collins v. State Dept. of Transp. (2003) 114 Cal.App.4th 859, 862 [stating that ?section 437c does not authorize an award of attorney?s fees as a sanction?].) Since Plaintiff?s request only seeks reimbursement of the attorney?s fees incurred in opposing the instant motion, the Court could not grant her request for sanctions.
In light of the foregoing, Plaintiff?s request for monetary sanctions is DENIED.