Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa H. Cole, Judge, Los Angeles County Super. Ct. No. SC092216
Mann & Mann and Jonathan I. Mann for Plaintiff and Appellant.
Booth, Mitchel & Strange and Seth W. Whitaker for Defendants and Respondents.
CHANEY, J.
Plaintiff Roberta Leighton sustained injuries when she tripped and fell in the dark in her neighbor’s driveway. She filed this negligence action against the property owners, alleging they failed to maintain the driveway and that she “tripped and fell over [a] dis-repaired area.” Defendants moved for summary judgment on the ground that plaintiff could not identify the dangerous condition on which she bases her claim. Plaintiff responded with evidence that upon visiting the site of the accident in daylight she was able to identify an eroded portion of the driveway as the cause of her fall. The trial court found plaintiff’s evidence to be speculative, determined she could not identify the cause of her fall, and granted defendants’ motion for summary judgment. Based on our independent review, we disagree with the trial court’s assessment of plaintiff’s evidence. Accordingly, we reverse the judgment.
BACKGROUND
We view the evidence admitted in connection with the summary judgment motion in the light most favorable to plaintiff as the losing party, accepting as true the facts and reasonable inferences supported by plaintiff’s evidence and defendant’s undisputed evidence. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; see Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1125.)
Defendants own adjacent residences, the driveways of which adjoin lengthwise to form a doublewide strip (hereafter the driveway). Plaintiff Roberta Leighton was a tenant in one residence. Steven Bettencourt, her property manager, resided at the other. Three permanent features existed upon or adjacent to the driveway: A Department of Water and Power (DWP) utility vault covered by a flush metal plate, with some erosion in the surrounding asphalt; a six-inch-high planter box; and the curb at the street.
On the evening of November 16, 2006, plaintiff walked down the driveway on her way to the mailbox. It was dark, the driveway was unlit, and plaintiff could not see. Plaintiff tripped over something and fell, dislocating her elbow. She picked herself up and walked to Mr. Bettencourt’s residence. From there, she went to the hospital.
Plaintiff filed this action against the owners, asserting two theories of liability—framed as two separate causes of action—for negligence and premises liability.
Defendants moved for summary judgment, arguing plaintiff could not identify the cause of her fall, i.e., the premises defect, or even that the cause was external. In their separate statement they asserted eight facts: (1) Plaintiff was defendants’ tenant; (2) she fell on defendants’ driveway; (3) when the incident occurred, she did not see any condition that caused her to fall; (4) that night, she told Bettencourt she did not know what caused the fall; (5) Bettencourt inspected the driveway that night and saw nothing he could identify as the cause of the fall; (6) plaintiff and Bettencourt looked at the driveway the next day and, “while they have some theories as to the cause of the fall[,] neither of them knows what happened”; (7) Bettencourt “conceded” the theories were speculation; and (8) defendants had no complaints of any unsafe conditions from either plaintiff or Bettencourt prior to the incident. Plaintiff disputed only facts 4 and 6.
In disputing fact 4—that on the night of the accident she told Bettencourt she did not know what caused the fall—plaintiff relies on her declaration. However, in her declaration she admits that on the night of the accident she did not know what caused her to fall, contending only that she did not “discuss any theories” with Bettencourt the next day. Fact 4 thus stands undisputed.
Defendants supported fact 6 by citing to Bettencourt’s deposition testimony. He testified in pertinent part as follows:
“Q: While you were out there together on the following day—[a]nd this was daylight, right?
A: Yes.
Q: —did she say anything about where she thought she fell?
A: One of the three mentioned places.
Q: Either the curb or the planter?
A: Or the plate.
Q: Or the plate. But she wasn’t sure?
A: I think she had nixed the idea of the planter because you would have known if you fell over the planter. The curb would have thrown her into the street. And, therefore, she looked at the next obvious possibility, which was the only thing left, which was the dip at the asphalt by the DWP plate.
Q: Was this logic verbalized between the two of you? The curb, you’d be thrown into the street; the planter, you’d know it because it was so high?
A: Yes, I believe so.”
In opposition, plaintiff argued that although on the night of the accident she did not know what had caused her to fall, she returned to the site two or three days later and determined she had fallen over the eroded portion of the driveway next to the DWP plate. She supported the assertion with reference to her deposition testimony and her declaration.
Plaintiff testified that two or three days after the accident she visited the site and “concluded” she lost her footing “in the erosion, the divot,” by the DWP plate. When asked “what about the circumstances led you to conclude that that was the area of your fall?”, she replied, “Because it was the only thing in the proximity of where I fell that could have caused that.” She identified the proximity of the fall with reference to a car and truck parked on the street, testifying that “when I picked myself up to see if I could stand and walk, I knew my proximity to where the truck and the car was.” (Defendants argue the trial court sustained their objection to this portion of plaintiff’s testimony. No such objection or ruling appears in the record.)
In her declaration in opposition to defendants’ motion for summary judgment, plaintiff stated, “when I returned to the accident site two days later, I saw and knew what caused me to fall. It was the dangerous eroded part of the driveway next to the DWP plate as I indicated in my deposition....” However, the trial court sustained defendants’ objection to the declaration, which ruling plaintiff has not challenged.
Plaintiff denied visiting the driveway with Bettencourt the day after the accident or discussing with him her theory as to the cause of the fall.
The trial court granted defendants’ motion for summary judgment, finding no “reliable indication of where the fall occurred,” and entered judgment for defendants. Plaintiff appealed.
DISCUSSION
“A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.] We review the record and the determination of the trial court de novo. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002–1003.) If the defendant does not meet its initial burden, the burden of going forward does not shift to the plaintiff, and the motion must be denied. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)
Under these principles, the summary judgment in this case must be reversed for two independent reasons.
A. Defendants Failed to Carry Their Initial Burden
Plaintiff alleged negligence. Negligence is actionable when breach of a legal duty to use due care legally causes the resulting injury. (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 (Padilla).) To establish legal causation, a plaintiff must show the defendant’s act or omission was a substantial factor in bringing about the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778 (Saelzler).) Defendants’ burden on summary judgment was to show, “through the evidence adduced in the case, that the plaintiff cannot reasonably expect to establish a prima facie case of causation, and that a nonsuit in the defendant[s’] favor would be inevitable....” (Padilla, supra, at p. 752.) They attempted to satisfy their burden of showing plaintiff possessed no evidence of causation by showing she could not identify the dangerous condition on which she bases her claim. They failed.
Defendants asserted, incorrectly, that Bettencourt testified plaintiff did not know what caused her fall. On the contrary, Bettencourt testified that when he and plaintiff looked at the driveway the day after the accident and discussed three possible causes of her fall—the curb, the planter, and erosion near the DWP plate—plaintiff “nixed the idea of the planter because you would have known if you fell over the planter. [And t]he curb would have thrown her into the street. And, therefore, she looked at the next obvious possibility, which was the only thing left, which was the dip at the asphalt by the DWP plate.” Construed in plaintiff’s favor, Bettencourt’s testimony shows plaintiff concluded by a process of elimination that erosion near the DWP plate caused her fall.
Defendants argue plaintiff’s conclusion that erosion near the DWP plate caused her fall was speculative, because “it could have been the planter, the curb, the DWP vault and cover, the eroded driveway or just the Plaintiff’s ankle giving way.” They rely on this court’s recent decision in Padilla, where we held that “[w]here there is evidence that the harm could have occurred even in the absence of the defendant’s negligence, ‘proof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence....’ [Citation.] ‘... “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” [Citation.]’ [Citation.]” (Padilla, supra, 160 Cal.App.4th at p. 752, italics omitted.) The argument is without merit.
It is true that plaintiff and Bettencourt testified inexactly about the cause and location of plaintiff’s fall. Plaintiff testified, “I remember my foot buckling... and then I was down.... Like [my ankle] turned.... My foot turned, and I dropped” “[something] brought me down”; “I lost my footing in the erosion, the divot”; and “[I] just dropped.” Bettencourt testified “[t]here was nothing on the ground that would indicate where she fell”; she was not sure if she tripped over the curb, the planter or the DWP plate; “[s]he wasn’t sure where in the driveway she fell”; and she thought the area around the DWP plate was a possibility, but she was speculating. Some evidence therefore exists that the harm could have occurred in the absence of the defendant’s negligence, caused by the planter or curb—neither of which plaintiff alleges were defective—or some physiological factor.
But nothing indicates the probabilities were evenly balanced. Bettencourt testified plaintiff told him on the night of the accident that she “tripped on something in the driveway.” Thus it is more probable that something in the driveway tripped plaintiff than that her ankle simply gave way. Bettencourt also testified plaintiff “had nixed the idea of the planter because you would have known if you fell over the planter. [And t]he curb would have thrown her into the street. And, therefore, she looked at the next obvious possibility, which was the only thing left, which was the dip at the asphalt by the DWP plate.” Construed in plaintiff’s favor, the planter was thus an improbable cause because it was so high that if plaintiff had tripped over it she would have known the cause immediately. And the curb was improbable because a trip there would have thrown plaintiff into the street. By a process of elimination, erosion by the DWP plate became the most likely possible cause of plaintiff’s fall.
Defendants cite several cases where causation was found to be a matter of speculation because the probabilities were at best evenly balanced. None assists them.
In Saelzler, plaintiff was assaulted and injured on defendants’ premises. She alleged defendants failed to maintain the premises in safe condition, to provide adequate security, and to warn of unsafe conditions. (25 Cal.4th at p. 769.) Specifically, she alleged defendants failed to keep all entrance gates locked and functioning or provide additional daytime security guards. (Id. at p. 775.) The Supreme Court affirmed summary judgment for defendants on the ground that plaintiff offered no evidence her assailants gained access to the premises through an open or defective gate or that additional security would have helped. “The primary reason for having functioning security gates and guards stationed at every entrance would be to exclude unauthorized persons and trespassers from entering. But plaintiff has not shown that her assailants were indeed unauthorized to enter.... [T]he assault on plaintiff could well have been made by tenants having authority to enter and remain on the premises.” (Id. at p. 776.)
In Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, plaintiff alleged she was raped by an unknown assailant while in a parking garage. She sued the building owners, alleging they failed to repair a broken security gate. The appellate court affirmed summary judgment for the building owners on the ground that plaintiff offered no evidence that the rapist entered the garage through the broken gate, “or even that the broken gate was the only way he could have entered.” (Id. at p. 483.) The court stated plaintiff “cannot survive summary judgment simply because it is possible that he might have entered through the broken gate.” (Id. at p. 483.)
In Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, plaintiff suffered a stroke during a cardiac procedure. He sued his medical providers, alleging the stroke was caused by the procedure. The appellate court affirmed a judgment of nonsuit against plaintiff on the ground that he failed to submit competent evidence that “the stroke was more probably a complication from the... procedure than a coincidence.” (Id. at pp. 532, 533.)
Most recently, in Padilla, plaintiff sued the owners of a swimming pool in which her young son had drowned. The evidence revealed the child could have gained access to the pool through two nondefective doors or a defective gate. (160 Cal.App.4th at pp. 752-753.) This court held plaintiff could not establish causation because she could not show it more probable than not that the child accessed the pool through the defective gate. (Ibid.)
In each case, the probability that the plaintiff’s injury was not caused by negligence was at least equal to the probability that it was. The plaintiff was therefore unable to show more than a mere possibility of causation.
Here, the probabilities are not evenly balanced. As recounted by Bettencourt, plaintiff stated that she tripped over something in the driveway. A later investigation revealed three possible causes. Plaintiff ruled two of them out, concluding erosion near the DWP plate caused her fall. This conclusion was reached by a process of elimination, not by speculation. Defendants therefore failed their initial burden of showing plaintiff cannot establish causation, and the burden never shifted to plaintiff on that point. For this reason alone, the judgment must be reversed.
B. Disputed Issue of Material Fact
Even had defendants met their burden, plaintiff established at least one disputed issue of fact as to whether defendants’ alleged act or omission was a substantial factor in bringing about her injury.
Plaintiff was required to submit evidence tending to show that it was more probable than not that, but for the landlord’s negligence, the accident would not have occurred. (Saelzler, supra, 25 Cal.4th at p. 775.)
Though she denied revisiting the accident site with Bettencourt, plaintiff testified she visited the site two or three days after the accident and concluded she lost her footing “in the erosion, the divot,” by the DWP plate “[b]ecause it was the only thing in the proximity of where I fell that could have caused that.” She identified the location of the fall with reference to a car and truck parked on the street, testifying that “when I picked myself up to see if I could stand and walk, I knew my proximity to where the truck and the car was.”
The trial court dismissed this testimony, finding it to be “speculative and objectionable. It’s not admissible. And that’s the ultimate issue that the court sees....” It concluded, “There’s nothing to indicate that she, in fact, fell or tripped. But then she went back and believes that that’s the location where she fell. It’s pure speculation. There’s nothing to indicate that she knows that.” This was error. As discussed above, plaintiff did not speculate that erosion near the DWP plate caused her fall, she deduced it after ruling out the curb and planter. The reasoning is not foolproof—something about the driveway might have changed in the two-to-three day interval between the accident and her inspection, or the erosion might prove to be trivial. But neither is it speculative. A jury could similarly conclude that if defendants had maintained the driveway near the DWP plate, plaintiff would not have tripped.
Defendants liken this case to Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729. There, plaintiff slipped and fell in a grocery store but was unable to identify any condition that could have been the cause. Buehler is materially distinguishable because here, plaintiff is able to identify a possible cause of her fall.
In sum, though multiple possible causes of plaintiff’s accident may exist—the planter, the curb, erosion, some transitory condition, or her weak physiology—the evidence suggests they are not equally probable. It is not speculation to conclude the most likely cause is the actual cause. We therefore conclude defendants failed to satisfy their initial burden on summary judgment because they offered no evidence disputing plaintiff’s allegation that a dangerous condition on their premises caused the accident. In the alternative, at least one disputed issue of material fact precludes resolution of the causation issue as a matter of law.
DISPOSITION
The judgment is reversed. Each side is to bear its own costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.