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Magyar v. Kaiser Permanente Med. Ctr.

California Court of Appeals, Second District, Second Division
Jan 23, 2023
No. B315353 (Cal. Ct. App. Jan. 23, 2023)




ANDREA EVA MAGYAR et al., Plaintiffs and Appellants, v. KAISER PERMANENTE MEDICAL CENTER et al., Defendants and Respondents.

Law Offices of Gabor Szabo and Gabor Szabo for Plaintiffs and Appellants. LaFollette, Johnson, DeHaas, Fesler &Ames, Arthur E. Zitsow, Scott M. Hendler and David J. Ozeran for Defendant and Respondent Kaiser Permanente Medical Center. Haith | Bagnaschi and Christopher J. Bagnaschi for Defendant and Respondent Modern Parking, Inc.


APPEAL from judgments of the Superior Court of Los Angeles County No. 19STCV32822. Audra M. Mori, Judge. Reversed.

Law Offices of Gabor Szabo and Gabor Szabo for Plaintiffs and Appellants.

LaFollette, Johnson, DeHaas, Fesler &Ames, Arthur E. Zitsow, Scott M. Hendler and David J. Ozeran for Defendant and Respondent Kaiser Permanente Medical Center.

Haith | Bagnaschi and Christopher J. Bagnaschi for Defendant and Respondent Modern Parking, Inc.

LUI, P. J.

A woman slipped and fell while descending some stairs in a medical center's parking structure. She and her husband sued both the medical center and the parking structure's operator. The trial court granted a defense motion for summary judgment, finding no causation. Because we conclude there is a triable issue of fact whether the stair steps on which the woman slipped constituted a dangerous condition, we reverse.


I. Facts

The following facts are undisputed.

On the morning of September 21, 2017, Andrea Magyar drove to Kaiser Permanente Medical Center (Kaiser) in Los Angeles for a medical appointment. She parked on the roof (sixth floor) level of the Kaiser parking structure operated by Modern Parking, Inc. (MPI). It had been raining earlier that morning, but the weather was now sunny. Magyar did not observe any moisture on the roof level surface. A posted sign said there was no elevator on the roof level; Magyar had to walk down two flights of stairs to the fifth floor level to access an elevator. These stairs were apparently not shielded by any type of roof or covering.

The first flight of stairs was in sunlight, and Magyar saw no moisture on the stair steps. As she descended, Magyar held onto the stair railing with her right hand; her purse was over her left shoulder. She observed a yellow painted stripe across the edge of each step. The stripe was two inches wide.

Magyar began to descend the second flight of stairs while continually looking down. Halfway down, the stairwell became dark. The stair steps were "in the shade and dark." Magyar could see her feet and the yellow stripes in the shade.

At one point, the ball of Magyar's right foot touched the yellow line of a shaded stair step, and her foot slipped forward and "straight ahead." Magyar released her hold on the railing and fell down three or four stair steps. Her buttocks hit the edge of the steps, followed by her elbow, wrist, back, and head. Magyar then noticed her hands and the seat of her jeans were wet. She did not see any debris, oil, grease, paper, or "foreign matter" on any of the stair steps.

II. Procedural Background

In September 2019, Magyar and her husband Sandor Vlaszof (plaintiffs) sued Kaiser and MPI (defendants) for premises liability and loss of consortium.

Defendants moved for summary judgment, arguing the stair steps were not an unsafe or dangerous condition. In support of their motion, defendants relied on Magyar's deposition testimony and interrogatory responses. Defendants also submitted a declaration by mechanical engineer Ned Wolfe. After testing the two flights of stairs between the roof and fifth floor levels, Wolfe opined the painted yellow striped edges could not have caused Magyar's fall for two reasons: (1) The yellow stripes, when wet with water, had sufficient slip-resistance to make them safe; (2) The stair steps, including the yellow stripes, were deeply textured to provide additional traction that exceeded industry standards, resulting in "virtually no risk of slipping." Wolfe concluded defendants were not obligated "to utilize caution or warning signs" for the public.

The trial court granted MPI's joinder to Kaiser's motion for summary judgment.

Defendants also submitted the declaration of Merle Lintz, Jr., Kaiser's custodian of records for repair and maintenance orders. Lintz stated there were no work orders for the yellow stripes of paint on the two flights from 2015 up to the present time; the same paint was on the stair steps now as on the day of the incident.

Plaintiffs opposed the motion on three theories: Defendants failed to show the yellow-striped stair steps were safe because Wolfe's and Lintz's declarations lacked foundation and credibility. And, in any event, Wolfe's testimony conflicted with the testimony of plaintiffs' expert, Kenneth D. Newson, a forensic flooring expert. In his supporting declaration, Newson stated Wolfe failed to timely conduct his testing, to apply the correct standards, to use the proper testing equipment, if any, and to test the steps where the yellow paint was worn from foot travel and Magyar fell. Newson opined that Wolfe's testing "[did] not provide a forensically valid result." Newson also examined the stair steps and noted no deep texturing, which, he opined, made them unsafe, especially when wet. Newson concluded the steps did not have the required surface texturing based on industry standards.

Plaintiffs' third theory was Magyar's account of the incident alone was sufficient to show the stair steps constituted a dangerous condition. In her declaration, Magyar stated she did not slip on the yellow striped steps of the first flight of stairs because "they [had been] dried up by the sunlight." In walking down the second flight, Magyar suddenly found herself in the shade, and her "eyes were adjusting to the sudden decreased light." As Magyar stepped on a yellow-painted stripe, "it felt like [she] [had] stepped on ice, it was so slippery." Her "right foot immediately slipped forward" and she fell. Prior to her fall, Magyar "did not notice any moisture accumulated" on the steps "due to the sudden decrease of light." In her deposition, Magyar testified that after falling, she looked around at the steps and saw that they were wet. Magyar also testified the moisture on her hands and pants came from the edges of the steps, but then acknowledged she could not see the moisture on the steps because they were "in the shade" and "dark."

In their reply, defendants argued there was no evidence any stair steps of the second flight were wet, Wolfe did perform the proper testing as stated in his declaration, and Newson's opinions were conclusory and failed to refute Wolfe's test results.

Plaintiffs' objections to Wolfe's and Lintz's declarations in their entirety were overruled by the trial court. The court declined to rule on plaintiffs' remaining objections because they did not comply with rule 3.1354(b) of the California Rules of Court. The court sustained defendants' objections to much of Newson's opinion or rejected it as conclusory. At the conclusion of the hearing, the court determined plaintiffs did not prove the subject stairs constituted a dangerous condition and granted defendants' summary judgment motion. Judgment was entered for Kaiser and, at a later date, for MPI. This appeal followed.


I. Appealability

On August 24, 2021, the trial court's order granting summary judgment to defendants was filed. On September 15, 2021, judgment was entered in Kaiser's favor. On September 16, 2021, plaintiffs filed a notice of appeal from the judgment. On September 21, 2021, judgment was entered in MPI's favor. Plaintiffs did not file a notice of appeal from that judgment.

Without question, the judgments entered on September 15 and September 21, 2021, were appealable as final judgments. (Code Civ. Proc., § 904.1, subd. (a)(1).) Further, plaintiffs' notice of appeal was filed within 60 days of being served with notice of the September 15, 2021 judgment in Kaiser's favor. (Cal. Rules of Court, rule 8.104(a).) However, MPI contends this court has no jurisdiction to consider an appeal from the September 21, 2021 judgment in MPI's favor because plaintiffs failed to file the required notice of appeal in superior court. (See Cal. Rules of Court, rule 8.100(a)(1).)

While MPI's observations are correct, we are generally required to liberally construe a notice of appeal in favor of its sufficiency. (Cal. Rules of Court, rule 8.100(a)(2).) "A notice of appeal shall be' "liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced."' (In re Joshua S. (2007) 41 Cal.4th 261, 272, italics added, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59.)" (In re J.F. (2019) 39 Cal.App.5th 70, 75-76.) "The rule is intended to 'implement the strong public policy favoring the hearing of appeals on the merits.'" (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882, quoting Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960.) "This policy is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal." (Norco Delivery Service, Inc., at pp. 960-961.)

The rule of liberal construction has its limits. For example, a notice of appeal will not be construed to encompass an omitted judgment or order when the appellant clearly and unmistakably intended to appeal solely from the judgment or order expressly identified in the notice. (In re J.F., supra, 39 Cal.App.5th at pp. 76-79 [declining to liberally construe notice of appeal to encompass order entered 44 days before the order identified in the notice, where appellant expressed clear intent to appeal solely from later order].) But when a trial court simultaneously issues two separately appealable orders on the same day, the notice will be liberally construed to apply to both-the one expressly identified in the notice and the omitted one-if it is reasonably clear the appellant intended to challenge both. (See, e.g., Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 321; In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017.)

We realize, of course, that when plaintiffs filed their September 16, 2021 notice of appeal, the order granting MPI's summary judgment motion was a nonappealable order. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) Instead, the appeal should have been taken from the September 21, 2021 judgment following that order. (Ibid.; see Code Civ. Proc., § 904.1, subd. (a)(1).) And while courts have construed an order granting summary judgment as incorporating an appealable judgment and the notice of appeal as appealing from that judgment (North American Title Co., Inc. v. Gugasyan (2021) 73 Cal.App.5th 380, 388, fn. 4; Zavala v. Arce (1997) 58 Cal.App.4th 915, 924), here, plaintiffs' September 16, 2021 notice of appeal did not indicate it was from the order granting summary judgment in MPI's favor.

Nonetheless, in these unique circumstances, we exercise our discretion to entertain the merits of plaintiffs' appeal against MPI for the following reasons. First, it is reasonably clear in their September 16, 2021 notice of appeal that plaintiffs intended to appeal from both judgments that were merely five days apart. The trial court granted Kaiser's summary judgment motion to which MPI had joined. Using optional Judicial Council form APP-002, plaintiffs checked the preprinted box indicating the appeal was from a "judgment after an order granting a summary judgment motion." By filing their notice of appeal, plaintiffs unequivocally expressed their intent to appeal from the final judgment against them. We find nothing that would logically and conclusively demonstrate plaintiffs intended to appeal solely from one of the judgments.

We discern no resulting prejudice to MPI that would preclude the application of the rule of liberal construction. Plaintiffs filed and served the September 16, 2021 notice of appeal on MPI as well as Kaiser. MPI cannot claim it was misled or confused. On October 12, 2021, MPI filed in superior court a designation of record on appeal. Although MPI's respondent's brief urged the lack of appellate jurisdiction, it also fully addressed the merits. In sum, we liberally construe plaintiffs' notice of appeal as embracing both judgments in this unusual setting.

II. Summary Judgment

A. Standard of Review

Summary judgment is appropriate if there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.)" '"' "We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." '" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If the defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.)

III. There Were Triable Issues as to Causation

"An owner of real property is 'not the insurer of [a] visitor's personal safety ....' [Citation.] However, an owner is responsible' "for an injury occasioned to another by [the owner's] want of ordinary care or skill in the management of his or her property ...."' [Citations.] Accordingly, landowners are required 'to maintain land in their possession and control in a reasonably safe condition' [citation], and to use due care to eliminate dangerous conditions on their property." (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-944.)

To establish liability on a negligence or premises liability theory against an owner caused by a dangerous condition of the property, a plaintiff must prove duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 12051206.)

Here the question was whether defendants used reasonable care to ensure the stairs, which they indisputably owned and controlled, did not constitute a dangerous condition. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) A "dangerous condition" is "one which a person of ordinary prudence should have foreseen would appreciably enhance the risk of harm." (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 209.) Whether a particular condition is a dangerous condition is a question of fact unless reasonable minds could come to only one conclusion on the issue. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133.)

We independently agree with the trial court that defendants carried their initial burden to negate causation by showing the yellow-striped stairs did not constitute a dangerous condition. This means the court properly found plaintiffs' attack through Newson on Wolfe's credibility has no bearing on whether the court properly granted defendants' summary judgment motion. "[S]ummary judgment shall not be denied on grounds of credibility." (Code Civ. Proc., § 437c, subd. (e); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 ["The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court's evaluation of credibility"].)

Further, plaintiffs' foundation objections to Wolfe's declaration and challenges to his competence were properly overruled. Wolfe's declaration was detailed as to his background, training, and experience as an expert on the safety of premises and facilities. (Evid. Code, § 720, subd. (a).) He personally investigated the area where Magyar slipped and reviewed the discovery materials in this case. This provided him with sufficient information to apply his specialized knowledge to the particular circumstances presented. Additionally, Wolfe demonstrated his method of forming an opinion and the reasons for his opinion on the safety of the yellow-striped steps. (Sanchez v. Hillerich &Bradsby Co. (2002) 104 Cal.App.4th 703, 718 ["It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion"].)

After finding defendants discharged their burden, the trial court determined plaintiffs failed to produce the necessary countervailing evidence to defeat summary judgment. The court concluded there were no triable issues of fact whether the stairs were a dangerous condition. In so ruling, the court found Newson's declaration improperly attacked Wolfe's credibility and was otherwise speculative and conclusory.

To be admissible, an expert's opinion must not rest on assumptions of fact without evidentiary support or be purely conclusory as unaccompanied by a reasoned explanation linking the factual predicates to the ultimate conclusion. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) An opinion as to causation must contain "a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury." (Id. at p. 1118.)

As the trial court correctly reasoned, because Newson did not conduct his own slip resistant testing, his conclusion the yellow-painted stairs were unsafe was speculative. Moreover, although Newson personally observed and "touch[ed]" the yellow-striped steps, he gave no explanation why the "abrasive additive, cross-cut grooving and texturing" that he claimed was lacking on the surface of the steps created a dangerous condition.

In deciding the subject stairs on which Magyar slipped did not constitute a dangerous condition, the trial court stated, "Even in accepting the stairs were wet and Magyar did not see the moisture on the stairs because of inadequate lighting, Wolfe's declaration establishes the stairs were safe even in a wet condition." The court concluded plaintiffs failed to carry their consequent burden of showing a triable issue of material fact. We disagree.

It is undisputed that Magyar slipped and fell on defendants' stairs. To be sure, the existence of a dangerous condition cannot be inferred merely because Magyar fell on the stairs. (Darrach v. Trustees of the San Francisco County Medical Assn. (1953) 121 Cal.App.2d 362, 366.) However, Magyar testified the yellow-painted stair step from which she fell was inordinately "slippery," she thereafter saw the stair steps were wet and reasonably inferred there was water on the shaded steps from the moisture on her hands and the seat of her pants. This evidence was sufficient to rebut Wolfe's testimony the stair steps were "virtually" slip-resistant wet or dry.

What it boils down to then is whether, under the circumstances, the presence of water on the stair steps, if any, made them so slippery as to be a dangerous condition. From the evidence presented, these are triable issues of fact for a jury. Thus, for purposes of summary judgment, there was a sufficient factual basis to support Magyar's testimony the condition of the stairs caused her to fall. The trial court erred in concluding otherwise.

In light of this conclusion, we do not reach plaintiffs' claims the trial court erred by refusing to allow them to take Wolfe's deposition or to file corrected evidentiary objections prior to the hearing on the summary judgment motion.


The summary judgment in defendants' favor is reversed. Costs of appeal are awarded to plaintiffs.

We concur: HOFFSTADT, J. BENKE, J. [*]

[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Summaries of

Magyar v. Kaiser Permanente Med. Ctr.

California Court of Appeals, Second District, Second Division
Jan 23, 2023
No. B315353 (Cal. Ct. App. Jan. 23, 2023)
Case details for

Magyar v. Kaiser Permanente Med. Ctr.

Case Details

Full title:ANDREA EVA MAGYAR et al., Plaintiffs and Appellants, v. KAISER PERMANENTE…

Court:California Court of Appeals, Second District, Second Division

Date published: Jan 23, 2023


No. B315353 (Cal. Ct. App. Jan. 23, 2023)