MELANIE MCHENRY VS 6059 GREENLEAF LLC

Tentative Rulings

Case Number: BC700123    Hearing Date: March 03, 2020    Dept: SEC

McHENRY v. 6059 GREENLEAF LLC

CASE NO.:  BC700123

HEARING:  3/3/20

#7

TENTATIVE ORDER

Defendant 6059 Greenleaf LLC’s motion for summary judgment is DENIED.

Plaintiff to give NOTICE.

Defendant 6059 Greenleaf LLC moves for summary judgment pursuant to CCP § 437c.

Evidentiary Objections

 

Plaintiff’s evidentiary objections are overruled for failure to comply with CRC 3.1354.  Plaintiff failed to identify the name of the document, exhibit, tile, page, and line number of the material objected to.

Defendant’s evidentiary objections are overruled.

Complaint

 

The Complaint filed on 3/19/18 alleges that on 4/1/16, Plaintiff was an invitee at the property to provide personal caretaking services for a disabled resident that lived at the property.  She suffered personal injuries when she opened the screen door at the back entrance and fell down the steps and struck the cement ground.  (Complaint, ¶¶ 7-8.)  The screen door opened outward to a cement staircase with no landing.  (Id. at ¶ 6.)  The screen door when opened obstructed the handrail for the staircase.  (Id.)  Based on these facts, the Complaint asserts causes of action for:

1. Negligence – Premises Liability

2. Negligence Per Se

 

Standard

A defendant moving for summary judgment has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established.  (CCP § 437c(p)(2).) 

Merits

 

In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation, and damages. A plaintiff meets the causation element by showing that: (1) the defendant's breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff's harm; and (2) there is no rule of law relieving the defendant of liability. These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.  (Ortega v. Kmart Corp. (2001) 26 Cal.4^th 1200, 1205.)

A plaintiff need not show actual knowledge in a negligence action where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.  (Ortega, supra, 26 Cal.4^th 1207.)

Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances.  The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care the owner would have discovered the condition, he is liable for failing to correct it.  (Ibid.)

 

Defendant contends it is entitled to summary judgment on both causes of action because as to Negligence, it had no notice of the dangerous condition and the condition was open and obvious, and as to Negligence Per Se, the Los Angeles Building Codes do not apply to the subject stairs.

Defendant submits the following evidence:

· Plaintiff was injured at approximately 6:10 a.m. when she was exiting the back doors, which were illuminated by the morning dawn.  (Defense Separate Statement (DSS) 6.)

· The Executive Director of HR for Mercedes Diaz Homes visited Plaintiff in the hospital and she admitted that the accident was her fault; she ran out the back door, and was wearing the wrong shoes.  (Peres Decl., ¶¶ 5-7.)

· Defendant was never told that the stairs needed to be repaired or replaced.  (DSS 10.)

· Defendant was never advised of any dangerous condition on the property or of any prior incidents.  (DSS 13-15, 19-22.)

· There were no building codes in effect at the time of construction of the property in 1919 or 1920.  The Uniform Building Code came into effect in 1927 and there is no retroactive requirement.  (DSS 17.)

The court finds that Defendant has met its initial burden of presenting evidence that shows that it had no prior notice of the dangerous condition and that the Building Codes were not in effect at the time the property was constructed.

In opposition, Plaintiff submits the following evidence:

· Plaintiff tripped over the unsafely designed, constructed, and maintained loose threshold of the door. (Plaintiff’s Separate Statement (PSS) 1, 8).

· Plaintiff had nothing to grab onto as she began to fall.  (PSS 2.)

· The raised threshold, lack of a top landing, and lack of handrail along the stairway created a dangerous condition.  (PSS 4.)

· Prior to the incident, the tenant of the unit, Mr. Young slipped on the back stairs and fell against the side railing.  Plaintiff’s supervisor was notified of the incident.  (PSS 6.)

· The threshold violated applicable codes at the time of the fall.  (PSS 21.)

· The concrete on the stairs is the same color as the foundation, and suggests that it was constructed at the same time in the 1908s.  At that time, the code requires a landing on each side of a door.  (PSS 31-33.) 

· The stairway lacked a handrail and top landing.  (PSS 34.)

The court finds triable issues exist regarding whether the stairs are a dangerous condition for lack of a handrail and landing.

Although Defendant contends that it did not have prior notice of the condition, a plaintiff need not show actual knowledge in a negligence action where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.  (Ortega, supra, 26 Cal.4^th 1207.)  Here, the stairs without handrails and lack of a landing existed for a sufficient period of time, such that Defendant could have investigated the condition of the stairs to make them safe.

According to Plaintiff’s expert, “the subject stairway was in direct violation of the Uniform Building Code” because it lacked a “floor or landing on each side of the door.”  (Avrit Decl., ¶ 9.)  Further, the stairway was also in an unsafe condition because of a raised threshold, causing Plaintiff to trip and fall; the stairway lacked a handrail and a top landing, both of which would help reduce the risk of falls down stairways and are required by current building codes.  (Id. at ¶ 10.)  The white guardrail was obstructed by the screen door which opens outward and could not act as a handrail to users.  (Id.)

Further, “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (for example, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability, if the breach of duty was a proximate cause of any injury.”  (Osborn v. Mission Ready Mix (1990) 224 Cal. App. 3d 104, 122.)  Here, triable issues exist regarding whether Defendant owed a duty to remedy the stairs.

Accordingly, because triable issues exist, summary judgment is DENIED.

Case Number: BC700123    Hearing Date: February 04, 2020    Dept: SEC

McHENRY v. 6059 GREENLEAF LLCCASE NO.:  BC700123JUDGE: OLIVIA ROSALESHEARING:  2/4/20

#7

TENTATIVE ORDER

Plaintiff McHenry’s motion to compel further responses by Defendant to Plaintiff’s request for admission, set two is MOOT. Sanctions are imposed against Defendant and counsel, jointly and severally, in the sum of $1,560.00, payable within 30 days.

Moving Party to give NOTICE.

Plaintiff McHenry moves to compel Defendant’s further responses to request for admissions, set two pursuant to CCP § 2033.290.

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general.” (CCP § 2033.290(a).)

The court finds the parties adequately met and conferred. On 1/13/20, Defendant served verified responses to Plaintiff’s Request for Admissions, Set Two. Accordingly, the motion is MOOT.

Sanctions: CCP 2023.010(d) and 2033.290(d) authorize the court to impose sanctions for failure to respond to discovery without substantial justification.

Here, sanctions are appropriate because Defendant’s initial evasiveness necessitated the motion. This court issued similar rulings on four previous motions. Yet, Defendant still failed to comply with Plaintiff’s discovery regarding Request for Admissions, Set Two. Thus, sanctions are warranted. The court finds Plaintiff’s total request of $1,560.00 is reasonable. Sanctions are imposed against Defendant and counsel, jointly and severally, in the sum of $1,560.00, payable within 30 days.

Case Number: BC700123    Hearing Date: December 03, 2019    Dept: SEC

McHENRY v. 6059 GREENLEAF LLC

CASE NO.: BC700123

HEARING: 12/3/19

JUDGE: RAUL A. SAHAGUN

#7

TENTATIVE ORDER

Plaintiff McHenry’s motion to compel further responses to requests for production of documents, set two is taken off-calendar as MOOT. This court previously ruled on this motion on 7/5/19.

Case Number: BC700123    Hearing Date: November 26, 2019    Dept: SEC

McHENRY v. 6059 GREENLEAF LLC

CASE NO.: BC700123

HEARING: 11/26/19

#6

TENTATIVE ORDER

Plaintiff McHenry’s motion to compel further responses to requests for admission set two is taken off-calendar as MOOT. This court previously ruled on this motion on 7/5/19.