Downes v. Belmont Park Entertainment CA4/1 ( 2021 )

Filed 12/29/21 Downes v. Belmont Park Entertainment CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBERT DOWNES, D077851
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2017-
BELMONT PARK ENTERTAINMENT, 00041162-CU-PO-CTL)
LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed.
Niddrie Addams Fuller Singh and John S. Addams for Plaintiff and
Appellant.
Bremer Whyte Brown & O’Meara, Vik Nagpal, and John Paul Salem
for Defendant and Respondent.
Defendant Belmont Park Entertainment, LLC (BPE), owns, operates,
and maintains the Belmont Amusement park in Mission Beach, which
includes the Beach House Grill restaurant and bar (BHG). Plaintiff Robert
Downes sued BPE for negligence and premises liability after he fell
backwards off a barstool onto a sand-covered patio at the BHG bar. Downes
alleged the bar flooring—a 3-foot-wide hard surface walkway between the bar
and an 8-inch-deep sand patio—created a dangerous, hidden condition, giving
rise to BPE’s duty to remedy and/or warn of the unsafe condition.
BPE moved for summary judgment pursuant to Code of Civil Procedure
section 437c1 on various grounds including the “open and obvious doctrine.”
Pursuant to this doctrine, a possessor of property has no duty to remedy or,
as relevant to this case, warn of a dangerous condition that is open and
obvious because the condition itself serves as notice of the danger. (See, e.g.,
Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980 (Zuniga).)
Although it is a question of fact whether an unsafe condition is “open and
obvious,” the court here found the doctrine applied as a matter law and
granted summary judgment for BPE.2 Alternatively, the court found
Downes’s failure to timely respond to BPE’s separate statement provided an
independent, discretionary ground to grant the motion. The court
subsequently awarded BPE costs of $17,359.34.
As we explain, we conclude Downes proffered sufficient evidence to
establish a triable issue of material fact whether the condition of the flooring
presented a danger that was open and obvious or one that required a warning
due to the hidden danger. We also conclude the court erred in granting
1 Unless otherwise indicated, all further statutory references are to the
Code of Civil Procedure.
2 BPE also moved for summary adjudication on three issues: (1) Downes
caused his own fall by pushing himself off the barstool; (2) his premises
liability cause of action failed under the “open and obvious doctrine”; and
(3) his negligence cause of action was barred by the “trivial defect doctrine.”
On appeal, BPE does not argue it is entitled to summary adjudication on any
of these issues. We nonetheless address them, albeit in connection with the
grant of summary judgment.
2
summary judgment based on Downes’s failure to timely respond to BPE’s
separate statement. Based on our decision, we further conclude the award of
costs to BPE must be reversed.3
I. FACTUAL AND PROCEDURAL OVERVIEW
A. BHG
BHG is a 30,000 square-foot outdoor venue featuring tiki bars, fire pits,
cabanas, and tropical palms, with capacity to accommodate over 800 seated
guests. BHG is located along the busy Mission Beach boardwalk, just behind
Belmont Park. This area is a popular tourist attraction particularly during
the summer months, when BHG is open seven days a week from about noon
to sundown.
In 2007, BHG was remodeled to include a “ ‘boardwalk-like’ walking
surface surrounded by sand areas to create the unique atmosphere of an
oceanfront restaurant and bar.” The boardwalk-like hard walking surface
(the walkway) around the bar is formed with “3/4 [inch] ‘Trex’ plastic wood
planks screwed to supports set in the sand.” The walkway “extends 36
[inches] out from the counter support wall”; the wall also supports a 9 1/2-
inch bar counter overhang. The clear space between the edge of the bar
counter to the end of the walkway is therefore 26 1/2 inches (i.e., 36 minus 9
1/2). Although the “pale cream” sand is nearly “flush” with the top level of
the dark, maroon colored walkway, the sand is actually 8-inches deeper than
the hard surface it abuts.
3 Given our reversal of summary judgment, we deem it unnecessary to
address whether the court erred in denying Downes’s new trial motion (see
§ 657) following the grant of summary judgment for BPE.
3
The footprint of the wooden barstools placed on the walkway is 18 1/2
inches by 16 1/8 inches. The seats of the barstools are 17 1/2 inches by 9 1/8
inches, and the barstools are 29 7/8 inches tall.
B. The Accident
On June 1, 2016, Downes and family members ate lunch at a
restaurant in Belmont Park. At about 1:00 p.m., Downes, his brother Patrick
Downes and their wives entered BHG through the back entrance, walked
through sand, and sat at the tiki bar. In opposing summary judgment,
Downes described himself as a large patron, and submitted medical records
showing he had been diagnosed with “obesity.”
Downes sat on a barstool near the corner of the bar. When he first sat
down, he pulled the barstool out about a foot and a half from the bar counter,
but otherwise did not move while seated at the bar.4 Over about a four-hour
period, he consumed at least three margaritas.
After being at the bar with his brother for about four hours, Downes
“shifted” his barstool by “using his hands to push himself off the bar while
[his] feet were on the barstool.” Patrick saw one of the legs of his brother’s
barstool slip off the walkway into the sand, causing his brother to fall
backwards and hit his head on the ground, rendering him temporarily
unconscious. The walkway where Downes sat on the barstool was dry and it
was light outside at the time of the accident. Paramedics and other
emergency personnel stabilized Downes before he was transported by
ambulance to the emergency room.
4 At his deposition, Downes placed a circle on a photograph showing
where he sat at the bar prior to his fall. We have attached this photograph as
Appendix A to this opinion.
4
As a result of the fall, Downes underwent spinal fusion surgery in
January 2017. He underwent another spinal surgery in January 2019 to
alleviate pressure and possible failure of adjacent discs, and to replace
“hardware” from the first surgery.
From 2007 to the date of Downes’s accident, no one “complained
regarding the offsets between the walking surfaces and sand located around
the venue.” Nor had there been any reports of injuries during this time
period from “the bars, barstools, offsets between the walking surfaces and
sand, or sand areas located around the venue.”
C. The Experts
In support of its summary judgment motion, BPE submitted the
declaration of Tom Blatchley, a licensed architect. Blatchley performed
measurements of the bar area, including the walkway and the sand area
around the bar. Based on these measurements, Blatchley opined that there
were “adequate clearances” “in the construction of the area in question”; that
the size of the barstool appeared to fit “easily” within the width of the
walkway; and that a patron would be too far from the bar counter to sit
comfortably at the bar if the hind legs of the barstool on which he or she sat
were near the edge of the walkway.
In reaching his opinions, Blatchley relied on a diagram ostensibly
published by the American Institute of Architects that he determined
reflected conditions “similar to those claimed in this case.” 5 The diagram
depicts a human figure sitting on a barstool. The front legs of the barstool
5 We say “ostensibly” because the diagram appears on the letterhead of
MC Consultants Inc., a company for which Blatchley has provided expert
services since 2010. As noted, this diagram is not based on measurements of
the BHG bar taken by Blatchley, BPE’s expert.
5
are 8 inches from the bar base, and the back legs are 24 inches from that
base, leaving 12 inches from the back legs to what in this case would be the
transition between the walkway and the sand. Based on his inspection and
analysis, Blatchley opined the BHG bar was fully compliant with “all
applicable California Building Code [(CBC)] sections and requirements of the
[Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA)].”
In response to BPE’s assertion that the “offset between the sand and
the wooden area serves as a visual indicator of the change in elevation” and
therefore, was “open and obvious,” Downes submitted the declaration of Brad
Avrit, a licensed engineer.
Avrit opined the walkway and its transition to sand created a
dangerous condition. He maintained that the barstools at BHG were
“designed and intended to be used on flat, stable, firm, planar surfaces” such
as the walkway and not on sand that was eight inches deep. He added, “If
the legs from a chair [i.e., barstool] in the bar area enters the sand, two
things will occur. First, the chair will become unstable due to the changes in
elevation between the sand level and the wood surface level. Second, the leg
(or legs) from the chair will sink into the sand causing it to be stuck in place.
The second issue is significant as a chair entering the sand area will likely be
due to a patron pushing their chair back away from the bar to get up. If this
sinking and sticking occurs, then the motion of the chair will change from
backwards sliding, to fixed rotation before a patron is aware of what
happened.”
Like Blatchley, Avrit also took multiple measurements of the bar area,
including the walkway and the barstool’s footprint. Avrit measured the
walkway and found it was 44 inches wide at its base, or eight inches wider
than Blatchley. However, even with the alleged wider walkway, Avrit opined
6
the bar flooring created a dangerous condition because the barstool took up
about 50 percent “of the available walkway space,” and, accounting for a
reasonable amount of legroom of about 20 inches for a larger patron such as
Downes, the hindlegs of a patron’s barstool would be “mere inches from the
edge of the wooden walkway.” (Italics added.)
Using a “measuring tool,” Avrit found it sunk about 1 3/4 inches into
the sand due to its “smaller surface area.” Based on the ease in which the
tool sank into the sand, Avrit opined the combination of the weight of a
person sitting on a barstool “and the low surface area of [its] leg[s]” would
cause the barstool to sink “several inches” into the sand if its leg or legs left
the walkway, thus creating a tripping hazard.
Avrit further opined the bar flooring violated both the CBC and the
ADA. He also maintained BPE had a duty to remedy the danger created by
the flooring and, as particularly relevant in the instant case, to warn patrons
who sat on barstools at the bar of the dangerous condition “immediately
behind them.”
D. Summary Judgment
In its moving papers, BPE argued Downes’s negligence cause of action
failed “because: 1) Plaintiff cannot establish Defendant owed a duty to
prevent him from leaning back while sitting at a barstool; [and] 2) even if a
duty is owed, the undisputed facts show Defendant’s conduct was not a
substantial factor of Plaintiff’s harm.” Further, BPE argued that Downes’s
premises liability cause of action failed “because the alleged dangerous
condition plead[ed] falls within the scope of the open and obvious defense and
trivial defect defense.”
7
In opposing summary judgment, Downes did not timely submit a
response to BPE’s separate statement. His counsel on two occasions—first,
at the summary judgment hearing, and second, in a new trial motion—
attempted to file the response, and admitted it was untimely due to a
“technical problem” with “formatting.” However, the court reassured Downes
it had considered “all” the facts in this case before granting summary
judgment.
In granting the motion, the court found Downes had conceded in his
declaration that the “boardwalk joining the sand was an open and obvious
condition” because the “ ‘edge of the deck was flush with the sand in the sand
pit, and there was no visible drop-off.’ [Citation.] Plaintiff was aware of the
transition from boardwalk to sand.”
The court then turned to the issue of whether Downes was required out
of necessity to encounter the dangerous condition: “Plaintiff argues ‘a patron
drinking at Defendant’s bar, would obviously be required to sit on the deck
available.’ This argument ignores that there is no evidence the barstools
were, as a matter of necessity, positioned on the edge where the boardwalk
meets the sand. There is no evidence bar patrons are required to move the
barstools to be on this edge. Moreover, there is no evidence bar patrons were
required to sit at the bar. Rather, photos of the premises indicate that the
bar patrons could sit at areas around the bar that did not approach the
transition from boardwalk to sand. Thus, larger patrons could have, if they
found this transition was anything more than a trivial defect, avoided it b[y]
8
simply sitting elsewhere. Plaintiff has failed to raise an issue of fact as to the
application of the open and obvious doctrine.” 6
II. DISCUSSION
Downes argues the court erred in granting summary judgment for BPE
because a triable issue of material fact exists regarding whether a reasonable
person would appreciate the danger created by the bar flooring due to the
walkway’s solid surface, the 8-inch-deep sand abutting the walkway and its
proximity to the bar counter, and the fact the barstools were intended to be
used only on the walkway. Downes thus argues BPE at a minimum had a
duty to warn of the dangerous condition. We agree.
A. Standard of Review and Summary Judgment
On appeal from an order granting summary judgment, we apply an
independent or de novo standard of review to determine whether triable
issues of material fact exist and whether the moving party is entitled to
judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 860 (Aguilar); Wiener v. Southcoast Childcare Ctrs., Inc.
(2004) 32 Cal.4th 1138, 1142 (Wiener).) “In ruling on the motion, the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably
drawn therefrom [citation], and must view such evidence [citations] and such
6 The court also found Downes’s failure to timely respond to BPE’s
separate statement provided a separate, albeit discretionary, ground to grant
the motion. (See § 437c (b)(3) [“The opposition papers shall include a
separate statement that responds to each of the material facts contended by
the moving party to be undisputed. The statement also shall set forth plainly
and concisely any other material facts the opposing party contends are
disputed. Each material fact contended by the opposing party to be disputed
shall be followed by a reference to the supporting evidence. Failure to comply
with this requirement may constitute a sufficient ground, in the court’s
discretion, for granting the motion.”].)
9
inferences [citations], in the light most favorable to the opposing party.”
(Aguilar, at p. 843.) As such, the court will “liberally construe plaintiff’s
evidentiary submissions and strictly scrutinize defendants’ own evidence, in
order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.”
(Wiener, at p. 1142.) Further, the court must consider “all the evidence set
forth in the moving and opposition papers except that to which objections
have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.)
Ultimately, the purpose of summary judgment is to “provide courts
with a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar, supra, 25 Cal.4th at p. 843.) A defendant moving for
summary judgment has the initial burden of showing that a cause of action
lacks merit because one or more elements of the cause of action cannot be
established or there is an affirmative defense to that cause of action. (§ 437c,
subd. (o)(1), (2); Aguilar, at p. 850.) If the defendant meets that threshold
burden, then the burden shifts to the plaintiff to make a prima facie showing
that a triable issue of fact exists as to the cause of action set forth. (Aguilar,
at p. 849.)
“There is a genuine issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact in favor of
the party opposing the motion in accordance with the applicable standard of
proof.” (Aguilar, supra, 25 Cal.4th at p. 845.) “The court may not ‘grant[ ]’
the defendants’ motion for summary judgment ‘based on inferences . . . , if
contradicted by other inferences or evidence, which raise a triable issue as to
any material fact.’ ” (§ 437c, subd. (c); see Aguilar, at p. 856.) Thus, the court
must deny the motion for summary judgment if it concludes that plaintiff's
10
evidence, or inferences from such evidence, raise a triable issue of material
fact. With these principles in mind we turn to the merits.
B. Premises Liability
1. The No-Duty Exception to Remedy and/or Warn of an
Obviously Dangerous Condition
Beginning in 1968, the Supreme Court held the liability of a possessor
of land would be governed by ordinary principles of negligence law, thus
abolishing the common law distinctions between the standards of care owed
to trespassers, licensees, and invitees. (See Rowland v. Christian (1968)
69 Cal.2d 108, 119 (Rowland).) Rowland relied on Civil Code section 1714 as
the source of a landowner’s duty (Rowland, at pp. 111–112), the current
version of which provides in part: “(a) Everyone is responsible, not only for
the result of his or her willful acts, but also for an injury occasioned to
another by his or her want of ordinary care or skill in the management of his
or her property or person, except so far as the latter has, willfully or by want
of ordinary care, brought the injury upon himself or herself.”
The general duty to exercise ordinary care in the management of one’s
property is subject to judicially created exceptions, including what has
become known as the “open and obvious doctrine” at issue in this case.
Under this doctrine, a possessor of land has no duty to remedy or warn of an
obviously dangerous condition. Stated differently, the “no-duty exception for
open and obvious dangerous conditions provides that ‘ “if a danger is so
obvious that a person could reasonably be expected to see it, the condition
itself serves as a warning, and the landowner is under no further duty to
remedy or warn of the condition.” ’ (Jacobs v. Coldwell Banker Residential
Brokerage Co. (2017) 14 Cal.App.5th 438, 447 [(Jacobs)].)” (Zuniga, supra, 61
Cal.App.5th at pp. 993–994.) “[T]he rationale for the exception to the general
duty of ordinary care is that the foreseeability of harm usually is absent
11
because third parties will perceive the obvious and take action to avoid the
danger.” (Id. at p. 994.)
Judicial Council of California Civil Jury Instruction (CACI) No. 1004
sets forth the no-duty exception for open and obvious conditions of danger. It
states:
“If an unsafe condition of the property is so obvious that a
person could reasonably be expected to observe it, then the
[owner/lessor/occupier/one who controls the property] does
not have to warn others about the dangerous condition.
However, the [owner/lessor/occupier/one who controls the
property] still must use reasonable care to protect against
the risk of harm if it is foreseeable that the condition may
cause injury to someone who because of necessity
encounters the condition.” (CACI No. 1004.)
Under “Directions for Use,” the Judicial Council states CACI No. 1004
should be given along with CACI No. 1001, governing the basic duty of care,
“if it is alleged that the condition causing injury was obvious. The first
paragraph addresses the lack of a duty to warn of an obviously unsafe
condition. [Citation.] [¶] The second paragraph addresses when there may
be a duty to take some remedial action. Landowners may have a duty to take
precautions to protect against the risk of harm from an obviously unsafe
condition, even if they do not have a duty to warn.” (CACI No. 1004, italics
added.) Here, we are concerned only with the duty to warn of a dangerous
condition.
As is clear from CACI No. 1004, whether an unsafe condition is hidden
or obvious is a question of fact for the trier of fact. (See Davis v. City of
Pasadena (1996) 42 Cal.App.4th 701, 704 (Davis) [whether a condition is
dangerous is ordinarily a question of fact, which may be resolved as a
question of law only if reasonable minds can come to but one conclusion];
12
Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, 667 [“when the
evidence is so conflicting that different conclusions may reasonably be drawn
regarding the dangerous character of the defects . . . , the determination of
such questions should be left to the jury”], abrogated by statute on another
ground as stated in Brown v. Poway Unified School Dist. (1993) 4 Cal.4th
820, 831); cf. Jacobs, supra, 14 Cal.App.5th at p. 447 [plaintiffs did not
challenge the court’s conclusion that the “dangers of the empty swimming
pool were per se obvious to any adult” and therefore, the issue was “whether
there is any evidence from which a trier of fact could find that, as a practical
necessity, [the plaintiff] was foreseeably required to expose himself to the
danger of falling into the empty pool” by stepping onto the diving board that
subsequently collapsed].)
2. Analysis
The parties do not dispute that BPE owed Downes a general duty of
care to maintain the premises of BHG in a reasonably safe condition. The
dispute instead centers on whether Downes submitted sufficient evidence to
create a triable issue of material fact regarding whether the dangerous
condition created by the bar flooring was hidden, as he contends; or whether
the dangerousness of the condition was per se obvious because the transition
from the walkway to sand was easily observable and marked by contrasting
colors, such that no reasonable trier of fact could find otherwise, as BPE
contends and as the court found.
Our analysis is informed by Zuniga. There, the plaintiff’s husband died
after being electrocuted when the plaintiffs’ 28-foot metal pole advertising
their business contacted an overhead power line at an outdoor swap meet.
Unlike in the instant case, the issue of whether the power lines were
obviously dangerous went to a jury, which was instructed with CACI No.
13
1004 among other instructions. After finding the plaintiff’s husband
contributorily negligent, the jury awarded the plaintiff about $9.5 million.
(Zuniga, supra, 61 Cal.App.5th at p. 984.)
On appeal, the defendants argued they owed no duty of care to the
plaintiffs “because the danger presented by the overhead power line was open
and obvious.” (Zuniga, supra, 61 Cal.App.5th at p. 984.) The Court of
Appeal, as had the trial court in denying the defendants’ new trial motion
and motion for judgment notwithstanding the verdict, concluded otherwise,
finding there was sufficient evidence to establish it was “not obvious that the
line was uninsulated, that it was energized, or that the amount of electricity
being transmitted was lethal.” (Ibid.) Thus, in upholding the jury verdict,
the Zuniga court concluded a “warning would not have been superfluous, it
would have provided information that was not obvious.” (Ibid.)
Similar to the power lines at issue in Zuniga in which a person might
see the lines but not appreciate the danger they pose, a bar patron sitting on a
barstool under the circumstances of the instant case might see the different
bar flooring surfaces. However, the patron may not appreciate the danger
posed by the two types of flooring due to the depth of the sand and the ease in
which a leg of a barstool might sink into the sand.
We conclude there is a factual dispute whether the danger posed by the
bar flooring was hidden or obvious. BPE’s expert opined the walkway
extended 36 inches from the base of the bar counter to the sand, and there
was minimal, if any, differences in elevation between the two surfaces, such
that any danger was obvious. Downes’s expert opined the danger was hidden
given the footprint of the barstool, the depth of the sand, and its proximity to
the walkway. According to Downes’s expert, it was reasonably foreseeable
the back legs of a barstool would be “mere inches” from the sand when a large
14
bar patron such as Downes sat at the bar, and, if the patron shifted the
barstool, its legs could slide off the walkway and become stuck in the sand,
causing the patron to fall.
Given this factual dispute, we cannot say as a matter of law a bar
patron would appreciate the unsafe condition created by the bar flooring in
this case, such that a warning of this condition would have been superfluous.
(See Zuniga, supra, 61 Cal.App.5th at p. 984.) We therefore conclude the
court erred in granting summary judgment for BPE.
BPE nonetheless argues there “is sufficient evidence to support the
trial court’s finding that the transition from deck to sand was open and
obvious.” However, the issue presented in this case is not whether the
“transition from deck to sand was open and obvious,” but rather whether this
transition created a dangerous condition because the 8-inch depth of the sand
was not open and obvious. It is for this reason the court erred when it
incorrectly ruled Downes conceded “the boardwalk joining the sand was an
open and obvious condition.”
In addition, the test for whether summary judgment was properly
granted in this case is not whether evidence supports the court’s finding the
condition was open and obvious, but rather whether Downes proffered
sufficient evidence to sustain his burden to show a factual dispute whether
the bar flooring was obviously dangerous, giving rise to BPE’s duty to warn of
the unsafe condition. (See Aguilar, supra, 25 Cal.4th at pp. 849–850 [once a
defendant moving for summary judgment shows a cause of action lacks merit,
the burden shifts to the plaintiff to make a prima facie showing that a triable
issue of fact exists to defeat summary judgment].) As we have found, Downes
has made such a showing in this case.
15
C. Additional Grounds Raised by BPE Do Not Warrant Summary
Judgment
BPE argues Downes was not required to sit on a barstool and could
have sat in many other places at BHG, as the court also found in granting
summary judgment. BPE thus argues it had no duty to remedy the
dangerous condition because Downes was not required, out of necessity, to
confront the purported danger. Because we have found a triable issue of
material fact exists whether BPE had a duty to warn Downes of the unsafe
condition (see CACI, No. 1004; Zuniga, 61 Cal.App.5th at p. 984), we decline
to decide whether there was a triable issue of fact whether BPE also may
have had a duty to remedy that condition.
BPE also relies on the trivial defect doctrine. (See Skillin v. Rady
Children’s Hospital & Health Center (2017) 18 Cal.App.5th 35, 43 [“Because
we review ‘the ruling, not the rationale,’ we may affirm summary judgment
on a different basis than the trial court.”]; Kaneko v. Yager (2004) 120
Cal.App.4th 970, 977 [“The trial court’s stated reasons for granting summary
judgment are not binding on us because we review its ruling, not its
rationale.”].) Under this doctrine, a property owner is not liable for damages
caused by a “minor, trivial or insignificant defect in property.” (See Caloroso
v. Hathaway (2004) 122 Cal.App.4th 922, 927 [“The ‘trivial defect defense’ is
available to private, nongovernmental landowners.”].)
In support, BPE argues the offset between the two contrasting flooring
materials varied by no more than 3/4 of an inch, and therefore, this minor
difference in elevation was trivial as a matter of law. However, this
argument ignores the existence of a triable issue of fact whether the depth of
the sand and its proximity to the bar counter created a danger of falling such
that a property owner had a duty to warn of the unsafe condition.
16
BPE also argues the facts establish as a matter of law that Downes
caused the injury. However, whether Downes was contributorily negligent
for his injuries, including as a result of his alcohol consumption served by
BPE, is a question for the trier of fact. (See Ewing v. Coverleaf Bowl (1978)
20 Cal.3d 389, 399 [whether a plaintiff is comparatively at fault for his or her
injuries is for the trier of fact to decide]; see also Zuniga, supra, 61
Cal.App.5th at p. 984 [noting the jury found the plaintiffs were 22.5 percent
at fault for their injuries and apportioned fault accordingly].)
D. Evidentiary Objections Overruled by the Trial Court
BPE objected to the entirety of Downes’s declaration filed in opposition
to summary judgment on the ground it allegedly conflicted with his
deposition testimony. (See, e.g., Whitmire v. Ingersoll-Rand Co. (2010) 184
Cal.App.4th 1078, 1087 (Whitmire) [“It is well-established that ‘a party
cannot create an issue of fact by a declaration which contradicts his prior
discovery responses.’ ”].) The court overruled BPE’s objection. BPE on
appeal argues the court erred and renews its objection to the entirety of the
declaration.
In support, BPE notes Downes testified at his deposition that
immediately before he fell off the barstool, he “shifted the barstool” and then
“went over.” On further questioning, Downes also testified he “pushed off the
bar” and, while his feet were on the barstool, he fell, but he could not recall
the “sensation” of the barstool tipping over or “much after that.”
In his declaration opposing summary judgment, Downes stated he
“tried to adjust [his] chair and pushed back from the bar to do so,” and the leg
of the barstool “slipped off the deck into the sand,” causing him to fall
backwards and hit his head. It is this alleged inconsistency between
17
Downes’s deposition testimony and his declaration that BPE argues rendered
the latter evidence inadmissible.
We do not find a “clear[] contradiction[]” exists between Downes’s
deposition testimony and his declaration. (See Whitmire, supra, 184
Cal.App.4th at p. 1087.) Although Downes testified at his deposition he could
not remember the “sensation” of falling over or “much after that,” he was not
then asked to give a reason why he believed he fell. In addition, that Downes
might have used different verbs to describe his conduct immediately before
he fell (i.e., he “shifted” his barstool, he “pushed off” the bar, he “adjust[ed]”
his barstool), does not create a clear conflict between his deposition testimony
and his declaration.
In any event, even if Downes’s declaration is discredited on this point,
Patrick, who was sitting next to his brother, stated in his declaration he saw
the leg of his brother’s barstool “slip[] off the wooden planks into the sand” as
his brother “attempted to adjust his barstool,” and as a result, his brother fell
and “hit his head.” Thus, there is evidence from a source independent of
Downes’s declaration regarding the reason he fell off the barstool. (See Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1525 [“While . . . a trial
court [may] disregard declarations by a party which contradicts his or her
own discovery responses . . . , it does not countenance ignoring other credible
evidence that contradicts or explains that party’s answers or otherwise
demonstrates there are genuine issues of factual dispute.”].)
BPE also argues the court erred in overruling various objections to
portions of Avrit’s declaration. As a threshold matter, we decline to address
any objection to evidence we have not relied on in conducting our de novo
review of this case. This includes objections to Avrit’s opinions that Downes
was unaware of the transition between the walkway and the sand because he
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was facing the bar counter; that, due to shifting of the sand, it was possible
the elevation of the sand could change such that the two surfaces were not
flush; and that the bar flooring violated the CBC because the elevation
between the walkway and the sand was greater than 1/4 inch. None of
Avrit’s opinions on these subject matters has any bearing on our conclusion
that a factual dispute exists whether the dangerous condition caused by the
bar flooring was hidden or obvious.
BPE also objected to Avrit’s opinions that, to sit comfortably on a
barstool at the bar, a patron might need up to 20 inches of legroom (measured
from the base of the bar), in contrast to the 8 inches shown in the diagram
submitted by BPE’s expert; and that, based on the measurements of the bar
area and the footprint of a barstool, it was foreseeable a patron could be
sitting on a barstool positioned “mere inches from the sand.”
We conclude the court did not abuse its broad discretion in overruling
these two objections. (See Carnes v. Superior Court (2005) 126 Cal.App.4th
688, 694 [the weight of authority, which we follow, applies an abuse of
discretion standard of review when a court, in granting or denying summary
judgment, exercises its discretion to overrule or sustain an evidentiary
objection].) Downes himself stated in his declaration that, because of his size,
he pulled his barstool out about a foot and a half (i.e., 18 inches) when he sat
down, as he needed the additional legroom; and that he remained in this
position for about four hours until he fell. Clearly, reasonable minds differ on
the amount of legroom a person needs to sit comfortably at the BHG bar.
This difference, which in turn impacts how close a barstool’s legs are to the
sand, is a question for the trier of fact. (See Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 772 [“The trial
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court’s gatekeeping role does not involve choosing between competing expert
opinions.”].)
Finally, disregarding Avrit’s declaration and using Blatchley’s
measurements, we have found a triable issue whether the bar flooring was
openly dangerous. Therefore, admission of Avrit’s opinions did not prejudice
BPE. (See Cal. Const., art. VI, § 13 [“No judgment shall be set aside, or new
trial granted, in any cause, on the ground of . . . the improper admission or
rejection of evidence, . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.”].)
E. Failure to Timely Submit a Response to the Separate Statement
The court also found summary judgment was proper because Downes
failed to timely submit a response to BPE’s separate statement. (See
§ 437c(b)(3) [providing in part that failure to respond to a separate statement
“may constitute a sufficient ground, in the court’s discretion, for granting the
motion”].) The court nonetheless stated it had read and considered “all” the
facts the parties had submitted in connection with the summary judgment
motion.
Here, in conducting our independent review of “all” the facts in the
record, we have found a triable issue exists whether the dangerous condition
created by the depth of the sand and its proximity to the bar counter was
hidden or obvious. In light of our decision, and given the strong public policy
favoring a decision on the merits rather than on a procedural deficiency, we
conclude the court erred in separately granting summary judgment under
subdivision (b)(3) of section 437c. (See, e.g., Bahl v. Bank of America (2001)
89 Cal.App.4th 389, 398 [concluding the court abused its discretion in
denying the plaintiff’s request for a continuance of the defendant’s summary
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judgment motion in order to conduct additional discovery, reasoning a court
“must abide by the guiding principle of deciding cases on their merits rather
than on procedural deficiencies” and “[w]hen the two policies collide head-on,
the strong public policy favoring disposition on the merits outweighs the
competing policy favoring judicial efficiency.”].)7
III. DISPOSITION
We reverse the summary judgment and cost award for BPE. Downes to
recover his costs on appeal.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
7 In light of our decision, we conclude Downes’s opposed motion for this
court to consider additional documentary evidence—his three-page response
to BPE’s separate statement—is moot. In addition, because we reverse
summary judgment, the fee award for BPE cannot stand. (See Rich v.
Schwab (1984) 162 Cal.App.3d 739, 745 [reversal of summary judgment also
required reversal of an award of costs and attorney fees, “there being no
prevailing party at this stage”].)
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