Eiges v. All American Asphalt CA2/8 ( 2022 )

Filed 5/19/22 Eiges v. All American Asphalt CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
STEPHEN EIGES, B309241
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC648577)
v.
ALL AMERICAN ASPHALT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Deirdre Hill, Judge. Reversed.
Law Office of Steve A. Hoffman and Steve A. Hoffman for
Plaintiff and Appellant.
Murchison & Cumming, Edmund G. Farrell, and Matthew
E. Voss for Defendant and Respondent.
_________________________________
INTRODUCTION
Plaintiff and appellant Stephen1 Eiges used to live at a
mobile home park in Gardena. Immediately to the south of his
property was an office and warehouse park (the SVF Property).2
Immediately to the west of his property was an auto yard
operated under the name Westway Auto Dismantlers, Inc.
(Westway). In February and March of 2015, respondent All
American Asphalt (AAA) removed and replaced several thousand
square feet of cement driveway at the SVF Property. Also in
2015, there was heavy machinery operating on the Westway
property.
In a lawsuit he filed in 2017, Eiges alleged that dust both
from AAA’s driveway work on the SVF Property and heavy
machinery operating on the Westway property made him ill and
damaged his property. He sought damages under negligence,
premises liability, trespass, and nuisance theories. In 2020, after
taking discovery, AAA moved for summary judgment pursuant to
Code of Civil Procedure section 437c,3 on all of Eiges’s claims on
1 Appellant has been variously referred to herein as
“Stephen,” “Steven,” and “Steve.” We use the spelling from the
caption in the trial court for consistency.
2 We refer to this property as the SVF Property because SVF
Broadway Center Corporation was respondent All American
Asphalt’s customer at the time All American Asphalt performed
the work there. SVF Broadway Center Corporation is not a party
to this action.
3 Undesignated statutory references herein are to the Code of
Civil Procedure.
2
the theory that “there is no evidence of Plaintiff’s exposure to
toxic cement dust for which AAA is responsible.” Eiges opposed
the motion and submitted evidence in support, including
10 exhibits attached to various declarations. AAA objected to
nine of Eiges’s 10 exhibits.
The trial court determined that AAA’s summary judgment
evidence was sufficient to shift the burden of production to Eiges.
It sustained all of AAA’s evidentiary objections and then ruled as
follows on Eiges’s negligence and premises liability claims:
“Based on the court’s rulings on the evidentiary objections,
plaintiff has not provided substantial competent evidence to raise
a triable issue of material fact that defendant breached a duty or
that defendant was a substantial factor in causing plaintiff
damages.” It referred back to its conclusions on negligence and
premises liability in disposing of Eiges’s trespass and nuisance
claims. Accordingly, it granted AAA’s motion and entered
judgment that Eiges take nothing from AAA.
On appeal, Eiges contends that the trial court erred by:
(1) shifting the summary judgment burden to him; (2) admitting
all of AAA’s evidence to which he objected; (3) disregarding his
declaration evidence which was not subject to objection;
(4) excluding all of his evidence to which AAA objected; and
(5) finding no triable issues of material fact exist. We reverse the
judgment based on points (3), (4), and (5), and therefore need not
address points (1) and (2).
DISCUSSION
We review an order granting summary judgment de novo.
(Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 810
(Strobel).) In doing so, “we consider all the evidence set forth in
the moving and opposition papers except that to which objections
3
have been made and properly sustained.” (Pipitone v. Williams
(2016) 244 Cal.App.4th 1437, 1452.) Accordingly, we first
consider the trial court’s rulings on AAA’s evidentiary objections
and then consider the merits of AAA’s motion with the inclusion
of evidence as to which AAA’s objections should have been
overruled.
I. The Trial Court Erred in Sustaining AAA’s
Evidentiary Objections
Fourteen evidentiary objections were asserted below, two
by Eiges and twelve by AAA. Without explanation, the trial court
overruled both of Eiges’s objections and sustained all of AAA’s
objections. The consequence of these rulings was devastating to
Eiges’s case. The trial court itself recognized that the rulings
directly resulted in its finding that Eiges failed to “provide[]
substantial competent evidence to raise a triable issue of material
fact . . . .” We focus our review on the disposition of Eiges’s
objections and find error by the trial court.
A. Standard of Review
The parties both recognize that we review the trial court’s
evidentiary rulings at the summary judgment stage for abuse of
discretion. (Ducksworth v. Tri-Modal Distribution Services (2020)
47 Cal.App.5th 532, 544, overruled on other grounds in Pollock v.
Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932.)
“ ‘An abuse of discretion will be “established by ‘a showing the
trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice.’ ” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 605–
606.) “ ‘The discretion of a trial judge is not a whimsical,
uncontrolled power, but a legal discretion, which is subject to the
limitations of legal principles governing the subject of its action,
4
and to reversal on appeal where no reasonable basis for the
action is shown. [Citation.]’ ” (Westside Community for
Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.)
Limits on a trial court’s discretion take on heightened importance
“when, as here, its exercise implicates a party’s ability to present
its case.” (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 773 (Sargon Enterprises).) We
therefore carefully review whether the trial court’s evidentiary
rulings reflect a permissible exercise of judicial discretion.
B. Discussion
Because the trial court failed to specify the rationale for its
rulings, we are left to divine its reasoning on our own. We are at
a loss to do so. The trial court’s evidentiary rulings appear
contrary to governing legal principles and prevented Eiges from
presenting his case. For the reasons that follow, we find that, to
the extent the trial court considered and exercised discretion in
sustaining all of AAA’s evidentiary objections, it abused that
discretion.
i. Did the Trial Court Adequately Consider
AAA’s Objections Before Sustaining
Them?
The trial court’s failure to explain why it
categorically sustained AAA’s objections, despite promising to do
so, raises doubt as to whether its rulings were well founded. At
the hearing on AAA’s motion, Eiges asked the court to explain
the grounds for its tentative ruling sustaining all of AAA’s
objections. This was necessary because AAA’s objections were of
the “kitchen sink” variety. Each included the same six generic
5
grounds4 followed by one or more additional grounds that either
(i) reiterated one of the generic grounds with minimal
elaboration, or (ii) asserted some non-substantive failure
(e.g., noncompliance with Cal. Rules of Court, rule 3.1350(g)).
The trial court acknowledged that its tentative did not state the
grounds but offered that, “you know, for one reason or another,
all of them were sustained . . . .” After some colloquy that
provided no definitive explanation as to why any particular
objection was sustained,5 the trial court said “[o]kay. The court
will be more specific as to each objection and ground.” But the
court did not follow through on this commitment in its minute
order.
4 These were: “Insufficient foundation. (Evid. Code §§ 403,
405.) Calls for speculation. (Evid. Code §§ 702, 800.) Hearsay.
(Evid. Code § 1200.) Manifestly Irrelevant. (Evid. Code §§ 210,
350, 351.) Writing is not properly authenticated. (Evid. Code
§§ 1400, 1401.) Probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
(Evid. Code § 352.)”
5 Much of the discussion concerned Eiges’s presentation of
exhibits common to multiple declarations by attaching the
exhibits after all of the declarations instead of to each one
separately. The trial court seemingly endorsed this practice
when, after Eiges’s counsel explained “attaching the same exact
photographs four times would have been a big, cumbersome
waste,” the court replied “[o]kay, thank you. I hear you on that
one.”
6
We recognize that trial courts are under no general
obligation to state the reasons for their evidentiary rulings.
(Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 512,
fn. 15, disapproved on other grounds in Noel v. Thrifty Payless,
Inc. (2019) 7 Cal.5th 955, 986, fn. 15.) However, under the
particular facts here, a more detailed ruling would have been
necessary to give us confidence that the court indeed exercised its
discretion. (Cf. Twenty-Nine Palms Enterprises Corp. v. Bardos
(2012) 210 Cal.App.4th 1435, 1447 (Twenty-Nine Palms)
[“Although summarily ruling on numerous evidentiary rulings is
a common labor-saving practice in law and motion courts, the
objections in this case needed individual attention”].) This is not
a case where the reasons for granting the objections were self-
evident. Specifically, the rulings were dispositive in adjudging
Eiges’s claims against AAA, but AAA’s objections were generic
and included multiple grounds, making it impossible to
determine the basis on which the trial court relied. Most of the
summary judgment hearing concerned the evidentiary rulings
but yielded no satisfactory explanation as to the basis for any,
and the trial court promised to articulate a basis for its rulings
but then failed to do so. Under these circumstances, we are
deeply concerned that the trial court did not adequately consider
AAA’s objections in ruling on them.
Our concerns are validated by decisions of our sister courts
addressing blanket rulings excluding summary judgment
evidence where the successful objections included frivolous
grounds. (See, e.g., Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 255–256 [trial court ruling that summarily
sustained 763 out of 764 evidentiary objections, many of them
frivolous, was abuse of discretion]; Greenspan v. LADT LLC
7
(2010) 191 Cal.App.4th 486, 522 (Greenspan) [abuse of discretion
found where trial court’s unexplained ruling sustaining all but
one of defendants’ objections to plaintiff’s exhibits, where
multiple objections were made to most exhibits, was “cryptic”];
Twenty-Nine Palms, supra, 210 Cal.App.4th at pp. 1447–1449
[sustaining all of plaintiff’s evidentiary objections without
reasoning constituted abuse of discretion where some of the
objections were “unreasonable”].) In effect, frivolous objections
serve an unintended quality assurance function because
sustaining them indicates that “the trial court did not consider
the individual objections.” (Twenty-Nine Palms, supra, at
p. 1447.)6
Here, for the reasons more fully discussed below, many of
the grounds AAA advanced for objection were frivolous, further
indicating that the trial court inadequately considered AAA’s
objections.
We are also troubled by the appearance that the identity of
the person making the objection, and not substantive merit, was
determinative of the trial court’s rulings. In contrast to AAA’s
many frivolous but successful objections, Eiges made targeted,
well-founded objections that were overruled (again without
6 The Supreme Court in Reid v. Google (2010) 50 Cal.4th 512admonished litigants “to raise only meritorious objections to
items of evidence that are legitimately in dispute and pertinent
to the disposition of the summary judgment motion” and warned
of “informal reprimands or formal sanctions for engaging in
abusive practices.” (Id. at p. 532.) As shown in Nazir,
Greenspan, and Twenty-Nine Palms, another potential
consequence of making frivolous objections is introducing a new
ground for reversal on appeal.
8
explanation). Both of Eiges’s objections included a hearsay
objection to AAA documents that were not properly
authenticated. These documents—AAA’s purported contract for
work at the SVF Property and purported daily work reports for
the same—were attached to a declaration of AAA’s counsel
declaring them “true and correct” copies of the originals but
offering no other basis for their admission aside from a
boilerplate claim of “personal knowledge of the facts stated in this
declaration.”
Of course, these documents are inadmissible hearsay
unless subject to an exception. (Evid. Code, § 1200, subds. (a),
(b); Faigin v. Signature Group Holdings, Inc. (2012)
211 Cal.App.4th 726, 749.) The only relevant exception for which
the documents might qualify is the business records exception
contained in section 1271 of the Evidence Code. But none of the
facts necessary to show the applicability of that section are found
in AAA’s counsel’s declaration. As such, the business exception
was not established. (See Sanchez v. Hillerich & Bradsby Co.
(2002) 104 Cal.App.4th 703, 720 [“[Counsel’s declaration] did not
specify that he was the custodian of these exhibits, or that these
documents were prepared in the regular course of business, or
that he personally prepared these documents or knew of the
conditions under which they were prepared so that he could
verify their trustworthiness . . . [¶] The trial court correctly
ruled that they were inadmissible”].) A trial court’s discretion in
admitting or excluding evidence is bounded by the legal
principles reflected in the Evidence Code. (Sargon Enterprises,
supra, 55 Cal.4th at p. 773.) Holding one party, but not the
other, to its requirements would not be a proper exercise of
judicial discretion.
9
ii The Trial Court’s Rulings on AAA’s
Objections Were an Abuse of Discretion
Because They Fell Outside the Limits of
the Governing Legal Principles
Objections Based on Format of Presentation (All Objections).
Each of AAA’s objections included some technical format
ground. The only rule AAA cited in support of these format
objections is California Rules of Court, rule 3.1350(g):
“If evidence in support of or in opposition to a motion exceeds
25 pages, the evidence must be separately bound and must
include a table of contents.”
To the extent that Eiges failed to comply with California
Rules of Court, rule 3.1350(g), it would not, standing alone,
provide a basis for sustaining AAA’s objections. We have held
that noncompliance with rule 3.1350’s separate statement
requirements does not warrant an adverse summary judgment
ruling absent extenuating circumstances, notwithstanding
section 437c, subdivision (b)’s provision that “failure to comply
with th[e] requirement of a separate statement may in the court’s
discretion constitute a sufficient ground” for granting or denying
the motion. (See, e.g., Collins v. Hertz Corp. (2006)
144 Cal.App.4th 64, 74 [discussing cases].) This is a fortiori true
for rule 3.1350(g) violations, as section 437c does not authorize an
adverse ruling based on failure to properly bind exhibits. To the
extent the trial court based its decision on rule 3.1350(g), it was
an abuse of discretion.
Objections to Deposition Excerpts (Objections 9–12)
Eiges offered excerpts of depositions of Mitali Datta and
Rodolfo Chacon, inspectors for the South Coast Air Quality
10
Management District (AQMD), and of Dr. Jennifer Chi-Ching
Wang and Patricia Naylor, N.P., medical professionals that
treated Eiges after the exposure alleged in his complaint. AAA’s
objections to these were on its six generic grounds and California
Rules of Court, rule 3.1350(g) only. Tellingly, AAA makes no
attempt to defend these objections on appeal. We do not see how
it could. First, AAA’s rote foundation, speculation, hearsay, and
Evidence Code section 352 objections are entirely unsupported.
To the extent they applied to any specific portion of the
deponents’ testimony, AAA did not specify (a violation of
Cal. Rules of Court, rule 3.1354(b)). In any event, the objections
plainly cannot apply to all of their testimony and the objections
therefore could not serve as a basis for excluding the deposition
transcripts entirely. (See Ambriz v. Kelegian (2007)
146 Cal.App.4th 1519, 1528 (Ambriz) [“As to respondents’
objections on the grounds of improper opinion, lack of foundation
and speculation, at least some portion of the proffered deposition
testimony did not constitute improper opinion, did not lack
foundation, and did not call for speculation . . . . The court should
not have excluded this evidence.”].)
The deposition transcripts were also plainly relevant.
Indeed, AAA thought that Inspectors Datta’s and Chacon’s
testimonies were sufficiently relevant to offer excerpts of the
same in support of its motion. AAA cannot be heard to make a
blanket relevance objection to Eiges offering additional context
for those excerpts that AAA offered. As to the declarations of
Eiges’s healthcare providers, testimony that Eiges developed new
symptoms consistent with cement dust exposure at the time he
alleges AAA was generating cement dust that came into his home
could hardly be more relevant to his claims.
11
Finally, as to authentication, Eiges authenticated each
deposition transcript either through the declaration of his counsel
that attended the deposition; by including the reporter’s
certificate; or both. (See Greenspan, supra, 191 Cal.App.4th at
p. 523 [attorney authentication and reporter certification
acceptable alternative means of deposition transcript
authentication].) Moreover, with respect to Datta’s and Chacon’s
deposition excerpts, AAA “[r]aising an objection as to lack of
authentication of an excerpt from the same deposition [AAA]
relied upon in [its] motion is disingenuous.” (Ambriz, supra,
146 Cal.App.4th at p. 1527.)
The trial court abused its discretion in excluding
Exhibits G, H, I, and J of Eiges’s counsel’s declaration in
opposition to AAA’s motion.
AAA’s Objections to Eiges’s Photographs and Videos (Objections
1–4)
Eiges offered three photograph exhibits and eight videos as
evidence that AAA generated “cement dust” and Westway
generated “airborne powder which looked like smoke,” each of
which entered Eiges’s home. AAA made its generic objections to
these, embellished with the assertion that they lack foundation
because Eiges “fails to state the date” any were taken.
On appeal, AAA does not explain how the photographs and
videos are objectionable except that “no foundation for any of the
photographs or video clips was properly laid” and that they are
“inadmissible.” These assertions, unsupported by any authority,
are unhelpful. In contrast, Eiges argues that he met the flexible
photograph authentication requirements articulated in People v.
12
Goldsmith (2014) 59 Cal.4th 2587 by declaring that he took the
photographs during a specified time period and that they depict
activities on parcels adjoining his home and items in his home.
We agree with Eiges.
First, a proponent need not provide the precise date that a
photograph was taken in order to authenticate it. (Smith v.
ACandS, Inc. (1994) 31 Cal.App.4th 77, 92, disapproved on other
grounds in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235,
1245, [testimony that photograph showed working conditions in
industrial plant sufficient foundation even without identification
of exact date and place depicted].) Second, Eiges did provide date
information that was sufficient under the circumstances to both
authenticate the photographs and show their relevance. He
declared that he saw AAA workers using heavy equipment and
blowing cement dust onto his property “[d]uring the period of
about February 14, 2015 through March 2015.” He then explains
that his photographs and videos of AAA workers were taken
“[o]ver time, on different days.” Obviously, he could only have
taken the photographs of AAA workers on the days that he saw
7 “A photograph or video recording is typically authenticated
by showing it is a fair and accurate representation of the scene
depicted. [Citations.] This foundation may, but need not be,
supplied by the person taking the photograph or by a person who
witnessed the event being recorded. [Citations.] It may be
supplied by other witness testimony, circumstantial evidence,
content and location.” (People v. Goldsmith, supra, 59 Cal.4th at
pp. 267–268.)
13
AAA workers on the jobsite.8 Thus, his testimony is that he took
the photographs and videos of AAA workers during the period of
about February 14, 2015, through March 2015. As this
approximate date range aligns with the dates that AAA claims it
was working at the SVF Property (February 19, 2015 through
March 16, 2015), which AAA’s own evidence shows is adjacent to
Eiges’s property, we see no reason for greater date exactitude to
justify admission of the evidence. This placed an undue hurdle
before Eiges in making his case. To the extent that the trial
court excluded the photographs based on its erroneous finding
that “Plaintiff only gave a range of time of March 2015 and 2016
as the date on which the photos and video were taken,” this was
8 In addition to asserting there was no foundation for the
photographs, AAA also contends on appeal that it objected to the
content of Eiges’s declaration and two other declarations he
submitted in opposition to AAA’s summary judgment motion.
By rule, all written objections must be made in a separate
evidentiary objection. (Cal. Rules of Court, rule 3.1354(b).)
We have carefully reviewed AAA’s separate evidentiary objection,
which is entitled “Defendant, All American Asphalt’s Objections
to Exhibits Offered as Evidence in Support of Plaintiff’s
Opposition to Motion for Summary Judgment” (italics added),
and find no objection to the substance of these declarations.
Nor does AAA provide a record citation to any objection to the
substance of these declarations. And, the trial court’s minute
order does not reflect that it ruled on any such objection.
Whatever merit may lie in AAA’s criticism of these declarations,
including that Eiges lacked foundation to identify the workers on
the SVF Property as AAA employees or that their work was the
source of the dust that sickened him, AAA waived any objection
by failing to properly raise it below. (§ 437c, subd. (b)(5).)
14
also an abuse of discretion. (People v. Surplice (1962)
203 Cal.App.2d 784, 791 [“To exercise the power of judicial
discretion all the material facts in evidence must be both known
and considered . . . .”].)
Having been properly authenticated with a sufficient
foundation, we do not see how the trial court could have
sustained AAA’s objections to the photographs and videos on
AAA’s other stated grounds. They are plainly relevant to show
the dust intrusion that is at the heart of Eiges’s claims. They are
not hearsay because photographs and video images that depict
non-communicatory conduct are not statements. (See Evid.
Code, § 1200 [defining “hearsay” as out-of-court “statement”];
§ 225 [defining “statement” as “oral or written verbal expression
or . . . nonverbal conduct of a person” intended as a substitute for
oral or written expression]; People v. Garton (2018) 4 Cal.5th 485,
506 [“photographs are not statements”].) And we simply see no
basis for AAA’s speculation and Evidence Code section 352
objections, and neither AAA nor the trial court suggested any.
The trial court abused its discretion in excluding
Exhibits A, B, C, and D of Eiges’s declaration in opposition to
AAA’s motion.
AAA’s Other Objections (Objections 5–7; 8)
Some of the photographs that Eiges authenticated were
also referenced in other declarations. AAA objected that those
declarations failed to authenticate the photographs (along with
its other generic grounds) and the trial court sustained the
objections (Objections 5–7). It is unnecessary for us to address
these rulings because we find those photographs should have
been admitted pursuant to Eiges’s declaration.
15
Eiges also submitted a purported Google Maps printout to
which AAA made its generic objections and the trial court
sustained the objection (Objection 8). Eiges concedes this
printout is unnecessary to present his case, i.e., it is not a
material fact, so we do not review the trial court’s decision to
exclude it.
II. The Trial Court Erred in Granting AAA’s Motion for
Summary Judgment
A. Standard of Review
On appeal of summary judgment in favor of a defendant,
we exercise de novo review. “We independently review the
papers supporting and opposing the motion” (Jimenez v. 24 Hour
Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 553–554), and
“ ‘ “ ‘must decide independently whether the facts not subject to
triable dispute warrant judgment . . . as a matter of law.
[Citations.]’ [Citation.] Put another way, we exercise our
independent judgment, and decide whether undisputed facts
have been established that negate [the] plaintiff’s claims.” ’
[Citation.] We ‘ “accept as true the facts . . . in the evidence of the
[plaintiff] and the reasonable inferences that can be drawn from
them.” ’ [Citation.] And in undertaking our analysis, ‘ “we must
‘ “view the evidence in the light most favorable to [the
plaintiff[]] . . .” and “liberally construe [the plaintiff[’s]]
evidentiary submissions and strictly scrutinize [the] defendant[’s]
own evidence, in order to resolve any evidentiary doubts or
ambiguities in [the plaintiff[’s]] favor.” ’ ” ’ [Citation.]” (Strobel,
supra, 70 Cal.App.5th at p. 810.)
Summary judgment must be denied when “genuine” or
“triable” issues of material fact remain—that is, when “the
evidence would allow a reasonable trier of fact to find the
16
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
B. Discussion
AAA moved for summary judgment on the grounds that
“there is no evidence of [Eiges’s] exposure to toxic cement dust for
which AAA is responsible.” More particularly, it claimed “[Eiges]
cannot demonstrate that fugitive dust traveled from the SVF
[Property], the area in which AAA was working, to [Eiges’s
home].” Absent any such evidence, AAA continued, Eiges cannot
establish the breach or cause elements of negligence or premises
liability; the occupation or cause elements of trespass; or the
predicate invasion of Eiges’s property necessary to sustain a
nuisance claim. We disagree given the record evidence of the
following facts:9
9 Our recitation of these facts includes references to Eiges’s
declaration submitted in opposition to AAA’s motion. We agree
with Eiges’s third point of error that the trial court erred in
weighing, discounting, disregarding, or excluding this and other
declaration testimony, as to which AAA had made no objection, in
granting AAA’s motion. (See Avivi v. Centro Medico Urgente
Medical Center (2008) 159 Cal.App.4th 463, 467 [“When deciding
whether to grant summary judgment, the court must consider all
of the evidence set forth in the papers (except evidence to which
the court has sustained an objection), as well as all reasonable
inferences that may be drawn from that evidence, in the light
most favorable to the party opposing summary judgment”].)
We do not repeat the trial court’s error in our de novo review so
the point merits no further discussion.
17
On January 27, 2015, Eiges saw Dr. Wang, his family
medicine doctor, and had no pulmonary symptoms. Indeed, prior
to the exposure complained of, he had not had any respiratory
symptoms since the 1960’s.
On February 14, 2015, Eiges noticed construction starting
on the SVF Property. He does not recall the first day he noticed
dust coming from the SVF Property but it was after February 14.
He did notice concrete dust coming from the SVF Property not
later than February 19, 2015, when he called the AQMD. The
AQMD recorded his complaint as “ ‘[c]oncrete dust in
neighborhood. White dust making ill, Gardena.’ ” AAA, which
had contracted to perform “Concrete Drive Replacement” ’ at
15621 South Broadway (the SVF Property), was there that day
“jackhammer[ing] concrete 3 feet deep” to locate gas lines and
“scarify[ing] top 12 [inches]” of some surface.
On February 20, 2015, AQMD Inspector Datta went to
investigate Eiges’s complaint. However, she went to
15507 Broadway instead of 15621 South Broadway. Having
visited a location that AAA was not working, she unsurprisingly
“witnessed no activity at the site.” Had she gone to 15621 South
Broadway on that day, she would have witnessed AAA workers
engaged in “saw cutting” and more “scarify[ing].”
On February 28, 2015, Eiges again complained to the
AQMD, which recorded his complaint as about “a construction
site next door causing powder dirt, and his home is full of dirt.
The fence has been removed and dust all over his property.” On
that particular day, AAA was “scarify[ing]” again and “plac[ing]
2 [feet] of new fill.” Because of the poor subgrade in some
sections, AAA workers “also spread[] powder cement into base to
add extra strength.”
18
AQMD did not investigate Eiges’s February 28 complaint
until a few days later, about March 4, 2015. That time Inspector
Datta’s records show she went to a “[c]onstruction site on
Redondo Beach Boulevard, Gardena, California”—again not the
address of the SFV Property—and found that that site (whatever
it may have been) was “[o]perating in compliance.”
Eiges made another complaint on March 4, 2015, which
Inspector Datta described as being about “fugitive cement dust.”
When Inspector Datta investigated this complaint the next day,
she encountered “ ‘All American Asphalt[]’ ” workers engaged in
paving activity—she had found the SVF Property. She spoke
with Eiges10 who, per her report, told her “ ‘that the dust from the
paving of an alley directly south of [his] property was coming into
his home and causing health issues.’ ” Eiges “ ‘also showed [her]
the area where the fence separating the two properties was
broken[,] causing dust [to come] into the area.’ ” Inspector Datta
did not “ ‘see any fugitive dust in the air’ ” at that time, but did
inform Victor Correa, an AAA supervisor, of Eiges’s dust
complaint.11 Correa told her “ ‘that he was trying to keep
everything wet in order to mitigate the dust’ ” and “ ‘offered to fix
the broken fence at the property line in order to contain any dust
from the paving work.’ ” However, AAA never fixed the fence.
10 Although Inspector Datta was “not sure” whether Eiges
was the complainant she spoke with, AAA concedes that, “[a]side
from Plaintiff’s, there were no other complaints regarding
fugitive dust from the SVF Project site made to the AQMD.”
11 AAA’s daily work reports show that Victor Correa was on
the jobsite for 10 hours that day. The “field notes” portion of that
report reflects no interaction with AQMD (it is blank).
19
The same day Eiges told Inspector Datta AAA’s cement
dust was causing him health issues, and on March 5, 2015, he
was seen by Dr. Wang at Kaiser Permanente. He complained to
Dr. Wang “about exposure to breathing in concrete dust.”
Dr. Wang confirmed, based on her history of seeing Eiges, that
his “very first” pulmonary symptoms began “when he had started
the concrete dust exposure.” Even though she believed he had
underlying conditions relating to a history of smoking and
asthma, “[h]e had no symptoms before he was exposed to concrete
dust.” On this basis, Dr. Wang considered his concrete dust
exposure was “more probably than not” the trigger of his
pulmonary symptoms.
Eiges took steps to document the dust intrusion into his
home. On various dates in February and March 2015, he took
photographs and videos of AAA workers “blowing big clouds of
cement dust” which he declares entered his home. While the
referenced photographs and videos show light-colored airborne
dust above the SVF Property, they do not clearly show airborne
dust crossing the property line.12 However, Eiges also provides
photographs of certain “home items coated with AAA’s blown
cement dust.” Consistent with our standard of review, we
reasonably infer from the evidence that this dust entered his
home by crossing the property line.
12 Video clip number 7 shows airborne dust crossing the
property line over a broken fence, but Eiges’s testimony appears
to be that this occurred after AAA was no longer working at the
SVF Property.
20
These facts would manifestly allow a reasonable trier of
fact to find, by a preponderance of the evidence, that AAA’s
cement entered Eiges’s property and caused him the harms
claimed. Perhaps anticipating this, AAA attempts to negate this
evidence. However, its efforts only underscore the need for a trial
to resolve disputes about the facts.
First, AAA asserts that it could not have been the source of
the dust because it was at the SVF Property only from February
19, 2015, to March 16, 2015, but Eiges claimed the dust came
towards his house before this—“on February 14, 2015”—and
continued after—“daily until June 2015.” This is a patent
misrepresentation of Eiges’s testimony. What Eiges said at his
deposition is that construction started on February 14 but the
dust began later. AAA’s counsel questioning him at the
deposition understood this nuance:
“[Eiges]: February 14, it was a Saturday, Valentine’s day,
is the day the construction started.
[Counsel]: Right. But when did you first notice the dust?
[Eiges]: I’m going to say the beginning of March.”
Further, it is plausible that there was activity at the SVF
Property, such as erecting temporary fencing, that preceded
AAA’s arrival. Indeed, AAA’s daily work reports show a
temporary fence was removed on March 11, 2015, but no earlier
report shows that such a fence was erected.
Nor did Eiges testify “that the cement dust came toward his
home continuously until June 2015.” He did say the “cement
dust [was] coming . . . daily” but did not specify when or for how
long. He specified June 2015 only as the date through which the
“dust contamination lasted.” (Italics added.) The continued
presence of AAA’s dust does not require AAA’s continued
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presence at the SVF Property.
AAA also argues that AQMD’s failure to witness a dust rule
violation proves that AAA did not commit one. AAA fails to
explain the logic of how evidence that one witness did not observe
dust negates evidence that another witness observed dust.
Strictly construing AAA’s evidence, we can discern that AQMD
visited the SVF Property just once while AAA was working
there.13 During that visit, though the inspector observed no
airborne dust actively crossing the property line, she did see an
“ ‘area where the fence separating the two properties was broken
causing dust [to come] into the area.’ ” For summary judgment
purposes we infer that, as dust does, it traveled by air to get
there. Moreover, the AAA supervisor at the site acknowledged
the dust problem, explaining “ ‘he was trying to keep everything
wet in order to mitigate the dust’ ” and “ ‘offered to fix the broken
fence at the property line in order to contain any dust from the
paving work.’ ” Finally, the record does not show whether Eiges’s
subsequent complaints to AQMD after AAA had allegedly
completed the job were about airborne dust or residual dust on
his property.
13 The evidence indicates that during the same period AQMD
twice visited an incorrect location—15507 Broadway on February
20, 2015, and a “[c]onstruction site on Redondo Beach Boulevard”
on March 4, 2015. Moreover, AQMD’s sole confirmed visit to the
site during the time AAA was working there was on a different
day than Eiges complained to AQMD, meaning that the activities
that day may have been different than the activities on the day of
the complaint.
22
Similarly, AAA argues that the absence of complaints from
persons other than Eiges shows that there was no intrusion into
his mobile home park. First, the absence of complaints does not
negate the presence of a hazardous condition. (Cf. Eriksson v.
Nunnink (2011) 191 Cal.App.4th 826, 850 [that trainer had
received no complaints about a horse’s fitness for competition did
not negate possibility that trainer knew horse was unfit].)
Second, two of Eiges’s neighbors signed declarations that cement
dust was being blown over a fence onto their property “in the
earlier part of 2015” and that it gave them coughs and affected
their breathing.
Finally, AAA intimates that the presence of dust from the
Westway property renders Eiges unable to show AAA was the
cause of his injuries. We disagree. There is substantial evidence
to support a conclusion that AAA’s dust generated in
jackhammering, saw cutting, and scarifying existing cement and
“spread[ing] powder cement” caused Eiges’s illness. First, the
evidence would permit the conclusion that only AAA created
cement dust. Whereas Eiges’s photographs show AAA’s cement
dust was light gray, they show Westway’s “powder which looked
like smoke” was dark grey, i.e., different than AAA’s cement dust.
The testimony and photographic evidence could thus support the
conclusion that Westway’s substance was something other than
cement dust. Second, Eiges and his doctor each testified that he
began experiencing pulmonary symptoms while AAA admits it
was working on the SVF Property. While this temporal
connection is not enough to show causation (see Sanderson v. Int’l
Flavors & Fragrances (C.D.Cal. 1996) 950 F.Supp. 981, 985
[applying California law]), Eiges’s doctor confirmed that his
symptoms were consistent with concrete dust exposure, and that
23
concrete dust exposure was more likely than not the cause of his
symptoms given the timing of the onset.
None of this is to say that the evidence would compel a
finding that AAA’s cement dust entered Eiges’s home and
sickened him. A reasonable fact finder could certainly find to the
contrary. But Eiges is not the summary judgment movant. Eiges
submitted admissible evidence that would allow a trier of fact to
find in his favor on the issues for which AAA said he lacked
evidence. With that showing, he was entitled to denial of the
summary judgment motion. We need not address whether any of
AAA’s evidence should have been excluded.
DISPOSITION
The judgment of the trial court is reversed, and the case
remanded for proceedings consistent with this opinion. Costs are
awarded to Eiges.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
GRIMES, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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