Peterson v. Chasan Family Trust CA4/1 ( 2023 )

Filed 7/24/23 Peterson v. Chasan Family Trust 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBERT O. PETERSON, D080426
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00028363-CU-PO-CTL)
CHASAN FAMILY TRUST,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald F. Frazier, Judge. Reversed.
Law Offices of John Y. Tremblatt and John Y. Tremblatt for Plaintiff
and Appellant.
Tyson & Mendes, Molly A. Gilardi, and Cindy Pham, for Defendant and
Respondent.
Robert O. Peterson, a mail carrier, slipped and fell while walking down
the driveway of certain residential property owned by the Chasan Family
Trust (Trust). Peterson brought suit against the Trust for negligence and
premises liability. The Trust filed a motion for summary judgment, primarily
based upon Peterson’s deposition testimony where he admitted that he did
not know how or why he fell. In opposing the motion for summary judgment,
Peterson submitted a declaration wherein he stated that he slipped and fell
because the driveway was slippery. The court excluded that portion of
Peterson’s declaration, determining that it contradicted his deposition
testimony. Moreover, the court determined that Peterson did not provide
sufficient evidence of causation to defeat the motion for summary judgment.
Peterson appeals the judgment following the Trust’s successful motion
for summary judgment, arguing that his declaration did not contradict his
deposition testimony. We determine that even if we agree with the superior
court that a portion of Peterson’s declaration should have been excluded,
Peterson produced sufficient evidence to create a triable issue of material fact
to thwart the Trust’s motion for summary judgment. As such, we reverse the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Trust owns certain real property on Vista Del Mar in San Diego
(Property). Peterson, who works for the United States Postal Service,
delivered mail to the Property. While delivering mail one day, he fell on the
Property’s driveway and was injured.
Peterson brought suit against the Trust, alleging two causes of action:
negligence and premises liability (willful failure to warn). Specifically,
Peterson alleged that he “slipped and fell as a result of a dangerous condition
of the [P]roperty. Said condition consisted of a slippery surface on the
drivway [sic] which [Peterson] had to traverse to deliver mail.” Peterson
further averred that the Trust “willfully or maliciously failed to guard or
warn against the dangerous condition, use, structure, or activity.”
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The Trust brought a motion for summary judgment, arguing that both
causes of action lacked merit because Peterson could not prove causation.
The fulcrum of the Trust’s motion was Peterson’s deposition testimony
wherein he testified that he had no idea what caused him to fall. In support
of its motion for summary judgment, the Trust submitted a statement of
undisputed material facts, a declaration from Jeffrey Chasan (trustee of the
Trust), a declaration from attorney Elysa Houze-Benson, the operative
complaint, and excerpts from the deposition transcript of Peterson.
In opposing the motion for summary judgment, Peterson maintained
that when he “reached an area midway down the driveway, he lost footing
and fell backwards due to the dangerously steep and slippery driveway.” In
support of his opposition, Peterson submitted a declaration. In that
declaration, he stated, among other things, that: (1) “The driveway was
hazardous and slippery mainly due to extreme steepness and surface”; (2) he
adopted a “modified gait” to walk down the driveway; (3) he had “slipped on
the pavement on multiple occasions” but “did not fall on those prior occasions
as [he] was able to regain [his] footing”; and (4) he had complained to the
Property’s owner “about how dangerous the descent to the mail slot was.”
Regarding the cause of his fall, Peterson declared:
“I do not remember the actual moment of the occurrence. I
do know from the way I fell backwards, landing on my back
and hitting my head, and from the fact that there were no
obstacles in the driveway to trip over that as before, I had
slipped only on this occasion I fell. As I was getting myself
back together I further determined that I slipped and fell
from the fact that the surface of the driveway was slippery,
as it usually was.”
Peterson submitted two other declarations from mail carriers Ryan
Doerr and Steven Howell attesting to the slipperiness and alleged
dangerousness of the Property’s driveway. In addition, Peterson filed
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excerpts from the depositions of Chasan, Barak Covert (the owner of the
company that stained and sealed the Property’s driveway in 2017), and
Peterson. Peterson also filed a separate statement of disputed material facts,
which disputed several of the Trust’s undisputed, material facts.
The Trust filed a reply, objections to evidence submitted by Peterson,
and a reply to Peterson’s statement of additional material facts.
The court entertained oral argument and took the matter under
submission. Ultimately, it granted the motion for summary judgment, noting
that Peterson presented “two theories as to the cause of his fall: the
slipperiness of [the Trust’s] driveway and [the] steepness of the driveway.” In
rejecting the former, the court determined that Peterson’s declaration
wherein he stated that he slipped and fell “ ‘from the fact that the surface of
the driveway was slippery, as it usually was’ ” contradicted Peterson’s
previous deposition testimony where “he repeatedly testified he had ‘no idea’
what caused him to fall, that he does not know why he fell, that he did not
notice anything that he slipped or fell on, and that he was ‘puzzled’ about it.”
As such, the court sustained the Trust’s objection to the last sentence of
paragraph 8 of Peterson’s declaration in which he declared, “As I was getting
myself back together I further determined that I slipped and fell from the fact
that the surface of the driveway was slippery, as it usually was.” Thus, the
court excluded Peterson’s evidence that he slipped and fell on the Property’s
driveway because the driveway was slippery.1
The court also concluded that Peterson did not provide any evidence
that the steepness of the driveway caused his fall.
The court subsequently entered judgment in favor of the Trust.
1 However, the court did not exclude any of the other evidence offered by
Peterson, including the majority of his declaration.
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Peterson timely appealed.
DISCUSSION
I
MOTION FOR SUMMARY JUDGMENT
A. Peterson’s Contentions
Peterson contends the superior court erred in granting summary
judgment because it based its ruling on Peterson’s failure of recollection as to
the actual fall and concluded his declaration stating his fall was caused by
the steep, slippery driveway was inconsistent with his deposition testimony.
Additionally, he argues, “even without the testimony the court [found]
conflicting,” he provided sufficient evidence to create a triable issue of
material fact as to the cause of his fall.
B. Standard of Review
We review an order granting summary judgment de novo. (Gonzalez v.
Mathis (2021) 12 Cal.5th 29, 39 (Gonzalez).) “ ‘In practical effect, we assume
the role of a trial court and apply the same rules and standards which govern
a trial court’s determination of a motion for summary judgment.’ ”
(Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499,
505.)
A defendant seeking summary judgment bears “the burden of
persuasion” that one or more elements of the cause of action in question
cannot be established or that there is a complete defense to it. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The defendant also “bears
an initial burden of production to make a prima facie showing” that no triable
issue of material fact exists; if he carries his burden of production, “he causes
a shift, and the opposing party is then subjected to a burden of production of
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his own to make a prima facie showing of the existence of a triable issue of
material fact.” (Ibid.; Code Civ. Proc., § 437c, subds. (o), (p)(2).)
In determining whether there is a triable issue of material fact, we
consider all the evidence presented on the motion for summary judgment
except that to which objections were sustained. (Gonzalez, supra, 12 Cal.5th
at p. 39.) “ ‘We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.’ ” (Ibid.) “ ‘We accept as undisputed facts only those
portions of the moving party’s evidence that are not contradicted by the
opposing party’s evidence. . . . In other words, the facts alleged in the
evidence of the party opposing summary judgment and the reasonable
inferences therefrom must be accepted as true.’ ” (Hanson v. Grode (1999) 76
Cal.App.4th 601, 604 (Hanson); see Birschtein v. New United Motor
Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein) [on de novo
review of an award of summary judgment, “our account of the facts is
presented in the light most favorable to the nonmoving party below, in this
case plaintiff, and assumes that, for purposes of our analysis, her version of
all disputed facts is the correct one”].) “[A]ny doubts as to the propriety of
granting a summary judgment motion should be resolved in favor of the party
opposing the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
C. Analysis
The summary judgment motion was aimed at two causes of action:
negligence and premises liability. “The elements of a negligence claim and a
premises liability claim are the same: a legal duty of care, breach of that
duty, and proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158; see Ramirez v. PK I Plaza 580 SC LP (2022) 85
Cal.App.5th 252, 260; Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th
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1054, 1070.) In addition, “[b]ecause the owner is not the insurer of the
visitor’s personal safety,” to establish a breach of the owner’s duty “ ‘due to [a]
defective condition on the premises,’ ” the plaintiff must show the owner had
“ ‘ “either actual or constructive knowledge of the dangerous condition” ’ ” or
was “ ‘ “able by the exercise of ordinary care to discover the condition . . . .” ’ ”
(Ortega v. Kmart Corp. (2021) 26 Cal.4th 1200, 1206 (Ortega); see Joshi v.
Fitness Internat., LLC (2022) 80 Cal.App.5th 814, 832; Kaney v. Custance
(2022) 74 Cal.App.5th 201, 216 (Kaney).) “The plaintiff need not show actual
knowledge 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. . . . 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.” (Ortega, at pp. 1206-1207; see Kaney, at p. 216; Moore v. Wal-
Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 477.)
In its summary judgment motion, the Trust argued that Peterson could
not prove causation because he did not know how or why he fell. The Trust
also argued that Peterson could not show a dangerous condition existed at
the Property or that the Trust had any notice of such dangerous condition.
In arguing that Peterson could not prove causation, the Trust relied
exclusively on Peterson’s deposition testimony wherein he testified that he
either slipped or tripped and fell while walking down the Property’s
driveway, but he admitted that he “ha[d] no idea how it happened,” and he
did not “know how [he] fell, why [he] fell.” Further, the Trust argued that
Peterson did not offer “any evidence of a causal link between any kind of
condition of the subject driveway and his fall.”
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In opposing the motion for summary judgment, Peterson submitted his
declaration to address the causation issue raised by the Trust. To this end,
paragraph 8 of Peterson’s declaration purported to explain why he slipped
and fell:
“I do not remember the actual moment of the occurrence. I
do know from the way I fell backwards, landing on my back
and hitting my head, and from the fact that there were no
obstacles in the driveway to trip over that as before, I had
slipped only on this occasion I fell. As I was getting myself
back together I further determined that I slipped and fell
from the fact that the surface of the driveway was slippery,
as it usually was.” (Italics added.)
However, the Trust objected to some of the evidence Peterson
submitted in support of his opposition, including the last sentence of
paragraph 8 of the Peterson declaration. The superior court sustained the
Trust’s objection to the above italicized sentence and disregarded that
sentence. However, there is no indication in the record that the court
sustained any of the Trust’s other objections.
Here, Peterson vehemently argues the court improperly excluded the
last sentence of paragraph 8 of his declaration. We need not decide this issue
because, even if that sentence was properly excluded, the superior court still
erred in granting summary judgment.
Causation is generally a “question of fact which cannot be resolved by
summary judgment” and “may be decided as a question of law only if, under
undisputed facts, there is no room for a reasonable difference of opinion.”
(Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) “Causation must be
established by nonspeculative evidence,” (Kaney, supra, 74 Cal.App.5th at
p. 212), but “[c]ircumstantial evidence is just as good as direct evidence to
create a triable issue of fact.” (Hussey-Head v. World Savings & Loan Assn.
(2003) 111 Cal.App.4th 773, 780.)
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Here, Peterson’s theory is that he slipped and fell while walking down
the Property’s driveway, which was dangerously slippery and steep. The
Trust maintains Peterson presented no evidence regarding what caused him
to slip and fall because he testified during deposition that he had no idea why
he fell. But circumstantial evidence and the reasonable inferences drawn
from it can be sufficient to prove the cause of a plaintiff’s fall, even if the
plaintiff does not know what caused the fall or could not remember the fall.
(Kaney, supra, 74 Cal.App.5th at p. 217; Sokolow v. City of Hope (1953) 41
Cal.2d 668, 672.) In opposing the motion for summary judgment, Peterson
submitted sufficient evidence to create a disputed issue of material fact
regarding causation.
For example, in his declaration, Peterson stated that he had been
delivering mail to the Property for about four years and had to walk down the
driveway to the mail slot. He noted that “[t]he driveway was hazardous and
slippery mainly due to its extreme steepness and surface.” Because of the
“steepness” and “slippery condition of the driveway,” Peterson, as well as
other mail carriers who delivered mail to the Property, “had to adopt a
modified gait to get down and back up the driveway.” Further, Peterson
declared that, before the day he actually slipped and fell on the driveway, he
had “slipped on the pavement on multiple occasions” but “did not fall . . . as
[he] was able to regain [his] footing.”
In addition, the declarations of Doerr and Howell provide evidence that
the Property’s driveway was “steep” and “slippery.”
Finally, Peterson submitted excerpts of the deposition transcript of
Covert, who described the Property’s driveway as “exceptionally steep” and
noted it was “one of the steeper ones I have done.” Covert also testified about
the unique nature of the Property’s driveway:
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“Normally—normally on steeper driveways like this, they
are generally going up into the garage. So I haven’t really
done any that drop down significantly into the garage. But
there is usually some, you know, flat space. And the flat
part you see here is right next to the sidewalk. So that’s as
soon as you drop over that, you know, it’s like a steep grade
down into the garage.”
Covert also testified the Property’s driveway dropped “significantly”
and believed heavier grit was warranted for the driveway “because of how
steep it was.”
Despite Peterson testifying that he did not know how or why he fell
while walking down the Property’s driveway, we conclude that he presented
sufficient evidence to create a triable issue of fact as to causation. Peterson
slipped and fell while walking down the Property’s driveway. He submitted
evidence that the driveway was steep and slippery. And he had slipped
multiple times walking down the driveway before his fall. Against this
backdrop, a fact finder could reasonably infer that Peterson slipped because
of the dangerous condition of the driveway. In making this determination,
we reemphasize that we must liberally construe Peterson’s evidence and
resolve doubts concerning the evidence in his favor. (See Gonzalez, supra, 12
Cal.5th at p. 39; Hanson, supra, 76 Cal.App.4th at p. 604; Birschtein, supra,
92 Cal.App.4th at p. 999.)
Having determined that a triable issue of fact exists as to causation, we
conclude the superior court erred in granting the Trust’s motion for summary
judgment. However, because a property owner’s knowledge or constructive
knowledge of the property’s dangerous condition is an additional element of
premises liability (see Ortega, supra, 26 Cal.4th at p. 1206), we also address
the Trust’s claim that it is undisputed that “No one has ever reported or
complained of the subject driveway being dangerous.” In support of this
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assertion, the Trust relies on Chasan’s declaration wherein he states: “To the
best of my knowledge, prior to this lawsuit, no one has ever complained of or
reported the driveway at [the Property] being dangerous.”
However, Peterson directly contradicted the Trust’s evidence in his
declaration by stating: “I complained to the owner, Jeffrey Chasan, on
previous occasions about the mail slot. Included in the complaints were
complaints about how dangerous the descent to the mail slot was. I asked
Mr. Chasan to move the mail receptacle to [the] street to avoid the risks
posed by the driveway.” If a fact finder found Peterson credible then it could
reasonably conclude that the Trust was aware of the danger the Property’s
driveway presented. Therefore, we conclude a triable issue of material fact
exists as to whether the Trust was aware of the driveway’s dangerous
condition.
Based on the foregoing, we conclude the superior erred in granting the
Trust’s motion for summary judgment.
DISPOSITION
The judgment is reversed. Peterson is entitled to his costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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