Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, James A. Bascue, Judge, Los Angeles County Super. Ct. No. SC 079521
Michael S. Traylor for Plaintiff and Appellant.
Liner Yankelevitz Sunshine & Regenstreif, Peter E. Garrell, Margaret P. Stevens, Kathryn L. McCann for Defendants and Respondents Westfield Corporation, Inc., and Century City Mall.
Bradley & Gmelich, Thomas P. Gmelich, and Lena J. Marderosian for Defendant and Respondent Merchants Building Management.
FLIER, J.
Appellant Fannette Ball filed an action against respondents Merchants Building Management, LLC (hereafter Merchants), Westfield Corporation, Inc., and Century City Mall, LLC, arising from appellant’s fall on premises owned by Century City Mall. The trial court granted respondents’ motions for summary judgment on the ground that appellant “failed to raise a triable issue of material fact with respect to whether the area on which she fell was in a dangerous condition at the time of the accident.” We conclude that the trial court erred in sustaining objections to evidence propounded by appellant in opposition to the motion and that this evidence establishes that there are triable issues of material fact. Accordingly, we reverse the judgment.
FACTS
On a rainy afternoon on November 9, 2002, appellant, then 71 years old, drove herself to Century City Mall (hereafter Mall) in Los Angeles to do some shopping. It was raining when appellant arrived at the Mall, which is an outdoor mall, and it had been raining since the day before. Appellant had visited the Mall many times before.
Century City Mall, LLC, is the owner of the Mall; Westfield Corporation manages the Mall; and Merchants provides housekeeping and janitorial services.
Appellant wore a raincoat, hat, boots, and carried an umbrella. She walked around the uncovered areas more slowly than usual due to the rain and puddles of water. After shopping for approximately two hours, appellant exited Macy’s and approached the escalator. She stepped onto the metal plate that leads to the escalator steps. When she was approximately 18 inches from the escalator, her left foot slid forward on the metal plate. Her left foot became wedged into the left side of the escalator, and she was taken down the moving escalator, apparently seated, for several steps, until the escalator stopped. When the escalator stopped, appellant was sitting on the third step from the bottom, with her left foot caught in the side of the escalator. These basic facts are not disputed.
The controversy centers on whether there was a mat on the metal surface adjoining, or preceding, the escalator steps on which appellant concededly slipped. Appellant’s contention in the trial court, and on appeal, was that a mat had not been placed on this metal surface and that, had a mat been in place on the metal surface, appellant would not have slipped.
The principal support of appellant’s position that there was no mat on the metal surface is her own declaration. In that declaration, she states in relevant part: “At the top of the escalator was a large metal plate. The plate was uncovered. There were no warning signs and no mat present at the time which was approximately 3:00 - 3:30 p.m. My foot slid from under me in a forward direction on the wet, metal plate. Had there been a mat and/or had the plate been dry[, ] I do not believe I would have fallen. I did not trip or stumble; my foot slid on the wetness and went from under me. [¶] . . . As a result of the accident, I broke my left foot and had two (2) surgeries in an attempt to correct the damages. To date, I am permanently disabled and cannot walk without the assistance of a cane. I have to walk with my foot turned to the side and at a very slow pace.” During the first of her two depositions taken in July 2004, appellant placed an “X” on a photograph of the metal plate and the escalator that marked where she believed that her left foot slipped; this photo is included in the record.
Appellant’s second deposition was taken on May 9, 2006, two weeks before the motions for summary judgment were filed. She was asked: “And just to clarify your testimony, you said you did not see any mats in front of the escalator. And my question is: Did you not see them or do you not recall seeing them? [¶] A I don’t recall seeing them. [¶] Q And do you understand the difference in the question? [¶] A I’m not sure. [¶] Q Okay. If you testified that you did not recall seeing them, you don’t know whether or not -- they may have been there but you may not remember seeing them there versus if you say I didn’t see them, you looked and they weren’t there. [¶] A I didn’t see them.” Not surprisingly, the confusion thickened as two more lawyers present at the deposition, including appellant’s own counsel, attempted to clarify the state of appellant’s recollection regarding the presence or absence of a mat. After an inconclusive and unhelpful exchange between the lawyers as well as appellant, the subject was exhausted with the following exchange: “Q [by respondents’ counsel:] Do you understand the question? Do you remember looking and saying there are no mats there? [¶] A Well, I wasn’t looking for mats, so I don’t know. I don’t know. [¶] Q Okay. So is it correct to say that you do not recall seeing any mats there? [¶] A Yes. I don’t -- I don’t recall seeing them.”
Appellant also offered the declaration of Kenneth A. Solomon who holds a Ph.D. in Engineering from University of California, Los Angeles and describes himself as a forensic engineer and expert in risk assessment. In relevant part, the declaration states: (1) that appellant’s injuries were caused by her slipping on a wet surface, that she did not stumble or trip “on her own”; (2) that appellant’s description of the accident sequence was “consistent with the expected biomechanics of a fall accident occurring due to a slip mechanism on a wet, metal surface”; (3) that had “Century City Mall and/or their maintenance company placed a proper mat with proper traction over the entire metal plate leading to the moving step on the escalator, Plaintiff’s injury would not have occurred in the manner that it did”; and (4) that the lack of a “proper mat or runner on the metal plate” was in violation of the “ASTM Standard Practice for Safe Walking Surfaces.”
His curriculum vitae is not in the record but was attached to his declaration, which states that he is the “Institute Director and Chief Scientist at the Laboratory of Risk and Safety Analyses.”
In addition to contending that a mat had been placed on the metal surface where appellant slipped (see text, post), respondents relied on the testimony of their expert, Ned Wolfe, who applied the “English XL tribometer” test, which measures the slip resistance, or traction, of surfaces. Under this test, a measurement of 0.50 is recommended for dry surfaces. Wolf tested the metal surface dry, yielding results between 0.98 and 1.0, which is very satisfactory, and results between 0.59 and 0.62 when wet, which is better than the recommended figure for dry surfaces. Appellant’s expert Solomon also produced good results applying this test to the metal surface when wet.
As noted, Merchants provides housekeeping and janitorial services for the Mall. Veronica Corona, a supervisor working for Merchants, was at the Mall when appellant fell; Corona was there to conduct training sessions for crews working on the Mall. According to Corona, she reminded the crews to place safety cones and mats in rainy weather. Corona’s declaration states that she saw safety cones placed at several locations and that she saw mats placed on the metal plates both where appellant fell and at the bottom of that escalator.
Appellant’s expert Solomon’s declaration states that he read Corona’s deposition and that “Corona testified that the mat which the Defendants claim is placed on the metal plate was not large enough or properly placed in a manner which would cover the metal plate.” Solomon concluded that putting a mat that was not large enough to cover the plate was below the standard of care.
THE TRIAL COURT’S RULINGS
Respondents objected to that portion of appellant’s declaration where she states that the plate was “uncovered, ” and if there had been a mat there, she did not believe that she would have fallen. The basis of the objection was that appellant “cannot create a triable issue of fact by contradicting previous testimony with a declaration to oppose summary judgment.” The trial court sustained this objection, which we will refer to as the “Ball Ruling.”
The trial court also sustained an objection to appellant’s declaration that, as a result of the accident, she broke her foot, had two surgeries to correct the damage, must walk with a cane and walks with her foot turned to the side. Although this ruling is not material to this appeal, we note in light of possible future proceedings that these are statements of fact that appellant is qualified to make about her own condition. Doubts about the accuracy of these statements go to weight and credibility; the objection should have been overruled.
Respondents interposed objections to Solomon’s declaration. Merchants made 10 objections, the other two respondents jointly filed nine objections. The two sets of objections are largely duplicative. The trial court ruled on 10 objections; we therefore assume that the court addressed the objections raised by Merchants. In order to avoid confusion, we retain the numbering of the objections found in Merchants’ document.
Objection No.’s 1, 2 and 3 were overruled. These objections addressed the incorporation of Solomon’s report into his declaration (objection No. 1); the opinion that appellant’s description of the accident was consistent with the expected biomechanics of a fall accident occurring due to a slip mechanism on a wet, metal surface (objection No. 2); and the opinion that appellant’s injuries were caused by her slipping on a wet surface and that she did not stumble or trip “on her own” (objection No. 3.)
The trial court sustained objection Nos. 4, 5 and 6. These were Solomon’s conclusions that had “Century City Mall and/or their maintenance company placed a proper mat with proper traction over the entire metal plate leading to the moving step on the escalator, Plaintiff’s injury would not have occurred in the manner that it did” (objection No. 4); that the lack of a “proper mat or runner on the metal plate” was in violation of the “ASTM Standard Practice for Safe Walking Surfaces” (objection No. 5); that the mat, if it was placed, was not large enough and violated ASTM standards; the mat should cover the entire metal surface (objection No. 6).
Objection No. 7 addressed Solomon’s opinion that appellant’s description of the accident was consistent with the expected biomechanics of a fall accident occurring due to a slip mechanism; this opinion duplicated the subject of objection No. 2. Objection No. 7 was overruled.
Objection No. 8 addressed Solomon’s opinion that the lack of a mat or runner violated ASTM standards; this objection was sustained.
Objection No. 9 was that respondents had prior notice of a dangerous condition; this objection was overruled.
Finally, the court sustained objection No. 10, which addressed Solomon’s opinion that respondents did not use reasonable care to minimize the risk of injury.
The minute order that sets forth the trial court’s findings and conclusion acknowledges that appellant’s contentions are that: (1) there was no mat; and (2) if there was one, it was not large enough. The trial court than turned to Solomon’s declaration. The court found that Solomon’s reference to the “ASTM” standards was flawed because the “ASTM” document was not attached to Solomon’s declaration and, in any event, according to Solomon, these standards applied to interior walking surfaces only. The court went on to find that appellant “failed to provide any evidence that she slipped as a result of the difference in friction between the mat and the exposed metal area. In fact, it has at all times been Plaintiff’s position that there was no mat, so any difference in friction between a mat and a metal area is not relevant to this case.” The court concluded that appellant failed to raise a triable issue of fact “with respect to whether the area on which she fell was in a dangerous condition at the time of the accident.”
DISCUSSION
1. The Trial Court’s Ball Ruling Was Erroneous
It is true that “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, ” declarations submitted in opposition to the summary judgment motion that controvert these admissions may be disregarded. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 (D’Amico).) However, it is also true that “an uncritical application of the D’Amico decision can lead to anomalous results, inconsistent with the general principles of summary judgment law. We do not interpret the [D’Amico] decision, however, as saying that admissions should be shielded from careful examination in light of the entire record. A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.” (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482.)
Appellant’s confused answers during her deposition do not even amount to a “fragmentary and equivocal” concession that there was a mat on the metal plate. At most, her deposition answer was that she didn’t remember seeing any mats. Respondents’ brief accurately sums up the deposition testimony as “she could not recall whether she saw mats or yellow warning cones.” This is not the same as stating that there was a mat on the metal plate, which is the statement that would have actually controverted her declaration.
The conflict between appellant’s deposition and her declaration is whether she remembered seeing any mats. This conflict does not go to the heart of the matter, but rather to appellant’s ability to recollect past events. Nor is the conflict an unusual one. It is perfectly possible not to recall an event -- or, as in this case, the presence of an object -- but, upon reflection, recapture a memory thereof. Appellant’s differing answers on this issue can be expected to be the subject of cross-examination. The circumstance that this examination would go to appellant’s credibility confirms that the conflict is about ancillary issues, i.e., credibility and appellant’s ability to recollect. The conflict is not between a deposition statement that the mat was there, and a declaration that it wasn’t. But even if appellant’s equivocations about whether she remembered a mat reflect indirectly and adversely on her later statement that she saw no mats, “[a] summary judgment should not be based on tacit admissions.” (Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 482.)
The rule set forth in D’Amico must be administered with an understanding of its basis, which is that admissions “should receive a kind of deference not normally accorded evidentiary allegations in affidavits, ” especially when the admission is made “in the context of an established pretrial procedure whose purpose is to elicit facts.” (D’Amico, supra, 11 Cal.3d at p. 22.) It is the force of an admission, made in the setting of pretrial discovery with the benefit of counsel, that justifies disregarding a statement made in a later declaration filed in opposition to the summary judgment motion. But there clearly must be an admission of the existence (or non-existence) of a fact. There was no such admission in appellant’s deposition, merely a confused statement that appellant didn’t remember whether she saw any mats.
Absent the somewhat unusual situation where an admission made in the course of discovery is contradicted by a factual assertion in a declaration filed in opposition to a summary judgment motion, the rule is that facts alleged in a declaration filed in opposition must be accepted as true. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1558.)
Finally, we note that the cases and text writers agree that the D’Amico rule is to be handled cautiously, and confined to situations where the contradiction is clear and unambiguous, and where it is not explained by other facts and circumstances. (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶ 10:156.10, 10:156.15, p. 10-59 (rev. #1, 2006).)
In light of the foregoing, we conclude that the trial court’s Ball Ruling was in error. Accordingly, appellant’s declaration that there was no mat on the metal plate where she slipped is admissible evidence.
2. The Trial Court’s Rulings on Objection No.’s 4, 6 and 10 Were Erroneous
Initially, we note that the record as presently constituted does not contain any explanation or background on the “ASTM Standard Practice for Safe Walking Surfaces” referred to repeatedly in Solomon’s declaration. This flaw was expressly raised by respondents in their objection No.’s 5, 6 and 8. While experts may give testimony as to recognized and accepted standards on the issue whether those standards have been met or violated (see generally 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 62, pp. 606-607), there must of course be a foundation for this testimony. Absent any such foundation in the current record, the trial court’s rulings on the ASTM standards are correct.
The basis for Merchants’ objection No. 4 is that Solomon’s own testing revealed that the coefficient of friction on the metal plate when it was wet was between 0.63 and 0.66, and that this exceeded the recommended standard of 0.50. Merchants contended in its objection that this showed that the metal plate was “not unreasonably slippery, ” and that for this reason Solomon’s opinion lacked foundation and was speculative.
We begin with the fact that Solomon has a Ph.D. in engineering and asserts that he is an expert in risk assessment; respondents do not quarrel with this description or with Solomon’s qualifications. A person with Solomon’s expertise is qualified to give opinions on whether a proper mat with proper traction over the entire metal plate leading to the moving step on the escalator would have prevented appellant from slipping. “The defective condition of the floor, steps, or entrance to a building is a frequent subject of expert evidence.” (1 Witkin, Cal. Evidence, supra, Opinion Evidence, § 61, pp. 605-606 [citing multiple authorities].)
The fact that Solomon’s opinion is in conflict with respondents’ evidence regarding the coefficient of friction signifies nothing more or less than that, for the purposes of summary judgment, it is a disputed question of fact whether the metal plate was slippery. The weight and credibility of Solomon’s testimony is not relevant in determining whether the motion for summary judgment should have been granted. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) Also without merit is respondents’ claim that Solomon’s opinions are not supported by the evidence. There is no dispute about the location of the metal plate, nor about the fact that it rained that day and that the accident location was exposed to rain; Solomon’s opinions were based on these facts.
In objection No. 6, Merchants contended that Solomon’s references to the ASTM standards should be disregarded. For the reasons we have already stated, at this point in the litigation this objection was well taken. In objection No. 6, Merchants also contended that Solomon’s opinion that a mat that covered the entire metal plate should have been installed should be disregarded. This opinion does not refer to the ASTM standard. For the reasons we have stated in connection with objection No. 4, Solomon’s conclusion regarding the size of a mat was admissible evidence.
Finally, in objection No. 10 Merchants contended the opinion that the Mall did not exercise reasonable care to minimize the risk of injury was “[i]mproper expert opinion testimony.” “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.)
3. The Motion for Summary Judgment Should Have Been Denied
Given that the Ball Ruling, and that the trial court’s rulings on objection No.’s 4, 6 (in part) and 10 to Solomon’s declaration were erroneous, there are multiple questions of fact: (1) Was there a mat on the metal plate? (2) Would a mat have prevented appellant from slipping on the plate? (3) If there was a mat, was it large enough? While there may be additional issues of material fact, these suffice to require us to set aside the judgment.
4. Respondents’ Request To Dismiss the Appeal Is Denied
Respondents point out that appellant’s summary of the relevant facts does not contain a single citation to the record. Respondents are correct that this is a violation of rule 8.204(a)(1)(C) of the California Rules of Court and that such unsupported assertions of fact may be disregarded by the reviewing court. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.) We note that assertions of fact in the argument portion of the brief are supported by references to the record. This does not excuse appellant from presenting a properly supported statement of fact.
Respondents are also correct in pointing out that appellant filed a seriously defective appendix that is limited to documents generated by appellant, leaving it to respondents to prepare and file a Respondents’ Appendix that includes all of the relevant documents. Rule 8.124(g) of the California Rules of Court empowers the reviewing court to impose sanctions for failure to file an appendix that conforms to rule 8.124. Even though appellant is the prevailing party, we conclude that, in light of appellant’s multiple violation of the rules (see next paragraph), each party is to bear its own costs on appeal.
Finally, appellant failed to include in the opening brief a statement of interested parties or entities. Rule 8.208(c) required appellant to include this certificate in her brief, even though appellant filed such a certificate with the case information sheet.
In light of appellant’s substantial right to have her case heard and decided on the merits, we deny respondents’ request to dismiss the appeal for these multiple violations of the rules. However, we caution appellant’s counsel that violations of the rules of court may lead to sanctions imposed on counsel.
DISPOSITION
The judgment is reversed. The parties are to bear their own costs on appeal.
We concur: COOPER, P. J., BOLAND, J.