Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV063335
McAdams, J.
INTRODUCTION
Plaintiff and appellant Anzhong Chang fell from a ladder and injured his hand while repairing a garage door at the home of his friend, defendant and respondent Siqing Lu. Plaintiff sued defendant, asserting four causes, all based on negligence. The trial court granted defendant’s motion for summary judgment on the basis that the required elements of duty and breach could not be established. Plaintiff appeals from the judgment of dismissal, contending that duty and breach are factual issues that should have been left for the jury to decide. For the reasons stated below, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2004, while driving into his garage, defendant struck the back wall and damaged it. The collision caused the side door to the garage to be stuck in a half-open position.
As defendant’s friend, plaintiff came over to help repair the damage. Plaintiff offered to help with the door, and defendant gave him a ladder. Plaintiff took the ladder to the exterior side of the garage, opened it completely and positioned it just outside the stuck door on a cement pad. All four legs of the ladder rested on the cement, which was on a slight incline. Plaintiff had been to this area of defendant’s home earlier that day and on other days as well. Plaintiff shook the ladder to make sure it was stable. When he felt that it was, he began to climb, holding onto the ladder with his left hand and grasping a crowbar in his right. After two or three steps, the ladder slid back and to the left, folded, and then fell.
As a result of the accident, plaintiff’s dominant right hand was injured. He underwent numerous medical procedures, including three surgeries and partial amputation of his ring finger. He missed 34 days of work and suffered from phantom pain, cramping, decreased strength, tenderness, neuralgia, scarring, insomnia, and emotional distress. He can no longer type properly or play basketball with his son. He cannot play ping pong or use chopsticks as well as he could before the accident.
In May 2006, plaintiff filed suit against defendant. His complaint alleged that defendant was negligent because he provided an unstable ladder, failed to warn plaintiff about the ladder or the sloped cement, and failed to assist when plaintiff climbed the ladder. Plaintiff also alleged that defendant was negligent per se for violating both the California Contractors’ State License Law (Bus. & Prof. Code, § 7000, et seq.) and unspecified Santa Clara County building code ordinances.
Defendant moved for summary judgment on the ground that plaintiff could not establish duty, breach, or causation, which are required elements of a negligence claim. The trial court granted the motion, finding that defendant did not owe or breach any duty to plaintiff. Plaintiff appeals from the judgment entered after the motion was granted.
DISCUSSION
Plaintiff contends on appeal that the trial court should not have granted summary judgment on the issue of duty. Specifically, he argues that defendant owed him a duty because the risk of injury was foreseeable and that foreseeability in this case was a factual issue that should have been left for the jury to decide.
As a framework for assessing plaintiff’s contentions, we begin by summarizing the principles of law that govern our analysis.
I. Summary Judgment
A. General Principles
Any party to an action may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); see Aguilar, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve their dispute. (Aguilar, at p. 843.)
The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact ….” (Aguilar, supra, 25 Cal.4th at p. 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, at p. 851.) Defendants moving for summary judgment may satisfy their initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 853.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see, Aguilar, supra, 25 Cal.4th at p. 850.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Aguilar, at p. 856.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
B. Appellate Review
The grant of summary judgment is subject to de novo review on appeal. (Aguilar, supra, 25 Cal.4th at p. 860.)
“In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court.” (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431.) “First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Id. at p. 1432.)
II. Negligence
Plaintiff’s complaint asserts four causes of action, all sounding in negligence: (1) premises liability; (2) “Tortuous [sic] Exercise of Control and Safety Conditions & Equipment of Worksite”; (3) negligence; and (4) negligence per se.
“Actionable negligence is traditionally regarded as involving the following: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury.” (6 Witkin, Summary of Cal. Law (2005) Torts, § 835, p. 52.) The first element, duty, “may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.) Duty “is an essential element” of the tort. (Id. at p. 984.)
The existence of a legal duty “is a question of law to be resolved by the court.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397; accord, Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) “In the usual negligence case,” the other two elements “present questions of fact for the jury.” (6 Witkin, Summary of Cal. Law, supra, Torts, § 866, p. 93; cf. Harvey v. Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 822 [no breach of fiduciary duty as a matter of law].)
In the context of premises liability, the duty required of landowners is to maintain land within their possession and control in a reasonably safe condition. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 118-119; Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672; see generally, 6 Witkin, Summary of Cal. Law, supra, Torts, § 1119, p. 450.) Specifically, a landowner must (1) use reasonable care not to injure invitees by any negligent activity; (2) inspect the premises for dangerous conditions, and remedy or warn of them; and (3) control the conduct of third persons on the premises. (Wingard v. Safeway Stores (1981) 123 Cal.App.3d 37, 41.)
III. Analysis
As noted above, on appeal from a summary judgment, we engage in a three step process: “First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Bono v. Clark, supra, 103 Cal.App.4th at p. 1432.)
A. The Issues
In this case, it is undisputed that the accident occurred at defendant’s home while plaintiff was using defendant’s ladder. Accordingly, the issues framed by the pleadings relate to defendant’s duty of reasonable care. They are: (1) whether defendant’s duty to maintain his premises in a reasonably safe condition included a duty to remedy or warn of any dangerous condition presented by the ladder or the sloped cement; and (2) whether defendant breached his duty by providing the ladder, failing to warn, failing to hire a professional, or violating applicable statutes or ordinances.
Defendant sought summary judgment on the grounds that he owed no duty to warn or remedy because neither the ladder nor the inclined cement created a dangerous condition, and because his actions were not the cause of injury in any event.
B. Defendant’s Showing
In support of his argument that he owed plaintiff no legal duty, defendant offered evidence concerning both the ladder and the cement spot on his property where it was placed.
1. The Ladder
Plaintiff asked defendant for a ladder. Defendant gave him an aluminum ladder and then went back into his house, where he remained while plaintiff continued the repair. A photograph of the ladder at the accident scene shows that it was relatively short, having three steps before the topmost platform. When fully extended and placed beside the door, it reached approximately halfway up the doorjamb. The photograph does not reveal any defects, nor does it indicate that the ladder was used improperly.
Defendant declared that the ladder was in good working order. He had no knowledge of any defects, and he was not aware of anyone else ever having fallen from it. Plaintiff testified that he could not say affirmatively that there was something wrong with the ladder.
As this evidence demonstrates, any danger from the ladder was not reasonably foreseeable. “Foreseeability is a crucial factor in determining whether a defendant owes a duty of care.” (Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 895, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676.) But “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents.” (Martinez v. Bank of America, at p. 895, citing Ann M. v. Pacific Plaza Shopping Center, at p. 679.) Here, no such evidence was produced.
Defendant’s evidence constitutes a prima facie showing that the ladder had no obvious defects that would give rise to a duty on his part to warn plaintiff about it.
2. The Cement
Defendant presented evidence that the slight incline in the spot on the cement where the ladder was placed was a minor, trivial or insignificant defect. A slope or incline is not readily apparent from the photograph of the scene. All four legs of the ladder are resting on the cement. Plaintiff testified that he shook the ladder before climbing it, and it was stable.
“It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) “Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove.” (Ibid.) As this principle teaches, “ ‘persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.’ ” (Ibid., quoting Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399.) “What constitutes a minor defect is not always a mere question of fact.” (Whiting v. City of National City (1937) 9 Cal.2d 163, 165; see also, e.g., Caloroso v. Hathaway, at p. 927 [crack in sidewalk trivial as a matter of law]; Ursino v. Big Boy Restaurants, at p. 397 [same]; cf. Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 25 [“reasonable minds could differ as to whether this defect was trivial or open and obvious”].)
Applying this principle here, the trial court properly credited the defense evidence on this point as a prima facie showing that the slight incline was a minor, trivial or insignificant defect that did not trigger a duty to remedy or warn.
3. Other Bases for Liability
Plaintiff’s complaint does not allege any other factual basis for negligence liability; each cause of action, regardless of its label, is based upon defendant’s conduct in providing the ladder and failing to warn of either the ladder or the cement.
Nor does plaintiff offer any other legal basis for liability. In his fourth cause of action, plaintiff asserts a statutory claim for negligence per se. “Where a statutory standard establishes the defendant’s duty, ‘proof of the defendant’s violation of a statutory standard of conduct raises a presumption of negligence that may be rebutted only by evidence establishing a justification or excuse for the statutory violation.’ ” (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218, quoting Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547.) “This rule, generally known as the doctrine of negligence per se, means that where the court has adopted the conduct prescribed by statute as the standard of care for a reasonable person, a violation of the statute is presumed to be negligence.” (Spates v. Dameron Hosp. Assn., at p. 218.) Here, however, plaintiff does not identify the particular statute or ordinance allegedly violated. That places his statutory claim on the same legal footing as his other negligence claims, which all depend factually on allegations concerning the ladder and the cement.
As just explained, the record contains prima facie evidence that no dangerous condition existed with respect to the ladder or the cement; thus, the scope of defendant’s duty to maintain his premises in a reasonably safe condition did not include a duty to warn about or remedy either item. Accordingly, defendant’s conduct in failing to warn, to hire a professional, or to further stabilize the ladder was not a breach of duty.
By demonstrating the absence of a duty with respect to either the ladder or the cement, defendant carried his prima facie burden as to all four causes of action. The burden thus shifted to plaintiff to raise a triable issue of material fact.
C. Plaintiff’s Opposition
Plaintiff argued that defendant had a duty to warn him regarding proper use of the ladder, because it bore a warning label cautioning the user against standing on the topmost platform, which defendant knew of prior to the accident but failed to communicate to plaintiff. Plaintiff also asserted that defendant was aware of the cement’s incline but failed to warn him of it.
1. The Ladder
In support of his argument that defendant should have warned against standing on the topmost platform of the ladder, plaintiff submitted portions of defendant’s deposition testimony, though not all of the cited pages are included in the appellate record. At his deposition, defendant stated that he was aware of the warning label but did not read it every time he used the ladder, and that he thought that the ladder was safe. Defendant further stated that when he gave the ladder to plaintiff, he did not inform him of the warnings that were under the topmost platform. Plaintiff’s evidence does not disclose the contents of the warning sticker.
Even when construed most favorably to plaintiff, this record contains no evidence of conduct that would bring the warning into play, as it does not show or even suggest that plaintiff had ascended to the topmost step, that defendant was aware that he might, or that using the ladder in this manner caused the accident.
Furthermore, the underlying danger would have been equally obvious to all users. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” (Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 90; see also Pittman v. Pedro Petroleum Corp. (1974) 42 Cal.App.3d 859, 863 [the danger of falling from a ladder is familiar to both children and adults].)
2. The Cement
Plaintiff also presented evidence that defendant was aware of the cement’s slight incline but failed to warn him of it. Again, however, nothing in the record suggests that the cement constituted, caused, or contributed to a dangerous condition.
Furthermore, as with the ladder, there is no evidence that the incline in the cement was concealed from plaintiff. As explained above, where a hazard is obvious, there is no duty to warn. (Marshall v. United Airlines, supra, 35 Cal.App.3d at p. 90.) On the other hand, “the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184; see also, Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 672.) Here, however, plaintiff presented neither evidence nor argument supporting a duty to remedy.
In sum, plaintiff’s evidence did not raise a triable issue on the question of duty, and defendant’s summary judgment motion thus was properly granted.
3. Other Bases for Liability
Plaintiff’s appellate contention that an increased duty should be imposed because of the parties’ special relationship is untenable. He has not alleged any special relationship recognized by law to trigger an increased duty. “The special relationship situations generally involve some kind of dependency or reliance.” (Olson v. Children’s Home Society (1988) 204 Cal.App.3d 1362, 1366.) By contrast, the evidence in this case shows that plaintiff came over to the house voluntarily, as a friend, in order to repair the damage to the garage. Those facts do not warrant application of the special relationship doctrine. Since plaintiff neither pleaded facts nor proffered evidence to support this contention, it is not among the issues framed by the pleadings and thus warrants no consideration here.
Plaintiff also offers lengthy arguments regarding foreseeability under a Rowland v. Christian analysis. (Rowland v. Christian, supra, 69 Cal.2d 108.) But those arguments merely restate the ultimate question presented by this appeal, which is whether it was reasonably foreseeable that a person using a similar ladder under similar circumstances would fall. We conclude that it was not, because the undisputed facts demonstrate that neither the ladder nor the cement were inherently defective and because any risk presented by either (or both in combination) would have been equally obvious to plaintiff. Thus, the scope of defendant’s duty of reasonable care did not include a duty to warn or remedy.
CONCLUSION
The issue of duty was properly determined by summary judgment, without proceeding to jury trial. As explained above, the existence and scope of a defendant’s duty is a question of law for the court. (See, e.g., Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 614.) The trial court did not err in determining that question adversely to plaintiff here, because the circumstances presented by this record do not support the imposition of a duty either to warn or to remedy.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.