Opinion
H049432
11-15-2023
SALVADOR LOPEZ, Plaintiff and Appellant, v. COOPERAGE DEVELOPMENT COMPANY, Defendant and Respondent.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19CV352850
Wilson, J.
Salvador Lopez was severely injured while working at a San Jose warehouse owned by defendant Cooperage Development Company (Cooperage). According to Lopez, he was in the attic removing cleaning supplies as directed by his employer, Pine Building Maintenance, LLC (Pine), a tenant of Cooperage. Lopez's next memory was waking up on the floor underneath the attic, bleeding, bruised and covered in broken ceiling tiles. He sued Cooperage for negligence and premises liability, alleging that he fell through a portion of the attic floor which, unlike the rest of it, was not covered in plywood but instead consisted only of non-weight-bearing ceiling tiles covered and obscured by insulation.
Cooperage moved for summary judgment, arguing that Lopez could not establish causation because he admitted he had no recollection of falling and there were no witnesses. In addition, Cooperage argued the alleged dangerous condition was "open and obvious" and Lopez had no right to be in the attic, so Cooperage owed Lopez no duty to remedy or warn of the condition.
The trial court granted the motion, holding that Lopez could not establish causation as a matter of law because there was no direct evidence and Lopez's circumstantial evidence was too speculative to support a reasonable inference that he fell through the attic as alleged.
We conclude there are triable issues of material fact as to the challenged elements of causation and duty. Accordingly, we reverse.
I. Factual and Procedural Background
We draw the facts recited here from the parties' separate statements of undisputed material facts, evidence admitted in conjunction with the motion for summary judgment, and admissions in the parties' appellate briefs. (Kim v. County of Monterey (2019) 43 Cal.App.5th 312, 316 (Kim).)
A. Unit 65 and the attic
Lopez began working as a janitorial supervisor for Pine in October 2017. Pine is a janitorial services company owned and run by Edgar Cabrales, Sr. Lopez reported to Cabrales, Sr. and his son, Edgar Cabrales, Jr., who worked for Pine handling administration, estimates and proposals.
Pine's warehouse and office were located at Unit 65 on Mabury Road in San Jose (Unit 65), which it had been leasing from Cooperage, a commercial landlord, since 2006. Unit 65 was roughly 1,000 square feet and included an office with space for two cubicles, as well as a 200-foot warehouse portion. It also contained a 400-square-foot loft or open attic (attic) above portions of the office and warehouse spaces. A wooden ladder had been affixed to a wall from the ground floor, which provided the only access to the attic.
The attic "floor" consisted of non-weight-bearing ceiling tiles over the entire portion, which was then mostly covered with plywood except for a 100-square-foot area above the entryway to the office. The ceiling tiles in that 100-square-foot area were covered instead with pieces of insulation. The attic contained a water heater, HVAC unit, and some wires and cables that ran from the ceiling to the attic floor. Lopez contends that during his employment with Pine, the attic was used regularly to store various janitorial items such as mops, hoses, bags, buckets and paint. The Cabraleses testified that nothing was stored in the attic.
A few days after the accident, a worker's compensation representative took pictures of the area, showing the words "no storage above" stenciled on the outside of the walls below the attic. The parties dispute whether the words were on the walls at the time of the accident-Cooperage contends they were, while Lopez insists they were not.
B. The accident
On March 29, 2018, Lopez was working the night shift in Unit 65 by himself. That particular night, he claims, he was cleaning the attic and removing unwanted items such as old mopping containers, cleaning chemicals, supplies and trash to make room for new items to be stored, as directed by his supervisors. The Cabraleses testified that they never told Lopez to go into the attic and that there was nothing in the attic to remove. Lopez's last memory from that evening is tossing some of the unwanted items from the attic to the floor below.
His next memory is waking up dizzy, lying on the floor of the office entryway, seeing blood and broken ceiling tiles that had fallen from the attic. Lopez has no recollection of getting up from the floor and leaving, although he believes he may have driven himself home. According to his wife, Lopez arrived at their house sometime in the morning on March 30, 2018, and lay down on the bed, but could not explain why his head was bruised and bloodied or what had happened to him.
Lopez's wife then contacted Cabrales, Jr. to ask if he knew what had happened. Lopez's wife took photos of his head that morning, showing a large bloody bruise near the top of his head and bleeding from his ear. Lopez then went to the hospital, where he remained for approximately one month with a blood clot in his brain, a fractured shoulder blade, lost hearing, a facial fracture, and injuries to his lower back and right knee.
After speaking to Lopez's wife, Cabrales, Jr. went to Unit 65, where he saw broken ceiling tiles on the floor and a puddle of blood about six inches wide on the carpet in the office entryway. Based on what he saw and had heard from Lopez's wife, Cabrales, Jr. concluded that Lopez had fallen through the area of the attic with no plywood and only insulation covering the ceiling tiles. Cabrales, Jr. then began cleaning up, but did not take any pictures.
C. The pleadings
Lopez filed a complaint against Cooperage on August 2, 2019 (complaint), alleging causes of action for negligence and premises liability. Specifically, he alleged that Cooperage "negligently owned, controlled, supervised, managed, designed, constructed, maintained and/or operated [Unit 65] so as to cause and/or allow a dangerous condition to exist on the property which proximately caused Plaintiff to fall through the ceiling of the subject premises, and land on the ground, resulting in substantial injuries and damages to Plaintiff." Further, Lopez alleged that Cooperage knew or should have known of the dangerous condition but failed to provide adequate warnings or remedy "such conditions." Lopez also alleged Cooperage failed to have in place adequate and reasonable policies and procedures regarding the control, maintenance, and inspection of the premises, and failed to adequately train, supervise, and/or monitor its employees and/or agents, as a direct and proximate result of which, Lopez suffered and would continue to suffer, severe injuries and damages.
Cooperage filed its answer on December 18, 2019, in which it issued a general denial and 21 affirmative defenses.
Cooperage also filed a cross-complaint on the same date, naming Pine, the Cabraleses and others as defendants, alleging breach of contract and seeking indemnification. The cross-complaint is not at issue in this appeal.
D. Cooperage's motion for summary judgment
Cooperage moved for summary judgment on April 1, 2021. It argued that Lopez cannot prove the causation element of his causes of action because he has no memory of the accident. According to Cooperage, because Lopez admits that he does not know how or where he fell, and there were no witnesses, he cannot prove causation, which necessarily defeats his causes of action.
Cooperage also argued that, even if Lopez could establish causation, summary judgment was warranted because the alleged dangerous conditions were clear and obvious, and Lopez had no right to be in the attic. According to Cooperage, an adult such as Lopez working at an elevated level "cannot characterize the edge of the work area as a concealed preexisting hazard," relying on Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209 (Gravelin).
Cooperage argued that the edge of the plywood and the section with no plywood were "clearly visible," and that" '[where] a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition,'" quoting Krongos v. Pacific Gas &Electric Co. (1992) 7 Cal.App.4th 387, 393 (Krongos). It also argued that the lack of a guardrail around the attic and the section without plywood only became hazardous when Lopez went into the attic. Lastly, Cooperage argued that Lopez "had no right" to be in the attic because of the "no storage above" signs. Accordingly, Cooperage claimed, as the landlord, it was under no duty to remedy or warn against any dangerous conditions.
In support of its arguments and factual assertions, Cooperage submitted evidence consisting of Lopez's deposition transcript, Cooperage's lease with Pine for Unit 65, photos of the attic taken after the accident, and Lopez's discovery responses.
E. Lopez's opposition
Lopez argued that Cooperage was not entitled to summary judgment on causation merely because his fall resulted in amnesia. He contended there was ample circumstantial evidence of causation to establish a triable issue of material fact. For instance, Cabrales, Jr. had testified regarding Lopez's injuries, his conversation with Lopez's wife, his observations of Unit 65 the morning after the accident, including the pool of blood and broken ceiling tiles, and his conclusion that Lopez had fallen through the portion of the attic with no plywood. Cabrales, Sr. similarly testified that he reached the same conclusions when he observed Unit 65 later that morning. Also, Lopez argued that his injuries were consistent with those sustained by falling through the roof in that location. As he explained, if the Cabraleses could reach the conclusion that Lopez fell through the portion of the attic with no plywood, a reasonable juror could as well.
Lopez also argued there was a triable issue of material fact as to whether he was allowed to be in the attic on the night of the accident. He cited his own testimony that the Cabraleses had asked for his help retrieving items from the attic since he began working for Pine; that they had told him "the building" allowed them to store unused items in the attic; that he had observed the attic actually being used for storage of mops, containers, brooms, hoses, bags, trash, and other cleaning materials, some of which were located near the area covered only with insulation; and that the Cabraleses had specifically told him on multiple occasions to bring down the rest of the items from the attic when he had time. Although Lopez acknowledged that Cabrales, Jr. had testified the attic was empty the night of the accident, he argued it created a disputed issue of material fact, and the jury could decide whether to believe his version of events, or Cabrales, Jr.'s testimony that Lopez was "wandering around a dark attic at night for no reason."
Lastly, Lopez argued that the dangerous condition in the attic was concealed by insulation and darkness and therefore was not "open and obvious." Specifically, he noted that the attic had no lights at the time of the accident, which took place at night. In addition, the insulation covering the ceiling tiles with no plywood created a "false floor" that was impossible to see by anyone standing in the attic. As he explained, the "unsecured setup of the insulation batts that were laid on top of the suspended ceiling and flush with the plywood roof constituted a trap for anyone that climbed up on the fixed ladder and onto the office roof," and "the insulation batts would have been exposed to the same dust buildup that would have camouflaged the dangerous condition of the suspended ceiling that was not capable of supporting heavy loads."
In support of these arguments and factual assertions, Lopez submitted evidence consisting of: deposition transcripts for him, the Cabraleses, and Cooperage's person most qualified; corresponding exhibits from those depositions, including pictures of Unit 65 and the attic, an incident report written by Cabrales, Jr., and the lease between Pine and Cooperage; relevant discovery, including Lopez's responses to form interrogatories; Lopez's declaration and photos of his head and face taken by his wife the morning after the accident; and a declaration from civil engineer Brad Avrit, Lopez's retained safety and liability expert, who opined that Lopez fell through non-load-bearing ceiling tiles in the attic and sustained significant injuries as a result.
Lopez also submitted a response to Cooperage's separate statement of material facts. Among other things, Lopez disputed that the "no storage above" signs were on the walls at the time of the accident, noting that the pictures of the signs submitted by Cooperage were taken after the accident.
F. Cooperage's reply
In reply, Cooperage reiterated the arguments set forth in its motion and contended Lopez had admitted in his opposition that he cannot establish his injuries resulted from the alleged dangerous conditions because he provided no percipient testimony regarding the accident. In addition, it argued Lopez "cannot avoid summary judgment by claiming that the small area without plywood flooring was not obvious because it was covered with insulation because [he] cannot tie his fall to the gap in plywood flooring in the first place."
Notably, Cooperage did not respond to Lopez's separate statement of undisputed facts. Instead, it stated that "Cooperage wishes to emphasize that the fact that it is not responding to Plaintiff's additional facts does not mean that it concedes the undisputed character of the facts asserted by Plaintiff." Cooperage also argued that Lopez's separate statement of 102 facts constituted abuse and an attempt to "render disposition of [the] summary judgment motion[] inconvenient for the trial court."
G. The trial court's ruling
The hearing on Cooperage's motion was held on August 3, 2021. On August 4, 2021, the trial court issued its order granting the motion (order). It held Cooperage had met its initial burden of establishing "through admissible evidence, including Plaintiff's deposition testimony and Plaintiff's responses to written discovery[] that Plaintiff has no evidence to suggest that his injury was proximately caused by any act or failure to act by Defendant."
The court then held that Lopez had failed to carry his burden of establishing a triable issue of material fact. According to the trial court, the circumstantial evidence Lopez submitted did not support a reasonable inference that any act or failure to act by Cooperage proximately caused Lopez's injuries. The court explained that the Avrit declaration did not assist Lopez because it improperly sought to expand the issues pleaded in the complaint by opining that Cooperage had violated the California Building Code and Cal-OSHA orders. In addition, the court stated that Avrit could not bridge the analytical gap to proximate causation of Lopez's injury without speculating, "and an expert's speculation on causation has no value."
Judgment was entered on September 3, 2021. Lopez timely appealed.
II. Discussion
Lopez argues on appeal that the trial court erred by: (1) holding Cooperage "acted reasonably," and failing to acknowledge that Cooperage had a duty to inspect the property upon leasing it to Pine; (2) finding no negligence as a matter of law when it determined Lopez had failed to show Cooperage acted unreasonably as a commercial landlord, because it was undisputed Cooperage never conducted a safety inspection of Unit 65, repaired the false floor, or warned Pine or anyone else of it; (3) finding no proximate causation as a matter of law; and (4) denying Lopez's alternative request for additional discovery, a continuance of the hearing, and additional briefing before granting summary judgment on grounds not advanced in Cooperage's motion.
Cooperage argues the trial court was correct in every respect and this court should reach the same determinations in its de novo review. Specifically, it contends that: (1) the trial court did not base its order on any grounds not raised in Cooperage's motion; (2) the trial court properly excluded the Avrit declaration because it was based on issues not set forth in the complaint; (3) Lopez admitted he had no memory of falling through the attic, so he could not establish the causation element of his causes of action; (4) Lopez's injuries allegedly resulted from an obvious danger, so the fact his employers improperly instructed him to work there proves their negligence, not Cooperage's; (5) because Lopez was not supposed to be in the attic, Cooperage cannot be liable for the failure to warn of a dangerous condition; and (6) the trial court properly denied Lopez's request for additional discovery, briefing, and an extension.
A. Summary judgment principles and standard of review
Where a defendant has prevailed on summary judgment,"' "we review the record de novo to determine whether [it has] conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." '" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler); see also, Genisman v. Carley (2018) 29 Cal.App.5th 45, 49 [defendant moving for summary judgment bears" 'the burden of showing that . . . one or more elements of the cause of action cannot be established' "].) The moving defendant "bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) Upon a defendant's prima facie showing of the nonexistence of such an element, the plaintiff "is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.)
Like the trial court, in undertaking our independent review," '[w]e examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party's favor, and (3) the opposition-assuming movant has met its initial burden-to "decide whether the opposing party has demonstrated the existence of a triable, material fact issue." '" (Kim, supra, 43 Cal.App.5th at p. 323, quoting Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)"' "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." '" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347, quoting Hartford Casualty Insurance Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286; see also Aguilar, supra, 25 Cal.4th at p. 843 [court must consider all of the evidence and all of the inferences reasonably drawn therefrom and must view such evidence and inferences in the light most favorable to the opposing party].)
B. Applicable law
As noted above, Lopez alleged causes of action for negligence and premises liability. The elements of a negligence claim are: a legal duty of care, breach of that duty, causation, and damages. (Colonial Van &Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 496, citing Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 (Kesner).) The elements of a cause of action for premises liability are the same. (Kaney v. Custance (2022) 74 Cal.App.5th 201, 214 (Kaney), citing Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) "Premises liability is a form of negligence based on the holding in Rowland v. Christian [(1968)] 69 Cal.2d 108 and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence." (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) For liability to attach, the owner must also have had actual or constructive knowledge of the dangerous condition in sufficient time to correct it, but failed to take reasonable steps to do so. (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431.)
Causation-one of the two elements at issue in this appeal-is ordinarily a question of fact which cannot be resolved by summary judgment. (Kaney, supra, 74 Cal.App.5th at p. 212.) The issue may be resolved as a question of law" 'only if, under undisputed facts, there is no room for a reasonable difference of opinion.'" (Id., quoting Kurinji v. Hanna &Morton (1997) 55 Cal.App.4th 853, 864.) However, "causation must be established by nonspeculative evidence." (Saelzler, supra, 25 Cal.4th at p. 774.)
" 'Although a finding of causation may not be based on mere speculation or conjecture, such finding may be predicated on reasonable inferences drawn from circumstantial evidence.'" (City of Modesto v. Dow Chemical Co. (2018) 19 Cal.App.5th 130, 153 (City of Modesto), quoting Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780.)" 'Causation may in many instances be inferred from evidence that does not itself constitute direct evidence of reliance on an individual basis.'" (City of Modesto, supra, 19 Cal.App.5th at pp. 153-154, quoting State ex rel. Wilson v. Superior Court (2014) 227 Cal.App.4th 579, 608 (Wilson).)
With respect to duty-the other element of Lopez's causes of action at issue in this appeal-the basic policy of this state set forth in Civil Code section 1714 is that everyone has a duty to use ordinary care to avoid injuring others. (Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, 498; Civ. Code § 1714, subd. (a).) A landlord owes a duty of care to a tenant and the public to provide and maintain safe conditions on the leased premises. (Kaney, supra, 74 Cal.App.5th at p. 214; see also Gravelin, supra, 200 Cal.App.4th at pp. 1214-1215 ["' "proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of [the] property [the possessor] has acted [reasonably] in view of the probability of injury to others....."' "].)
The existence and scope of a duty are ordinarily questions of law to be decided by the court. (Cabral v. Ralph's Grocery Co. (2011) 51 Cal.4th 764, 770-771.) "Whether a duty should be imposed on a defendant depends on various policy considerations known as the Rowland factors." (Montes v. Young Men's Christian Association of Glendale (2022) 81 Cal.App.5th 1134, 1140 (Montes), citing Rowland, supra, 69 Cal.2d at pp. 112113.) Chief among those factors is the foreseeability of harm to another. (Montes, supra, 81 Cal.App.5th at p. 1140, citing Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.) A reviewing court examines" 'whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.'" (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 (Jacobs), quoting Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 459-460.)
Foreseeability is generally absent when a dangerous condition is "open and obvious." (Montes, supra, 81 Cal.App.5th at p. 1140, citing Jacobs, supra, 14 Cal.App.5th at p. 447.) If a danger is" 'so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.' [Citation.] In that situation, owners and possessors of land are entitled to assume others will 'perceive the obvious' and take action to avoid the dangerous condition." (Jacobs, supra, 14 Cal.App.5th at p. 447.)
Although the existence of a duty is ordinarily a question of law, whether a particular dangerous condition is "open and obvious" is generally a question of fact determined by weighing the evidence. (See, e.g., Zuniga v. Chery Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 995 (Zuniga); Summer J. v. United States Baseball Federation (2020) 45 Cal.App.5th 261, 275 [question of fact whether danger of injury from foul balls was sufficiently obvious to relieve defendant of its duty to warn]; see also Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665 [" 'obvious danger' exception to a landowner's ordinary duty of care is in reality a recharacterization of the former assumption of the risk doctrine . . . [which] has now been merged into comparative negligence"].)
C. Analysis
1. Causation
As a threshold matter, we determine that Lopez has not challenged whether Cooperage carried its initial burden of making a prima facie showing no causation. In its summary judgment motion, Cooperage argued that Lopez could not establish causation as a matter of law because he admitted he could not remember falling through the attic, and there was no direct evidence of any such fall. Cooperage presented evidence of Lopez's deposition testimony and discovery responses in which he admitted to those facts. In addition, Cooperage noted that Lopez's complaint did not include any specific details or allegations regarding the accident beyond the statement, "Plaintiff fell through the ceiling of the subject premises, landed on the ground, causing substantial injuries and damages."
In his opposition, Lopez did not contend that Cooperage had failed to carry its initial burden. Instead, he argued the motion should be denied because Lopez himself had "presented direct evidence and reasonable inferences from that evidence to contradict Defendant's evidence." In other words, Lopez argued that the evidence he presented in support of his opposition-his declaration, pictures of his head, the Cabraleses' depositions, and the Avrit declaration-created a triable issue of material fact.
On appeal, Lopez argues for the first time that "the burden on this issue should never have been shifted to [him] because the only issue[] on which [Cooperage] moved for summary judgment was the question of whether Mr. Lopez actually fell where he alleged he did," and that "so-called 'proximate causation' was not a part of the Motion." To the extent Lopez seeks to draw a distinction between the ground on which Cooperage moved and the ground on which the trial court determined Cooperage had carried its initial burden, we reject the argument. Cooperage's motion expressly argued that Lopez's causes of action fail as a matter of law because he "admitted that he cannot prove causation," and that 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 an injury,'" quoting Kesner, supra, 1 Cal.5th at p. 1158. Moreover, that argument squarely addressed Lopez's own allegations in the complaint that the dangerous conditions "proximately caused" Lopez to fall through the ceiling and land on the ground. Beyond this argument, Lopez does not otherwise challenge the evidence Cooperage presented in support of its motion or argue that it was insufficient to carry its burden.
In any event, as we explain herein, we determine there is a triable issue of material fact on this element because Lopez submitted evidence from which a reasonable trier of fact could conclude that the alleged dangerous condition of the false floor caused the accident.
As set forth above, a finding of causation may be predicated on reasonable inferences drawn from circumstantial evidence. (City of Modesto, supra, 19 Cal.App.5th at p. 153.) In some instances, causation may be inferred" 'from evidence that does not itself constitute direct evidence of reliance on an individual basis.'" (Id. at pp. 153-154, quoting Wilson, supra, 227 Cal.App.4th at p. 608.) The record here contains such circumstantial evidence from which causation may be inferred. For instance, Lopez himself testified in his deposition that he remembered being in the attic removing items pursuant to the Cabraleses' instructions. He also remembered waking up lying on the floor directly underneath the attic where he had been working, feeling dizzy and seeing blood and broken ceiling tiles that had fallen. Lopez further testified that his wife found him at their house sometime in the morning on March 30, 2018, lying down on the bed, bruised and bloodied. Lopez also submitted a declaration and pictures of his head taken by his wife that depicted bleeding and a large bloody bruise on his head.
In addition, Lopez submitted excerpts from the Cabraleses' depositions. Cabrales, Jr. testified that Lopez's wife had contacted him the morning after the accident and described Lopez's condition. Cabrales, Jr. then went to Unit 65, where he saw broken ceiling tiles on the floor and the puddle of blood on the carpet. Based on his observations, Cabrales, Jr. concluded that Lopez had fallen through the area of the attic with no plywood, where the insulation covered the ceiling tiles.
Cabrales, Sr. similarly testified that he concluded-based on his observation of the broken ceiling tiles and blood on the carpet directly beneath the portion of the attic not covered by plywood, and on Lopez's injuries which he saw in the hospital the day after the accident-that Lopez had fallen through the attic to the floor below.
Lastly, Lopez submitted the declaration from Avrit, his safety and liability expert, who opined that Lopez fell through non-load-bearing suspended ceiling tiles in the attic to the floor below. Avrit stated: "Based on my background, training and experience, the suspended ceiling tile system at the attic level was not weight bearing, and anyone stepping or falling onto the ceiling tiles would fall through to the ground floor below (as experienced by the Plaintiff). Directly below the false ceiling level is the lobby floor area of the office suite. Additionally, there was insulation distributed on top of the false ceiling and underneath the wooden flooring, which exacerbated and/or masked the false ceiling underneath. Specifically, the ceiling tiles at the various areas throughout the attic including the incident area, were not sufficient to support the weight of Mr. Lopez, and he fell through the dropped ceiling tiles onto the floor of the room area nearly 9 feet below and suffered significant injuries."
Lopez argues the trial court abused its discretion "in rejecting the Avrit declaration in its entirety as 'speculative' and on the ground that Appellant did not plead OSHA violations in the complaint." Cooperage asserts that the trial court's "exclusion of portions of Mr. Avrit's declaration was an evidentiary ruling...." However, the record does not reflect that the trial court made an evidentiary or discretionary ruling regarding the declaration. Instead, it shows only that the trial court determined the declaration was speculative and therefore insufficient to create a triable issue of material fact as to causation; nor is there any indication that Cooperage submitted evidentiary objections to the declaration. Because we independently consider all of the evidence presented to the trial court, including the Avrit declaration, the trial court's treatment of it in that regard is immaterial here. (Aguilar, supra, 25 Cal.4th at p. 843; see also Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451-1452 ["we consider all the evidence set forth in the moving and opposition papers except that to which objections have been made and properly sustained"].) Moreover, the Avrit declaration was not necessary to raise a triable issue as to causation here because whether the false floor caused Lopez to fall was within common knowledge and expert testimony is not required. (Kaney, supra, 74 Cal.App.5th at p. 217.)
Cooperage did not dispute any of this evidence. As noted above, Cooperage did not respond to Lopez's separate statement of undisputed facts-accordingly, we consider those facts conceded as undisputed for purposes of summary judgment. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 747.)
Kaney is instructive. In that case, the plaintiff remembered being on a stairway and then waking up in pain, but with no memory of having fallen. (Kaney, supra, 74 Cal.App.5th 201.) The trial court concluded that her inability to remember the fall meant that she lacked nonspeculative evidence of causation. (Id. at p. 217.) The court of appeal reversed, holding that "[a] slip-and-fall plaintiff need not remember her fall to recover damages provided the evidence gives rise to a reasonable and probable inference that the defendant's negligence was a substantial contributing factor." (Ibid., citing Leslie G. v. Perry &Associates (1996) 43 Cal.App.4th 472, 483 (Leslie G.).)
The court analogized to cases in which the plaintiffs could not remember their falls, but the circumstantial evidence led to reasonable and probable inferences that each had fallen from a height due to the absence of adequate barriers that would have restrained them. (Kaney, supra, 74 Cal.App.5th at p. 219, citing Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720, Schumann v. C.R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309.) In the Kaney court's view, "a trier of fact could draw a reasonable and probable inference in the plaintiff's favor that she fell on the stairs based on her testimony that she remembers being on the stairs and waking up on the floor in pain." (Kaney, supra, 74 Cal.App.5th at p. 220.) The evidence, the court concluded, "would permit a trier of fact to draw a reasonable and probable inference that the dangerous condition of the stairs was a substantial factor in the fall." (Ibid.)
The same is true here, where Lopez testified to being in the attic, waking up directly below it in pain, and seeing broken ceiling tiles and blood. In addition, the Cabraleses testified that they observed the broken ceiling tiles, blood on the carpet, and Lopez's injuries, and concluded that he had fallen through the false floor portion of the attic. That evidence would permit a trier of fact to draw a reasonable and probable inference that the alleged dangerous condition of the false floor caused Lopez to fall, notwithstanding that Lopez has no memory of it.
Cooperage characterizes Lopez's causation argument as" 'mere speculation and conjecture,'" quoting Leslie G. We disagree. Lopez introduced actual evidence from which the inferences favorable to him-that he fell through the attic-are more reasonable and probable than those against him. (See, e.g., Leslie G., supra, 43 Cal.App.4th at p. 483.) Cooperage concedes that Lopez's theory of causation is "one scenario for the broken ceiling tile and blood," but argues that other possible explanations are equally plausible. For instance, Cooperage posits, perhaps Lopez was carrying items across the attic and tripped, propelling an item forward and breaking the ceiling tile, after which Lopez, although injured, could have made his way down the ladder and lost consciousness in the area of the broken tile. Alternatively, perhaps Lopez surprised an intruder and used a mop or broom to defend himself, thereby dislodging the ceiling tile and causing it to break. But the evidence discussed above does not make such inferences more reasonable and probable than Lopez's theory. Lopez's injuries were extreme and more consistent with falling through the attic than with tripping. In addition, there is no evidence in the record of an intruder.
A reviewing court must draw from the evidence all reasonable inferences in the light most favorable to the party opposing summary judgment. (Kaney, supra, 74 Cal.App.5th at p. 213; Caliber Paving Co. v. Rexford Industrial Realty Management, Inc. (2020) 54 Cal.App.5th 175, 190 ["we liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts about the evidence in that party's favor"].) Applying these standards here, we conclude there is a triable issue of material fact as to causation.
2. Duty
Cooperage also argued in its motion that, even if Lopez could establish causation, summary judgment was warranted because the alleged dangerous condition was clear and obvious and Lopez had no right to be in the attic. These arguments address an aspect of the duty element of Lopez's causes of action. As set forth above, if a danger is open and obvious, the landowner is under no further duty to remedy or warn of the condition. (Jacobs, supra, 14 Cal.App.5th at p. 447.)
Lopez argues that the trial court improperly based its order on duty, despite Cooperage not having raised that argument in its summary judgment motion. Although, contrary to Lopez's argument, we do not construe the trial court's order as having reached this issue, we nevertheless resolve it here because we review the moving and opposition papers de novo, Cooperage did raise the issue in its motion, and the parties have fully briefed the issue on appeal. (See, e.g., Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 873 [appellate court not bound by trial court's stated reasons for ruling, and reviews only the ruling and not its rationale].)
As with the causation element, Lopez does not contend that Cooperage failed to carry its initial burden-instead, he argues he carried his burden of establishing a triable issue of material fact. We agree. In his opposition to Cooperage's motion, Lopez submitted evidence showing that the attic had no lights and the insulation covering the ceiling tiles with no plywood created a hidden false floor. Specifically, he explained in his discovery responses that the "unsecured setup of the insulation batts that were laid on top of the suspended ceiling and flush with the plywood roof constituted a trap for anyone that climbed up on the fixed ladder and onto the office roof." Further, he stated, "in summary, it was the combination of the unguarded/exposed non weight bearing surface (suspended ceiling tile system) at a foreseeable work area, and the concealed nature of the substantial fall hazard that ultimately resulted in the injury to Plaintiff. Any person working at/or near the work office roof level was fully exposed to the fall hazard of the non-weight bearing ceiling tiles."
Liberally construing this evidence in the light most favorable to Lopez, we conclude it creates a triable issue of material fact as to whether the alleged dangerous condition of the false floor was open and obvious. A reasonable trier of fact could conclude that the absence of plywood over the ceiling tiles was concealed by insulation and lack of light, so that a person could not reasonably be expected to see it and the condition itself did not serve as a warning. (Jacobs, supra, 14 Cal.App.5th at p. 447; Zuniga, supra, 61 Cal.App.5th at p. 995.)
Cooperage does not identify any evidence in support of its position or even explain how or why the alleged dangerous condition was "clear and obvious." In its summary judgment motion, Cooperage analogized to Gravelin, in which an independent contractor was injured when a roof extension collapsed while he was installing a satellite dish on the homeowner's roof. (Gravelin, supra, 200 Cal.App.4th 1209.) The court of appeal held that the unsuitability of the roof extension for use as an access point was "open and obvious," so summary judgment on that basis was warranted. (Id. at p. 1216.) The court specifically relied on the evidence showing the roof extension to be a small, tiled structure placed between the main roof and a carport roof, as well as the plaintiff's own description of the extension as an awning no more than four square feet made of plywood and supported by two-by-fours. (Id. at p. 1217.) By contrast here, the evidence would allow a reasonable trier of fact to conclude that the alleged dangerous condition was not open and obvious, and Cooperage has identified no evidence to support its position. (Jacobs, supra, 14 Cal.App.5th at p. 447; Zuniga, supra, 61 Cal.App.5th at p. 995.)
On appeal, Cooperage declares that "the edge of the plywood mezzanine is clearly visible, as is a small section of the mezzanine that has no plywood covering." However, Cooperage does not provide any citation to the record in support of that statement, nor any explanation as to how the section was allegedly "clearly visible."
Cooperage also argues that the fact Lopez was not supposed to be in the attic precludes a finding of liability against Cooperage. In its summary judgment motion, it argued that Lopez "had no right to be" in the attic. Cooperage relies entirely on the evidence of the "no storage above" signs stenciled on the walls of the attic which, it contends, bars any liability for the failure to warn of the dangerous condition. Cooperage's argument is essentially one of foreseeability-that is, it argues it did not owe Lopez a duty of care because it was not foreseeable Lopez would be in the attic, given his alleged lack of right to be there.
We conclude there is a triable issue of fact on this issue as well. First, the only evidence Cooperage cites consists of pictures of the "no storage above" signs stenciled on the walls, which pictures were taken after the accident. Lopez disputes that the signs existed at the time of the accident. Liberally construing this evidence in the light most favorable to Lopez, we conclude it creates a triable issue of material fact as to whether the signs existed at the time of the accident.
Second, even if the signs did exist then, they only addressed storage-that is, they did not preclude entry into the attic altogether or even warn against entry. The record also contains evidence showing that entry into the attic was expressly contemplated and occurred regularly. A wooden ladder was built into the wall to provide access to the attic, which contained a water heater and HVAC unit, and the Cabraleses testified that technicians had entered the attic to service the items. We cannot conclude as a matter of law that Cooperage did not owe a duty to Lopez because he had no right to be in the attic.
Because we conclude there are triable issues of material fact as to these aspects of causation and duty, we need not address Lopez's other arguments on appeal.
III. Disposition
The judgment is reversed and the matter is remanded for further proceedings. The trial court is instructed to enter an order denying Cooperage's motion for summary judgment. Lopez is entitled to his costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Danner, J.