Opinion
D076185
03-08-2021
GREGORY MAIDEN, Plaintiff and Appellant, v. AEG MANAGEMENT SD, LLC, Defendant and Respondent.
Meridian Law Group and Philip L. Marchiondo for Plaintiff and Appellant. Manning & Kass Ellrod, Ramirez, Trester, Kenneth S. Kawabata and Steven J. Renick for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00029684-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Reversed. Meridian Law Group and Philip L. Marchiondo for Plaintiff and Appellant. Manning & Kass Ellrod, Ramirez, Trester, Kenneth S. Kawabata and Steven J. Renick for Defendant and Respondent.
Plaintiff Gregory Maiden sued AEG Management SD, LLC (AEG) for negligence and premises liability after he slipped and fell on stairs inside a concert venue owned by AEG. AEG moved for summary judgment, which Maiden opposed primarily by providing a declaration from a civil engineering expert who opined AEG was negligent and violated a building code provision by failing to provide a handrail on the subject stairway. AEG objected to the expert's declaration on the basis he lacked foundation for his opinions because he was relying on the wrong building code provision. The trial court sustained AEG's evidentiary objection and granted summary judgment for AEG.
On appeal, Maiden contends the trial court erred by sustaining AEG's evidentiary objection and by granting summary judgment. As we will explain, because the summary judgment review standards require us to liberally construe the nonmoving party's submissions in opposition to summary judgment, we conclude the trial court erred in sustaining AEG's evidentiary objection and granting summary judgment.
Accordingly, the judgment is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
On April 9, 2016, Maiden attended a concert at the Valley View Casino Center, formerly known as the San Diego Sports Arena (the venue). While walking down the stairway to his seat in Section L24, Maiden lost his footing and tumbled down the steps. He grabbed onto some seats as he was falling, which stopped his momentum. Although stairways in other sections of the venue had handrails, the stairway in Section L24 did not.
The Complaint
In August 2017, Maiden filed a Judicial Council form complaint against AEG, asserting causes of action for negligence and premises liability. Maiden alleged as to each cause of action that he "slipped and fell . . . as a result of an unsafe, dangerous, and hazardous condition of the steps," which AEG "negligently maintained, operated, inspected and controlled." He further alleged his fall and injuries were the "proximate result of [AEG's] . . . failure to use reasonable care to maintain, manage, control, guard, warn, and keep [the venue] in a good and safe condition, free from any defective, dangerous and hazardous conditions." Maiden did not specify any particular dangerous condition in his complaint.
"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.)
Summary Judgment
AEG's Motion
AEG moved for summary judgment based on the following undisputed facts taken from Maiden's deposition testimony.
Maiden had to walk down eight to 10 wide concrete steps to get to his seat. Although he was wearing dress shoes with a half-inch heel, he "had no problems walking to his seat upon arrival." When Maiden left his seat to go to the restroom before the concert started, "he had no trouble walking up the stairs." As Maiden "was walking down the stairs back to his seat, . . . he hit the third step," " 'lost [his] footing,' " " 'slipped,' " " 'fell,' " and " 'went into the air and hit the back of the steps and . . . tumbled.' " Maiden "roll[ed] down the steps about three times . . . and land[ed] on his back." "He grabbed onto seats to his right as he was falling, which he believes stopped the momentum of his fall." Maiden "walked down at least six . . . more stairs to get back to his seat after falling, with no problems." "After visiting the dispensary, [Maiden] walked back down the same flight of stairs . . . with no problems." Maiden "testified that he looked at the stairs in question, and there was no spilled liquid, no food, no trash, no wrapper, and that the stairs were 'totally clean.' "
Based on these facts, AEG maintained Maiden could not "prove that a dangerous condition existed," or that AEG "had actual or constructive knowledge of any dangerous condition regarding the stairs." Specifically, AEG argued that because Maiden testified to the clean condition of the stairs, he "could not testify as to what caused the fall without speculation."
AEG also asserted Maiden could not establish that a "violation of any statute, ordinance, or regulation . . . was the proximate cause of his fall" because the only such statute he identified in his discovery responses was Civil Code section 1714, subdivision (a), which speaks only generally to a property owner's duty to exercise "ordinary care or skill in the management of his or her property."
AEG propounded Form Interrogatory 14.1, which asked: "Do you . . . contend that any person involved in the incident violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the incident? If so, identify each . . . statute, ordinance or regulation."
Maiden responded, "Yes. [AEG] violated . . . Civil Code, Section 1714(a) which states: 'Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself . . . ."
Maiden's Opposition
Maiden opposed AEG's motion and submitted declarations from himself and a civil engineering expert.
Maiden stated in his own declaration that it is his "custom and practice to use handrails, especially when attending any events in an arena . . . ." He would have used one at the scene of his fall, in particular, because he had just transitioned from the "brightly lit lobby to the dimly lit arena" and his "eyes were not fully adjusted"; "the stairway was steep"; and he is "fully aware that people often times spill drinks and food at events held in arenas making the steps slippery." However, while "other sections in the arena" had handrails, his section did not. Maiden "firmly believe[d]" he "would not have fallen and become injured if a handrail [had been] available . . . ."
The civil engineering expert, Philip Rosescu, opined in his declaration that "the subject stairway presented a substantial fall hazard for patrons exercising reasonable care," and AEG was negligent because it provided handrails in some sections of the venue, but not in the section where Maiden fell. Rosescu further opined AEG violated section 3305 of the 1964 Uniform Building Code (UBC), which provides that "[s]tairways shall have handrails on each side."
Undesignated section references are to the UBC.
Based on this evidence, Maiden argued AEG had not met its summary judgment burden because AEG "focuse[d] solely on the steps, and ignore[d] what made the steps dangerous in the first place, the lack of a handrail in Section L24 stairway!" He maintained there existed "a plethora of triable issues of material fact," including: "whether reasonable care required [AEG] to have installed a handrail in Section L24 stairway"; "whether [AEG] was negligent" for "randomly installing handrails in some places in the arena, but not" in Section L24; and "whether [AEG] was negligent per se by failing to install a handrail in Section L24 stairway in violation of the [UBC]."
AEG's Reply and Evidentiary Objection
AEG objected to Rosescu's declaration "in its entirety," primarily on the basis Rosescu was relying on the wrong UBC section. AEG asserted the subject stairway fell within a more specific UBC exception to the handrail requirement for stairways "that pass through the seating area" of "reviewing stands, grandstands and bleachers." (§ 3322.)
Based on its contention that Rosescu was relying on "the wrong section of the [UBC]," AEG argued in its reply brief that, "absent Mr. Rosescu's conclusions, [Maiden] has utterly failed to show the existence of a triable dispute of material fact . . . ."
AEG submitted with its reply a declaration from counsel attaching the entire UBC chapter governing stairways. Counsel also stated, "Nowhere in [Maiden]'s complaint or in his responses to discovery did [he] assert that the lack of handrails constituted the dangerous condition of the property that caused his injuries." Counsel did not attach any discovery responses to this declaration.
Surreply and Supplemental Declaration
Maiden responded to AEG's reply by filing an "opposition to [AEG]'s introduction of new evidence in its reply papers." (Bolding and capitalization omitted.) Maiden also submitted a supplemental declaration from Rosescu insisting he had cited the correct UBC section.
Rulings
After a reported hearing (the transcript of which is not in the appellate record), the trial court issued a minute order addressing the pending matters.
First, the court sustained AEG's evidentiary objection to Rosescu's declaration, agreeing he had relied on the wrong UBC section.
Second, the court overruled Maiden's objection to AEG's reply evidence, explaining AEG was entitled to submit new evidence to address the new handrail evidence Maiden submitted with his opposition.
Third, the court disregarded Rosescu's supplemental declaration, reasoning it was tantamount to an unauthorized surreply.
Finally, the court granted AEG's summary judgment motion. Procedurally, the court found Maiden could not defeat summary judgment based on his handrail theory because "the lack of handrails . . . was not raised in [his] complaint . . . nor in [his] discovery responses." Rather, the complaint alleged a " 'dangerous . . . condition of the steps' "—"[h]andrails, or the absence thereof, are nowhere mentioned in the complaint."
Once the court narrowed the scope of Maiden's claims to the condition of the steps themselves, the court found he could not establish either "that a dangerous condition existed" or that "AEG had actual or constructive knowledge of any [such] condition." The court based these findings on Maiden's deposition testimony regarding the cleanliness of the steps, the fact he had no trouble navigating them before and after his fall, and that he did not see any other patrons fall on the stairs in his section. The court also found Maiden could not establish his fall was caused by a violation of law because his discovery responses identified only Civil Code section 1714's general proposition regarding due care.
The court also explained that even if Maiden's handrail theory were permissible, he had not met his burden to show a triable issue of fact existed because the theory was based on Rosescu's declaration, which the court found lacked foundation.
Based on its rulings, the trial court entered judgment for AEG.
DISCUSSION
I. Evidentiary Ruling Regarding Expert Declaration
We begin by addressing Maiden's evidentiary challenge because our resolution of the issue materially impacts our summary judgment analysis. For reasons we will explain, we conclude the trial court erred in sustaining AEG's evidentiary objection to Rosescu's initial declaration.
Maiden does not challenge the trial court's ruling to disregard Rosescu's supplemental declaration.
A. Background
1. Rosescu's Initial Declaration
Rosescu began his declaration by setting forth his qualifications (which are not in dispute here) and identifying the materials on which he relied in forming his opinions: AEG's summary judgment papers; Maiden's deposition testimony; photographs, videos, and measurements taken during a personal site inspection; photographs taken by his consulting firm; and Rosescu's "educational background, professional training, and experience."
Rosescu then offered the following opinions:
"7. It is my opinion the subject stairway presented a substantial fall hazard for patrons exercising reasonable care and is in direct violation of the applicable 1964 Uniform Building Code . . . . Section 3305, [t]itled 'Handrails' states:
" [']Section 3305. (h) Handrails - Stairways shall have handrails on each side.[']
"Handrails provide a [third] point of contact while ascending and descending a stairway, which provides additional balance and stability for stairway users. At the time of Mr. Maiden's incident there were no handrails present, making it impossible to recover his balance from a stumble or misstep, and as such resulting in a fall down the stairway. The Handbook to the Uniform Building Code . . . states that handrails are probably the most important safety device that can be provided in connection with stairs. It goes on to say[,] 'It will never be known how many missteps, accidents, or injuries have been prevented by a properly installed, sturdy handrail.' Had a handrail been
present it is more likely than not that Mr. Maiden's incident would have never occurred.
"8. Furthermore, it is my opinion that [AEG] knew or should have known of the unsafe condition of the stairway and failed to repair it in a timely manner. I personally, inspected the subject arena . . . . At the time of my inspection I observed handrails located in various locations throughout the property including the lower level of section L24, which is located directly beneath the section where Mr. Maiden was seated. [AEG] was negligent by installing handrails in random locations and making the decision to not be consistent throughout the property. [AEG] fell below the standard of care required for property owners. [AEG] knew or should have known that handrails were not only required but are valuable and necessary safety measures for patrons.
"9. It is my final opinion that the cost to eliminate and/or mitigate the subject unsafe condition of the subject stairway would have been minimal, particularly when weighed against the substantial risk of harm to patrons. The cost to install handrails would be ~$6 - $12 per foot."
2. AEG's Evidentiary Objection
AEG objected to Rosescu's declaration "in its entirety," arguing that "a review of the actual language of the" UBC shows that Rosescu was relying on the wrong section. That is, while Rosescu was relying on the general rule requiring handrails on stairways, AEG maintained that a more specific section applied and created an exception for the subject stairway.
AEG first noted that the UBC chapter governing stairways begins by clarifying that when "there is a conflict between a general requirement and a specific requirement for an individual occupancy, the specific requirement shall be applicable." (§ 3301(b).)
AEG pointed out that section 3305, on which Rosescu relied, set forth only general requirements:
"Sec. 3305. (a) General. Every stairway serving any building or portion thereof shall conform to the requirements of this Section. [¶] . . . [¶]
"(h) Handrails. Stairways shall have handrails on each side . . . ."
AEG then argued that the more specific requirements of section 3322 applied to the subject stairway, as follows:
"Sec. 3322. (a) Scope. All reviewing stands, grandstands and bleachers shall conform to the provisions of this Section. [¶] . . . [¶]
"(g) Stairs and Ramps. 1. Scope. The requirements of this Section shall apply to all stairs and ramps except for portions that pass through the seating area. [¶] . . . [¶]
4. Handrails . . . . Stairs from stands shall have handrails. Handrails shall conform to Section 3305(h)." (Italics added.)
Reading these provisions together, AEG argued that the general rule requiring handrails on stairways (sections 3305 and 3322(g)(4)) was subject to a more specific exception "for portions [of stairways] that pass through the seating area" of "reviewing stands, grandstands and bleachers." And because, AEG asserted, "that is exactly where [Maiden] contends this incident occurred, the language of the UBC makes clear that it does not impose" a handrail requirement on the subject stairway.
AEG also challenged Rosescu's foundation for his opinions regarding the "random[ness]" of handrail placement, and the cost to eliminate or mitigate the allegedly dangerous condition.
3. Rosescu's Supplemental Declaration
After AEG filed its reply, Maiden submitted a supplemental declaration from Rosescu "stand[ing] behind [his] opinion, with an absolute degree of certainty," that section 3305 applied, and section 3322(g) "has absolutely no application or relevance" because "[t]he subject arena . . . is considered 'stadium seating' " and "is not a 'reviewing stand, grandstand nor bleacher.' " Rosescu did not define "stadium seating," but he explained that the International Code Council (ICC), which promulgates standards and definitions pertaining to the UBC, defined "Bleachers" and "Grandstands" as "[t]iered seating supported on dedicated structural system and two or more rows high." Rosescu attached copies of the pertinent ICC provisions to his supplemental declaration. Neither Rosescu's declaration nor its attachments define "reviewing stands."
4. Ruling
Two days before the summary judgment hearing, the trial court signed AEG's proposed order sustaining its evidentiary objection. After the hearing, the court explained in its global minute order why it sustained the objection.
The trial court agreed with AEG's analysis and found that section 3322's more specific handrail exception for stairs "that pass through the seating area" of "reviewing stands, grandstands and bleachers" prevailed over section 3305's more general handrail requirement. The court also found that Maiden "contends his fall occurred in a seating area of the venue." Thus, the court concluded "Rosescu's opinion that the UBC required handrails at the location of the fall is without foundation."
The court also found Rosescu lacked foundation for his opinions regarding the randomness of handrail placement, and the cost to eliminate or mitigate the allegedly dangerous condition.
Maiden does not to challenge these aspects of the court's ruling.
Accordingly, the court "disregarded" Rosescu's declaration.
The court also stated it would disregard Rosescu's supplemental declaration because it was tantamount to an unauthorized surreply. The court added that even if it were to consider the declaration, "it is noteworthy for what it does not contain: a single citation to any building code supporting Mr. Rosescu's characterization of the area where [Maiden] fell as 'stadium seating.' From all that appears, this is a term Mr. Rosescu simply made up (whereas the applicable building code has specific references to bleachers and grandstands)."
B. Legal Principles
"A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert's opinion will assist the trier of fact. (Evid. Code, § 801, subd. (a).) Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) " '[T]he trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.)
In determining whether a trial court properly excluded the declaration of an expert witness presented by a party opposing summary judgment, we apply the abuse of discretion standard. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.) "The party challenging an evidentiary ruling bears the burden of establishing the court exceeded the bounds of reason. [Citation.] Nevertheless, evidentiary questions at summary judgment ' "are subject to the overarching principle that the [summary judgment] proponent's submissions are scrutinized strictly, while the opponent's are viewed liberally." ' " (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657 (Mackey).) Thus, "a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial." (Garrett, at p. 189; see Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332 [trial court abused its discretion where it "took a very narrow and stingy view" of expert's declaration in opposition to summary judgment].)
C. Analysis
Viewing Rosescu's declaration liberally, as we must (Mackey, supra, 31 Cal.App.5th at p. 657), we conclude the trial court erred for two reasons in disregarding it. First, in finding Rosescu based his opinions on the wrong UBC section, the court improperly resolved a disputed material fact about the nature of the seating in the area of the subject stairway. Second, the court read the declaration overly narrowly as containing only a single opinion that AEG's failure to provide a handrail was negligent because it violated the UBC (that is, a negligence per se theory). When read more liberally, the declaration also contains a separate and distinct opinion that the failure to provide a handrail was negligent wholly apart from any alleged UBC violation (that is, a general negligence theory).
"Under the negligence per se rule, a presumption of negligence arises from the violation of a statute that was enacted to protect a class of persons, of which the plaintiff is a member, against the type of harm which the plaintiff suffered as a result of the violation of the statute." (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 675 (Padilla)).
1. Wrong UBC Section
Rosescu presented evidence that the UBC, as a general rule, requires handrails on stairways. (§ 3305.) AEG countered that the subject stairway fell within an exception to this general rule for stairways "that pass through the seating area" of "reviewing stands, grandstands and bleachers." (§ 3322(g).) The resolution of this conflict turns on whether the subject stairway passes through "reviewing stands, grandstands, or bleachers." (§ 3322(g).) AEG contends resolution of this issue is one of law because statutory construction is a legal question for the court. Maiden contends the issue is one of fact because the foundational facts are disputed. On the record before us, we agree with Maiden.
The case on which AEG primarily relies, Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535 (Vaerst), is instructive. The determination of whether the UBC applied to the subject stairway in Vaerst hinged on whether a platform that interrupted the stairway satisfied the UBC's dimensions-based definition of a "landing." (Vaerst, at p. 1542.) The Vaerst court concluded that because "the construction of a statute, ordinance or regulation and its applicability to a situation where the facts are undisputed constitutes a question of law to be determined by the court," and because "the operative facts [regarding the dimensions of the platform] were undisputed, interpretation of UBC and its applicability to the present case constituted purely questions of law to be determined by the court." (Ibid., italics added.)
But the Vaerst court distinguished the undisputed operative facts of its case from the disputed operative facts held to be a jury question in Newton v. Thomas (1955) 137 Cal.App.2d 748 (Newton). (Vaerst, supra, 222 Cal.App.3d at p. 1542.) The issue in Newton was whether a fatally injured pedestrian was contributorily negligent for violating an ordinance that prohibited crossing a street outside a crosswalk in a "business district." (Newton, at p. 755.) The ordinance defined "business district" in terms of the number, type, and character of properties contiguous to a specified length of roadway. (Ibid.) The Newton court delineated the roles of judge and jury as follows: "Where there is no dispute as to the type and character and number of the buildings in the area, the determination of whether or not the area constitutes a business district is a question of law. However, if there is such conflict then the question becomes one of both law and fact—fact as to what and how many the buildings are—law as to whether the buildings as resolved in the conflict meet the requirements of the code." (Id. at pp. 758-759.) Because the type and character of buildings fronting the subject roadway were disputed, the Newton court concluded the issue was subject to jury input. (Id. at p. 759.)
The holdings in Vaerst and Newton are consistent with the principle in negligence per se cases that the determination of whether the defendant has violated a particular statute is a question of fact for the jury unless "there are no factual disputes" (Padilla, supra, 166 Cal.App.4th at p. 675) or "reasonable minds could not differ as to whether a violation of the regulation actually occurred" (Traxler v. Varady (1993) 12 Cal.App.4th 1321, 1328 (Traxler)).
Applying these principles, we conclude the determination of the nature of the seating in the area of the subject stairway presented a factual issue for the jury to resolve. Whether the seating constituted "reviewing stands, grandstands [or] bleachers" (§ 3322(a))—and, thus, whether the subject stairway was exempt from section 3305's handrail requirement—was disputed. And because the trial court disregarded Rosescu's supplemental declaration, there is no properly admitted evidence defining "reviewing stands, grandstands and bleachers." Thus, this case is unlike Vaerst, where the dimensions of the stairway platform were undisputed and it was a simple matter of the trial court applying those dimensions to the UBC's dimensions-based definition of a "landing." (Vaerst, supra, 222 Cal.App.3d at p. 1542.) Instead, this case is more like Newton, where the "type and character" of buildings in the potential "business district" were disputed and, thus, were reserved for the jury to decide. (Newton, supra, 137 Cal.App.2d at pp. 758-759.)
Nor can it be said that "reasonable minds could not differ" (Traxler, supra, 12 Cal.App.4th at p. 1328) as to whether the seating constituted reviewing stands, grandstands or bleachers. Unlike in Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013 (Taxpayers), in which our court had no difficulty determining that seating at an outdoor high school football stadium fell within "[t]he plain and ordinary meaning of 'bleachers' " (id. at p. 1029), the plain and ordinary meanings of "reviewing stands, grandstands, and bleachers" do not necessarily and exclusively conjure up images of seating at an indoor concert venue.
In this vein, the dictionary definitions of "reviewing stands, grandstands, and bleachers" are instructive. To begin with, the term "reviewing stands" does not appear in any of the leading dictionaries we consulted. The online Collins English Dictionary defines the term as "a special raised platform from which military and political leaders watch military parades." The Oxford English Dictionary defines "bleachers" as "a roofless set of benches for spectators at outdoor events such as baseball and football games." And it defines a "grandstand" as "[t]he principal stand, usually roofed, offering the best view for spectators at a racecourse or other sporting venue." Reasonable minds could certainly differ as to whether the venue's indoor seating falls within any of these definitions.
We searched the online versions of the Oxford English Dictionary; Webster's Third New International Dictionary, Unabridged; and the American Heritage Dictionary of the English Language, Fifth Edition.
See https://www.collinsdictionary.com/us/dictionary/english/reviewing-stand [as of Mar. 8, 2021], archived at <https://perma.cc/E5Z2-BBET>.
OED Online. December 2020. Oxford University Press. https://www.oed.com/view/Entry/20045?redirectedFrom=bleachers#eid [as of Mar. 8, 2021], archived at <https://perma.cc/NN5X-RYZX>, italics added.
OED Online. December 2020. Oxford University Press. https://www.oed.com/view/Entry/80716?rskey=dTeNhw&result=1 [as of Mar. 8, 2021], archived at <https://perma.cc/3KGD-49TJ>.
Because the determination of which UBC section applied required the resolution of disputed, debatable, operative facts about the nature of the seating around the subject stairway, the trial court erred by resolving the question as a matter of law. Consequently, the court erred in disregarding Rosescu's declaration on the ground he relied on the wrong UBC section.
2. General Negligence Theory
The trial court appears to have construed Rosescu's declaration as asserting that all of his opinions about the dangerousness of the subject stairway were based on his opinion that the lack of a handrail violated the UBC. We do not read the declaration so narrowly.
For example, Rosescu asserted "the subject stairway presented a substantial fall hazard . . . and is in direct violation of the applicable" UBC provision. (Italics added.) Rosescu's use of "and" instead of "because" suggests his opinion regarding the hazards posed by the stairway did not depend on a UBC violation.
Similarly, Rosescu asserted AEG "knew or should have known that handrails were not only required but are valuable and necessary safety measures for patrons." (Italics added.) The liberal reading of the contrast between "required" and "valuable and necessary" is that the former refers to a UBC requirement, while the latter refers to a landowner's general duty of care.
Maiden's briefing in opposition to summary judgment supports our reading of Rosescu's declaration as expressing separate and distinct opinions. Specifically, Maiden argued AEG's failure to provide a handrail (1) "fell below the standard of care for property owners, and thus, was negligent"; and (2) "violated Section 3305(h) of the [UBC] by not providing a handrail, and thus, was negligent per se."
Because neither AEG nor the trial court construed Rosescu's declaration as expressing an opinion regarding general negligence (that is, independent from any UBC violation), they did not challenge his foundation to express such an opinion. On the record before us, we see no obvious foundational deficiencies. Rosescu's professional credentials are not in dispute; he described the scope of his investigation and the materials he reviewed in forming his opinions; and he explained, generally, the significance of handrails as a safety device (they "provide a [third] point of contact . . . , which provides additional balance and stability").
Thus, because Rosescu expressed a distinct opinion in his declaration that AEG was negligent apart from its alleged violation of the UBC, the trial court erred in excluding the declaration solely on the basis Rosescu relied on the wrong UBC section.
II. AEG Is Not Entitled to Summary Judgment
Maiden contends the trial court erred by granting summary judgment because—when Rosescu's declaration is properly considered—AEG failed to negate Maiden's theory of liability that AEG was negligent for failing to provide a handrail on the subject stairway. We agree.
A. Legal Principles
"Summary judgment is appropriate only 'where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' " (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; see Code Civ. Proc., § 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A defendant can meet this burden by "prov[ing] an affirmative defense, disprov[ing] at least one essential element of the plaintiff's cause of action [citations], or show[ing] that an element of the cause of action cannot be established." (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465 (Sanchez); see Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 492.) "A defendant is not entitled to summary judgment unless that moving party negates all theories of liability pleaded by the plaintiff." (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 397 (Juarez).)
If the moving defendant makes the required showing, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact as to the cause of action or affirmative defense. (Code of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 (Saelzler).)
"We review an order granting summary judgment de novo." (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858 (Serri).) "A trial court's stated reasons for granting summary judgment do not bind us; we review the court's ruling, not its rationale." (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358.)
"In undertaking our independent review, we apply the same three-step analysis used by the trial court. First, we identify the issues framed by the pleadings. Second, we determine whether the moving party has established facts justifying judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable issue of material fact." (Serri, supra, 226 Cal.App.4th at pp. 858-859.) "In performing our review, we view the evidence in a light favorable to the losing party . . . , liberally construing [his or] her evidentiary submission while strictly scrutinizing the moving party's own showing and resolving any evidentiary doubts or ambiguities in the losing party's favor." (Serri, at p. 859; see Saelzler, supra, 25 Cal.4th at p. 768.) We "consider[ ] all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; see Mackey, supra, 31 Cal.App.5th at p. 653.)
B. Analysis
The key issue on appeal concerns the first step of our analysis—whether Maiden's handrail theory is within the scope of his complaint. Based on a liberal reading of Maiden's complaint, we conclude that it is. (See Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211 ["courts are encouraged to take a liberal approach in determining the scope of the pleadings, so long as those pleadings provide adequate notice to the opposing party of the theories on which relief is generally being sought"]; see FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385.)
Maiden alleged generally that he "slipped and fell as he was walking down the steps as a result of an unsafe, dangerous, and hazardous condition of the steps." Although the trial court apparently construed Maiden's reference to "steps" as limiting his claim to the condition of the stairway's stepping surfaces, we do not read the allegation so narrowly. That is, while "steps" certainly includes the stepping surfaces of the stairway, the term does not—when liberally and colloquially construed—necessarily exclude the stairway as a whole (including the absence of a handrail).
AEG acknowledged in its summary judgment motion that Maiden used the words "[s]tairs and steps . . . interchangeably throughout [his] deposition testimony." Thus, by the time AEG moved for summary judgment, it was aware Maiden did not use "steps" in a restrictive manner.
Maiden admittedly did not specifically allege in his complaint that the absence of handrails on the subject stairway constituted the dangerous condition that caused his fall. But neither did he assert that slipperiness or uncleanliness of the stepping surfaces constituted the dangerous condition. Indeed, Maiden did not identify in his complaint any specific dangerous condition. Rather, he alleged only generally that there was "an unsafe, dangerous, and hazardous condition of the steps." This was consistent with Maiden's pleading burden to allege only ultimate, rather than evidentiary, facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 ["the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts"]; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 ["To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged."]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 6:125 [it is sufficient to allege the ultimate fact that the "defendant drove while under the influence of alcohol" without alleging the evidentiary fact that the "defendant drove his car immediately after having consumed a fifth of vodka"].)
Although somewhat beyond the scope of the first step of our review analysis, AEG maintains it was excused from initially addressing Maiden's handrail theory because he did not identify it in his discovery responses. We are not persuaded.
Most fundamentally, AEG did not substantiate its claim by showing that Maiden gave factually devoid responses to comprehensive interrogatories that specifically asked him to identify every dangerous condition he contended caused his fall. (See, e.g., Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104 [moving defendant met its initial burden where it "propounded a series of special interrogatories which called for all facts regarding" the plaintiffs' claim, and the plaintiffs' "answers made clear that they did not have specific evidence"].) The closest AEG came to doing so was submitting Maiden's response to a form interrogatory asking him to identify any statutory violation he contended caused his fall. However, this interrogatory did not ask Maiden specifically to identify any dangerous conditions. And although it is somewhat problematic that Maiden did not identify section 3305 in response to this interrogatory, that shortcoming would, at most, bar only his negligence per se theory—it would not bar his general negligence theory because it is not premised on a statutory violation.
Moving to the second step of our review analysis, we conclude AEG has not established facts justifying summary judgment in its favor. It is undisputed that AEG did not address Maiden's handrail theory of liability in its initial moving papers. And in reply, AEG argued that the "bottom line is that, absent Mr. Rosescu's conclusions, [Maiden] has utterly failed to show the existence of a triable dispute of material fact . . . ." But as we have already concluded, the trial court erred by excluding Rosescu's declaration, which, as AEG implicitly acknowledges, created triable issues of fact regarding Maiden's handrail theory.
AEG points out that "the trial court also found that 'the Rosescu declaration fails to provide evidence of any prior falls caused by the absence of handrails," and that Rosescu lacked foundation for his opinion regarding the "minimal" cost of eliminating or mitigating the dangerous condition. But before the burden shifted to Maiden to produce evidence establishing triable issues of fact on these points, AEG was required to make an initial showing that he would not be able to do so. (See Sanchez, supra, 47 Cal.App.4th at p. 1465 [moving party bears initial burden to "prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations], or show that an element of the cause of action cannot be established"].) Because AEG's showing was limited to the condition of the stepping surfaces and the admissibility of Rosescu's declaration, AEG did not make a sufficient initial showing to shift the burden to Maiden as to his handrail theory.
We recognize this is a close case on summary judgment, but the applicable review standards require that we liberally construe Maiden's submissions and strictly construe AEG's. Under generous readings of Maiden's pleadings and evidence, we conclude AEG did not meet its burden of "negat[ing] all theories of liability pleaded by the plaintiff." (Juarez, supra, 81 Cal.App.4th at p. 397.) Accordingly, the trial court erred in granting AEG summary judgment.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order granting summary judgment and enter a new order denying it. Each party shall bear its own costs on appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.