Scharf v. Calvary Chapel of Temecula Valley

Full title: DENNIS SCHARF et al., Plaintiffs and Appellants, v. CALVARY CHAPEL OF…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 4, 2013

No. E051885 (Cal. Ct. App. Feb. 4, 2013)

Opinion

E051885

02-04-2013

DENNIS SCHARF et al., Plaintiffs and Appellants, v. CALVARY CHAPEL OF TEMECULA VALLEY et al., Defendants and Respondents.

Schumann, Rallo & Rosenberg, Kim Schumann, Jeffrey P. Cunningham, and Eric Arevalo for Plaintiffs and Appellants. Daley & Heft, Lee H. Roistacher and Mitchell D. Dean for Defendants and Respondents Calvary Chapel of Temecula Valley and Gary H. Nelson. Law Office of Margaret M. Byrne and Margaret M. Byrne for Defendants and Respondents Donald W. Coop and Coop Family Trust.

KING

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIC463993)

OPINION

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed in part and reversed in part.

Schumann, Rallo & Rosenberg, Kim Schumann, Jeffrey P. Cunningham, and Eric Arevalo for Plaintiffs and Appellants.

Daley & Heft, Lee H. Roistacher and Mitchell D. Dean for Defendants and Respondents Calvary Chapel of Temecula Valley and Gary H. Nelson.

Law Office of Margaret M. Byrne and Margaret M. Byrne for Defendants and Respondents Donald W. Coop and Coop Family Trust.

I. INTRODUCTION

Plaintiff and appellant Dennis Scharf sued defendants and respondents Calvary Chapel of Temecula Valley (Calvary), Donald Coop,¹ and Gary Nelson for damages after he was injured while performing work at Calvary. ² The present appeal flows from the trial court's granting of defendants' motions for summary judgment. We affirm the judgment as to Coop. We reverse the judgment entered in favor of Calvary and Nelson (the Church defendants).

1 In the controlling pleading, Scharf named Coop as a defendant in his individual capacity. In addition, Scharf named the Coop Family Trust as a defendant. A trust, however, is not a distinct legal entity and cannot be sued; "the real party in interest in litigation involving a trust is always the trustee." (Presta v. Tepper (2009) 179 Cal.App.4th 909, 914; see also Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.) Scharf alleges that Coop is the trustee of the Coop Family Trust. We therefore construe the allegations against the Coop Family Trust as made against Coop in his capacity as trustee of that trust.

2 Scharf's wife, Gladys Scharf, is also a plaintiff and appellant. Mrs. Scharfs claim is for loss of consortium, which is derived from her husband's claims. For ease of reference, our references to Scharf are to Dennis Scharf.

Scharf was a parishioner of Calvary. Nelson was Calvary's pastor. Calvary leased the premises for the church from Coop, trustee of the Coop Family Trust. In January 2005, Calvary was retrofitting audio/visual technology on its premises. Scharf, an audio/visual technician, volunteered "as part of his ministry" to install the necessary cables and wiring. In the process of doing so, he fell off the top of an unfinished wall.

At the time of the incident, Scharf was in a secretarial office in Calvary's chapel attempting to direct cable and wiring down the interior space of a wall toward an opening for an electrical outlet. Unbeknownst to Scharf, there was a room on the other side of the wall, which housed a shower. The wall on the shower room side was unfinished, such that there was no wallboard to force the cable and wire down toward the electrical outlet. In attempting to determine why the cable and wire were not moving toward the outlet, Scharf hoisted himself onto the top of the wall. After balancing himself, he fell and suffered serious injuries as a result.

Defendants moved for summary judgment on the bases that they did not owe a duty of care to Scharf and their conduct or lack thereof was not a cause of injury. Although defendants did not rely on Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette)and the parties did not brief issues regarding the doctrine of peculiar risk, the trial court granted summary judgment based on Privette and its progeny.³

3 The court stated: "[T]his court used the line of cases starting with Privette . . . . [a]nd the progeny going all the way down to . . . [Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, in which the] court held that the principles of Privette apply to independent contractors. And in this case this was a volunteer independent contractor."

On appeal, Scharf argues that Privette and the peculiar risk doctrine does not apply and that it was improper for the trial court to base its decision on a line of cases not raised by the defendants and not briefed by either side.⁴ In response, defendants submit that Scharf, by focusing exclusively on the trial court's rationale, waived arguments on appeal as to duty and causation because of his failure to address the "pertinent legal issues." Additionally, and for the first time in this matter, defendants submit that Privette and its progeny support the proposition they did not owe a duty to Scharf.⁵

4 "Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others." (Privette, supra, 5 Cal.4th at p. 691.) Privette held that an independent contractor's injured employee cannot use the doctrine of peculiar risk to recover damages from the hirer of the independent contractor for injuries compensable under the worker's compensation insurance system. (Id. at p. 701.)

5 At the trial court level, both parties briefed the issue of duty based on Civil Code section 1714 and its interpreting case law. On appeal, Scharf focuses his argument on what can be generally characterized as an attack on the trial court's reliance on Privette and its progeny. Defendants discuss both the Privette line of cases, as well as the cases addressed by the parties at the trial court level. Because of the trial court's unexpected reliance on the Privette line of cases, we do not construe Scharf's briefing on appeal to be a waiver of arguments asserted below. In that defendants at both the trial court level and on appeal have fully briefed all the issues, we find no unfairness in addressing the underlying substantive issues on their merits. (See Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1663-1664.)

II. FACTS

As the owner of the property, Coop initially leased the premises to Calvary sometime in the 1980's. Title to the property was thereafter transferred to the Coop Family Trust, and Coop, as its trustee, entered into another lease with Calvary in 1995.⁶

6 At oral argument, counsel for plaintiffs alluded to the fact that at the time of the incident no written lease was in place. Even so, our record does not support that assertion. While indeed a new lease was entered into shortly after the accident, there is no indication in our record that at the time of the incident there was no written lease in effect.

Upon the expiration of the initial lease, Coop went to the property and, according to his deposition testimony, "was familiar with the premises." He did not thereafter inspect the premises or hire a general contractor for purposes of making repairs or performing maintenance of the premises. Before the incident, his involvement with the property was limited to the outside landscaping, which was done on an as needed basis by employees who worked on his ranch.

The original blueprint of the subject property was of an unimproved building. All of the internal work on the chapel was performed by a firm hired by Calvary. While Coop recalls receiving documents whereby Calvary sought permission to remodel the subject property and "put up walls," he does not recall ever receiving any documentation concerning the building of a "shower room improvement." Nor was he ever informed by anyone associated with the leased property that Calvary built a "shower room improvement." He indicated that he first became aware of the existence of the shower room years after the incident in question.

At the time of the alleged incident on January 23, 2005, Scharf's professional trade was audio/visual technician. As an audio/visual technician, Scharf performs all of the work that would allow an entity to have its audio/visual technology operating. Scharf began working in the field of audio/visual technology in 1988, and since that time completed about one-half dozen courses on consumer electronics. These courses were designed to train audio/visual technicians on the installation and running of overhead audio/visual communication cables and wires. Other than specific tools used to connect audio/visual equipment, which vary depending on the type of electrical system installed, there is not a specific tool unique to the work of an audio/visual technician; the tools are the same that are used by general contractors. Prior to January 23, 2005, Scharf had accumulated 17 years of experience working in the field of audio/visual technology. He worked as an audio/visual technician throughout those years, installing and running communication cables, and at one time or another, owned (either wholly or via partnership) three separate audio/visual companies dealing primarily with commercial clientele.

Scharf first attended services at Calvary in 1997. He met Nelson about a month later. While Scharf was not a member of Calvary, he attended services on a weekly basis up to the time of the incident.

In approximately 2000, Nelson approached Scharf about heading up the "tape ministry," whereby Scharf would be charged with recording all of Nelson's sermons and reproducing each onto audiotapes or compact disks for the purposes of sale. Scharf stated that he "served faithfully in that ministry for four (4) years" immediately preceding the incident. "Quite a few times" over that period of time he volunteered his expertise and services for other construction work on Calvary's premises. Specifically, Scharf wired what is now called the old sanctuary and office spaces with audio/visual technology via a tunnel he constructed under the parking lot. Immediately following that project, which involved "put[ting] everything in from overhead down to each station," Scharf commenced another wiring job "going . . . from the sanctuary to the youth building." Scharf never received monetary compensation for his work at the church.

In January 2005, a large remodeling project of the chapel and its related facilities began. The corporate board of Calvary approved the construction project, held meetings regarding what needed to be done, and authorized Nelson to be in charge of the project.

Thereafter, Nelson approached Scharf and asked him, as an audio/visual technician, to install various telephone, facsimile, and DSL communication cables throughout the chapel and connect them to the new offices, which were being constructed as part of the renovation and remodeling of the premises. Nelson explained that the cables were to be pulled to specific locations in specified rooms, and that he wanted the new audio/visual technology to be set up the way Scharf had set up the wiring in the old building.

Nelson further informed Scharf that his work at the church had to be finished before 7:00 a.m. on Monday, January 24, 2005, because Nelson had scheduled an appointment with a telecommunications company to come to the church at that time. Nelson had agreed that the wiring would be ready for the telephone company by that morning. Although Scharf told Nelson, "that's really pushing it" and he would have to "revamp [his] schedule," he nonetheless assured Nelson that "[w]e'll find a way to get it done if we've got to work all night." ⁷ Scharf understood it was imperative that he finish his work before the arrival of the telecommunications company because the services of the telecommunications company depended upon the basic technological infrastructure that he was charged with installing. Further, Scharf was also aware that the appointment with the telecommunications company had originally been set for a prior date, but due to construction delays it was rescheduled for Monday, a change for which Nelson incurred a monetary penalty.

7 Although the substance of this conversation is not in dispute, the record contains conflicting evidence relative to the precise timing thereof. According to Scharf's deposition testimony, this conversation took place on the Tuesday immediately preceding the incident, and it was the only exchange the two had regarding the sort of work Scharf was supposed to do within the context of the larger remodeling project. However, Nelson indicated in a deposition that he told Scharf of the need to install DSL computer lines and telephone lines in each of the offices in the early afternoon on the day of the accident, January 23, 2005.

In performing his work as part of the January 2005 project, Scharf had full access to the supply of tools owned by Calvary, which included ladders, drills, lighting fixtures, and whatever else he wanted to use. When asked in a deposition whether he considered himself an employee or volunteer for the purpose of his work with the January 2005 remodeling project, Scharf replied it was a part of his ministry.

Throughout the week leading up to the incident, Scharf and an employee worked intermittently at the chapel. However, on the Sunday of the incident, Scharf was alone at the church when he commenced work at approximately 4:30 p.m.; at this point, Scharf planned to be finished with his responsibilities upon the completion of one last "pull" of the cable lines.

The last pull was to be made from the new secretarial office. Once inside that office, Scharf placed a five- or six-foot ladder on top of a "work counter with cabinets that [were] built into the wall." After appropriately aligning the ladder with the top of the wall, Scharf climbed the ladder until he reached the step "second from the top." He removed two ceiling tiles to access the area above the ceiling. Extending his head approximately two feet above the ceiling, Scharf attempted to establish a "hole guide" for drilling holes in the top "sill" of the wall, which is the top foot of a wall located above the ceiling. In doing so, he discovered that one hole had already been drilled, presumably for this purpose, so he only had to make one other hole. After making the hole, he pushed the cable lines down the interior of the wall.

In a deposition, Scharf was asked if he had any reason to climb above the ceiling. He explained that when the wire does not fall after the initial push, one must generally get up on the wall and determine why the wire is not falling toward its intended target. Scharf testified that he encountered this precise problem here and was unable to see the other side of the wall by using the ladder alone. Therefore, in order to determine what, if anything, was precluding the wires from falling down inside the wall, Scharf took his feet off the ladder and pulled himself onto the wall.

With his midsection lying on top of the wall and his body positioned slightly crooked along the sill to give him more stability, Scharf saw a refrigerator and shower in the adjacent room. Scharf also noticed that the wallboard on the shower room side of the wall did not go all the way up to the sill, leaving the top portion of the wall open. As a result, his wires were not forced down into the interior of the wall, but were left sticking out into the air. This is Scharf's last recollection of the day of the incident.

Scharf testified that he had performed the top-of-the-wall balancing maneuver on thousands of prior occasions. He indicated that in performing this type of work, it is standard practice to put one's stomach and body weight on top of a wall as he did on the day of the incident.

When asked whether or not he recalled or noticed any instability with the wall within the seconds that he was lying atop the wall, Scharf testified: "I can't remember any. I mean, [it was] too quick." Although Scharf does not have any idea how he fell, when asked whether he knows that he in fact fell, Scharf replied, "I feel like I fell."

Nelson testified in his deposition that prior to the incident he had never informed Scharf about the existence of the shower located in the adjacent room. He testified further that he is not aware of any fact that would indicate Scharf knew there was a shower behind the wall.

III. DISCUSSION

A General Standard of Review Regarding Motion for Summary Judgment

A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Id. at p. 850.)

On appeal following the grant of summary judgment, we review the record de novo, considering all of the evidence except that to which objections were made and sustained. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Ibid.) "We need not concern ourselves with the trial court's reasons for granting summary judgment. '[W]here there is no genuine issue of material fact, the appellate court should affirm the judgment of the trial court if it is correct on any theory of law applicable to the case, including but not limited to the theory adopted by the trial court. [Citations.] Thus, we must affirm so long as any of the grounds urged by [the moving party], either here or in the trial court, entitles it to summary judgment. [Citation.]' [Citation.]" (Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1057, fn. 10.)

"Our review of the summary judgment motion requires that we apply the same three-step process required of the trial court. [Citation.] 'First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. [Citations.] . . . [¶] . . . [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]' [Citation.]" (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.) B. Summary of Holding

For the reasons discussed below, we reverse the summary judgment as to the Church defendants. Regardless of whether the issue of duty is analyzed under the Rowland v. Christian ⁸line of cases or under Privette and its progeny, defendants failed to submit undisputed facts with supporting evidence that they did not know nor should have known of the condition (i.e., the incomplete construction of the wall in the shower room) and its risk-creating potential; further, assuming that defendants did know of the condition and its risk-creating potential to individuals in Scharf's position, triable issues exist as to the other considerations of duty.⁹ In addition, our record demonstrates that defendants failed in their burden of production as to causation and implied assumption of the risk. As to Coop, we conclude that summary judgment was properly granted. C. Duty of Care

8 Rowland v. Christian (1968) 69 Cal.2d 108, 112 (Rowland).

9 We recognize that the typical landowner would not know that an unfinished wall could create an unreasonable risk of injury to an individual installing audio/visual cables and wiring, and would probably not owe a duty to the plaintiff. However, to be entitled to summary judgment, this issue must be affirmatively addressed in the undisputed statement of facts with supporting evidence.
In order to establish a duty at trial, plaintiffs must prove that defendants knew or should have known of the condition and its dangerousness. On summary judgment, defendants have the burden of production to negate this factual circumstance. This they did not do. While in horseshoes close may count, in a summary judgment motion it does not. For defendants to prevail on a summary judgment motion they must "throw a ringer."

1. Substantive Law

"The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations]." (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) "[W]hether a duty of care exists in a given circumstance, 'is a question of law to be determined [by the court] on a case-by-case basis.' [Citation.]" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.)

"As a general principle, a 'defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.'" (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435.) Thus, a person "is liable for injuries caused by his failure to exercise reasonable care in the circumstances." (Rowland, supra, 69 Cal.2d at p. 112; see Civ. Code, § 1714.) This duty to conform to the legal standard of reasonable conduct in light of the apparent risk is always the same in negligence cases. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279 (Vasquez),citing Prosser & Keeton, Torts (5th ed. 1984) § 53, p. 356.) The existence of a duty "is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant's protection." (Ludwig v. City of San Diego (1998) 65 Cal.App.4th 1105, 1110.)

"At common law the duties of landowners and occupiers were based upon artificially classifying the plaintiff as either a trespasser, licensee, or invitee." (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 778.) A "trespasser" is generally one who enters or remains upon land without a privilege to do so. (Rowland, supra, 69 Cal.2d at p. 113.) Whether someone is an invitee or a licensee depends upon "'the purpose for which a person is upon the premises of another . . . .‟” (Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739, quoting Popejoy v. Hannon (1951) 37 Cal.2d 159, 169.) Moreover, "an invitee is one who by express or implied invitation is brought or comes on to the premises for the land possessor's advantage, or their mutual benefit or common interest." (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27 (Beauchamp).)

Although the California Supreme Court curtailed these common law classifications in Rowland, it nevertheless reaffirmed the common law notion that the purpose of a plaintiff's presence on the land, though not determinative, may have some bearing on the issue of liability. (Rowland, supra, 69 Cal.2d at p. 119.) Accordingly, "[t]his purpose therefore must be considered along with other factors weighing for and against the imposition of a duty . . . ." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. omitted, disapproved on another point in Reid v. Google, Inc. (2010) 54 Cal.4th 512, 527, fn. 5.) As one court explained: "'[W]hether a possessor of the premises has acted as a reasonable man toward a plaintiff, in view of the probability of injury to him, will tend to involve the circumstances under which he came upon defendant's land; and the probability of exposure of plaintiff and others of his class to the risk of injury; as well as whether the condition itself presented an unreasonable risk of harm, in view of the foreseeable use of the property.'" (Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 487, overruled on another point in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580, quoting Beauchamp, supra, 273 Cal.App.2d at p. 25.)

Rowland thus fashioned the following rule applicable to the facts in that case: "Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it." (Rowland, supra, 69 Cal.2d at p. 119.)¹⁰

10 As stated in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673 (Kinsman), Rowland's "formulation is similar to the Restatement Second of Torts, section 343 . . . : 'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he [¶] (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and [¶] (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and [¶] (c) fails to exercise reasonable care to protect them against the danger.'"

The fact that a condition of property may be open and obvious does not necessarily negate a defendant's duty of care. In Beauchamp, supra, 273 Cal.App.2d 20, the plaintiff, an experienced golfer wearing golf shoes with half-worn spikes, slipped and fell on a concrete path, or veranda, leading from the parking lot to the starting area. (Id. at p. 23.) Although safer means of access to the course were available, it was common practice for golfers to put their golf shoes on in the parking area and walk on this concrete path. (Id. at pp. 23-24.) The plaintiff sued the owners of the golf course for damages and the trial court granted the defendant's motion for nonsuit. (Id. at p. 24.) The Court of Appeal reversed.

Based upon the principles enunciated in Rowland, the Beauchamp court framed the factual issue as one involving "whether the club foresaw or reasonably should have foreseen that as constructed and maintained, there was an unreasonable risk of harm to golfers using the veranda so constructed with due care, wearing golf shoes with metal spikes. Whether or not a different facility should or could reasonably have been provided, should warning of the danger of slipping have been given to users wearing golf shoes with spikes?" (Beauchamp, supra, 273 Cal.App.2d at p. 31.) "[T]he obvious nature of the risk, danger or defect . . . [cannot] be said per se to abridge the invitation given by the possessor of land, or to derogate his [or her] duty of care, so as to make [the possessor's] liability solely a matter of law to be determined on a nonsuit." (Id. at p. 33.)

A similar conclusion was reached in Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179. In that case, the plaintiff brought a negligence/premises liability cause of action against a property owner/possessor, after she slipped and fell on the property owner's wet driveway. In reversing summary judgment for the landowner, the Court of Appeal began its analysis with the acknowledgment that "the allegedly dangerous condition plaintiff encountered—the water and wetness at the area (sidewalk or driveway) where she fell—was 'open and obvious[,]'. . . and plaintiff—who admitted having seen the wetness before stepping on it—did not dispute this." (Id. at p. 1184.)

On the question of "duty," the court noted that the fact "that the hazard was open and obvious did not relieve defendant of all possible duty, or breach of duty, with respect to it." (Martinez v. Chippewa Enterprises, Inc., supra, 121 Cal.App.4th at p. 1184.) More specifically, the court explained that "the pavement appears to have provided a principal if not sole access way from the street to defendant's building," and consequently "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." (Id. at pp. 1184-1185.) Accordingly, pursuant to the "modern and controlling law on this subject," the court held that "'although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger . . . .' [Citations.]" (Id. at p. 1184.) Moreover, "'"[I]t is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. . . .”‟ [Citation.]” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 716-717, quoting Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

Thus, under Rowland and its construing case law, a landowner owes a duty of care to protect against injury to persons foreseeably using the property if he or she knows or should know that a condition of property, when considering all of the circumstances, creates an unreasonable risk of injury; and, while the obviousness of the condition and its dangerousness may obviate the landowner's duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.

This general rule and its relevant considerations are no different under the Privette line of cases. The most pertinent of these cases is Kinsman, supra, 37 Cal.4th 659.¹¹ In that case, the Supreme Court confronted the question of "when, if ever, is a landowner¹² that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowner's premises?" (Kinsman, supra, at p. 664.) There, an employee of an independent contractor hired by Unocal to perform scaffolding work was exposed to airborne asbestos. Years later he developed mesothelioma; he sued Unocal. Following a detailed analysis of Privette, and its citing authority, the court discussed Rowland and the Restatement Second of Torts, section 343, and their applicability to the case at hand. (Kinsman, supra, at pp. 672-673.) First, the court acknowledged that where there is a known safety hazard on the hirer's premises that can be addressed by the independent contractor through the implementation of reasonable safety precautions, liability should not attach to the hiring property owner. (Id. at pp. 673-674.)

11 "The peculiar risk doctrine ensured that 'a landowner who chose to undertake inherently dangerous activity on his land [c]ould not escape liability for injuries to others simply by hiring an independent contractor . . . .' [Citation.]" (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 598.) Privette held "that the hirer of an independent contractor is not vicariously liable to the contractor's employee who sustains on-the-job injuries resulting from a special or peculiar risk inherent in the work." (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 521.) Here, as in Tverberg, we are not dealing with an injury to a third person or an employee of a contractor, we are dealing with an injury to a self-employed contractor. At issue here is whether the landowner is directly liable to an injured volunteer contractor.

12 In a footnote, the Kinsman court indicated that the term "landowner" "is used to refer to either an owner or a possessor of land that owes some kind of duty of care to keep the premises safe." (Kinsman, supra, 37 Cal.4th at p. 664, fn. 1.)

The Kinsman court continued by stating: "However, if the hazard is concealed from the contractor, but known to the landowner, the rule must be different. A landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility, and therefore the landowner would be liable to the contractor's employee if the employee's injury is attributable to an undisclosed hazard. Nothing in the Privette line of cases suggests the contrary. . . . [T]he hirer's liability in such circumstances would be derived from the hirer's rather than the contractor's negligence. [¶] . . . [W]hen the landowner knows or should know of a concealed hazard on its premises, then under ordinary premises liability principles, the landowner may be liable for a resultant injury to those employees." (Kinsman, supra, 37 Cal.4th at p. 674, fn. omitted.)

The court concluded "that a landowner that hires an independent contractor may be liable to the contractor's employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition." (Kinsman, supra, 37 Cal.4th at p. 664, fn. omitted.)

In sum, under Rowland or Kinsman, the law regarding the duty of a landowner/hirer is, for our purposes, the same. A landowner/hirer owes a duty of care to warn an invitee/contractor of a condition which the landowner/hirer knows or should know, under all of the circumstances, creates an unreasonable risk of injury to those using the property in a foreseeable manner.

As to a condition which poses an obvious danger, a landowner maintains a duty to protect the invitee against the risk of injury if “„“the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, [the invitee] might choose to encounter the danger. . . .”‟” (Lopez v. Superior Court, supra, 45 Cal.App.4th at p. 716.) And under Kinsman, a landowner/hirer has an equal duty to protect against a contractor's injury if the contractor's knowledge of the hazard is inadequate to prevent injury. (Kinsman, supra, 37 Cal.4th at p. 673.)

2. Application of Substantive Law to the Issue of Duty as Presented by the Summary Judgment Motion

"'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] Materiality depends on the issues in the case, and what matters are at issue is determined by the pleadings, the rules of pleadings, and the substantive law. [Citation.] 'The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.' [Citation.]" (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172, italics added.)

Here, as part of their allegations relative to defendants' "duty of care," Scharf alleged that he "was working inside the upper ceiling area . . . installing the overhead telephone and technical cabling . . . . Adjacent to this area was a shower stall, which [Scharf] now believes may not [have] been constructed to code; missing . . . dry wall . . . . [¶] . . . [Scharf] alleges that this same ceiling area and/or the walls (including the dry wall areas) in which [Scharf] was working . . . constituted previous substandard construction . . . which was left substandard and incomplete, creating a hazardous condition; and/or was a preexisting hazardous condition that had been constructed, created and/or maintained by [Nelson] and [Calvary]. [¶] . . . Yet, Defendants . . . knew that this faulty, dangerous, unfinished, substandard, unsafe condition, constituted at least one of the areas in which [Scharf] would be forced to traverse in order to complete his requested job duties. Notwithstanding, not one of the Defendants had warned [Scharf] of this condition, . . . despite their knowledge that [Scharf] would be forced to work in this area in order to complete the work requested by [Nelson], within the time deadline dictated by [Nelson]."

To be entitled to summary judgment as it relates to the element of duty of care, defendants therefore had to negate the above "material factual allegation." (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534-1535 [the burden rests with the defendant to affirmatively negate the existence of a duty].)

To negate this material factual allegation as it pertains to the issue of duty, defendants must set forth those material facts that would entitle them to judgment as a matter of law. As explained in Teselle, this is accomplished through the undisputed statement of material facts: "The purpose [of summary judgment] is carried out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed . . . [together with] a reference to the supporting evidence.' 'The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action' [citation], hence the moving party's separate statement must address the material facts set forth in the complaint" (Teselle v. McLoughlin, supra, 173 Cal.App.4th at p. 168, italics added.) As set forth in United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, the purpose of the separate statement is "to afford due process to opposing parties . . . ." "Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail." (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.)

Under the present facts, it was incumbent on defendants to set forth in their separate statement of undisputed facts clear statements negating the element of duty. As our discussion of the law of duty indicates, Scharf must establish that defendants knew or should have known of the condition and that it posed an unreasonable risk of injury.¹³ To negate this aspect of duty, defendants must set forth in their separate statement of undisputed facts (supported by competent evidence) that they did not know nor should have known of the condition and its dangerousness. This the Church defendants did not do.

13 The facts relating to whether the condition posed an unreasonable risk of injury will be discussed, infra.

While the Church defendants did set forth undisputed facts that they did not control or direct Scharf as to the manner in which the job was to be completed, there is nothing in the separate statement indicating that they did not know of the condition or its risk-creating potential. The closest statement addressing this issue is undisputed material fact No. 16, wherein it is stated: "Nelson had no experience as an electrician; his only construction-related experience was as a painter."¹⁴ This statement simply does not address the issue of whether the Church defendants knew or should have known about the condition and its risk-creating potential. As such, the Church defendants failed to meet their initial burden of production as it relates to this all important consideration.

14 For this proposition, defendants cite to the following colloquy in Nelson's deposition: "Q. You don't know anything about how the electricity gets from one place to the ceiling? [¶] A. I'm a painter, not an electrician." Initially, we point out that the evidence relied on does not entirely support the undisputed fact. Further, the undisputed fact and supporting evidence does not necessarily lead to the conclusion that the Church defendants did not know of the condition and its risk-creating potential to individuals similarly situated to Scharf.

We now move to discuss the other factual considerations in analyzing duty, bearing in mind that summary judgment is a "drastic remedy." (See Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) As stated in Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289 and 290: "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied." (Italics added.)

The Church defendants argue that even if they were aware of the missing wallboard on the shower room side of the wall, Nelson had no duty to warn or protect Scharf against it if that condition was not dangerous; i.e., if it did not create an unreasonable risk of injury to those using the property in a foreseeable manner. "'"[A]s to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, [and] each case must depend upon its own facts." [Citation.]'" (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28, fn. omitted.) In determining whether a condition creates an unreasonable risk of injury to foreseeable users, we must take into consideration not only the condition itself, but also the likelihood and manner in which individuals may foreseeably encounter it.¹⁵ As such, if "'sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule . . . the defect is not dangerous as a matter of law.'" (Ibid., fn. omitted.)

15 While a two-inch deviation between slabs in a sidewalk may not create an unreasonable risk of injury to a bicyclist, it may well create such a risk to an elderly pedestrian; just as a blind intersection may create an unreasonable risk of injury to a motorist, but not to a pedestrian.

Here, the record clearly supports a determination that Scharf was a "business invitee" at the time of injury. "An invitee or business visitor is generally defined as a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them." (Clawson v. Stockton Golf Etc. Club (1963) 220 Cal.App.2d 886, 889.) Scharf entered the premises upon Nelson's request that Scharf volunteer his expertise in the remodeling of the church, and remained thereon after agreeing to do so. Moreover, the injury at issue occurred while he was acting within the scope of this invitation, specifically, as he attempted to complete the installation of the communication network.

Under Kinsman, Scharf, as a volunteer contractor, was clearly performing work in an area contemplated under his agreement with Nelson. As such, Scharf was a foreseeable user of the property dealing with the property in a reasonably foreseeable manner.

The evidence demonstrates that the shower room side of the wall was unfinished. Defendants' expert declared that the wallboard on the shower room side of the wall was approximately two feet shorter than the wallboard on the office side of the wall. Although defendants' expert declared that the subject wall was nonload bearing and not required to have full-height drywall, plaintiffs' experts declared that the wall was not built to code and lacked proper anchoring and bracing. Plaintiffs' experts further indicated that the wall was not documented in any of the plans and was not permitted.

Scharf stated that when he pushes wires through the holes at the top of a wall, they will normally hit the opposing wallboard and move down the interior of the wall to the intended electrical outlet. He testified that on this occasion when he pushed the wires they did not move down the wall. In order to determine what the problem was, he hoisted himself onto the sill on top of the wall and noticed that the wallboard on the shower room side of the wall did not go to the top and that his wire was escaping and dangling out into the shower room. Upon redirecting the wire, he fell. He further declared that he "would have never been forced" to get into the area above the ceiling had the wire not been allowed to escape. (Italics omitted.)

While the condition of an unfinished wall might not create an unreasonable risk of injury under most circumstances, it nonetheless can create a significant risk of injury to individuals "pulling wire" to various electrical outlets, who depend upon certain structural components being present. Here, there were no plans showing the shower room or the unfinished nature of the wall to which Scharf could look for guidance. The electrical outlet to which the wire was to be pulled had been previously cut out from the wallboard in the secretarial office and had been discussed with Nelson. Scharf was informed that the telephone company was coming the following morning and that the wiring needed to be done by then. Upon realizing that the wires were not moving down the wall as expected, it is reasonable that an individual in Scharf's line of work would attempt to determine the nature of the problem by hoisting himself onto the top of the sill to investigate. At the time of the incident, the only access into the room with the unfinished wall was a doorway which was blocked by a refrigerator and microwave. Because Scharf was not informed of the doorway to the shower room—a doorway which would have provided Scharf with a means to deal with the issue from the shower room side of the wall—it is foreseeable that he would attempt to deal with the problem in the manner that he did and, for one reason or another, fall.¹⁶ Given this setting, triable issues of fact exist as to whether the unfinished wall created an unreasonable risk of injury to individuals in Scharf's position, giving rise to a duty on the part of the Church defendants to either warn of or abate the condition.

16 The evidence indicates that two people were required to move the refrigerator. There is no indication in the record that Scharf was aware of this means of access.

Here, Scharf was using the property in a foreseeable manner consistent with the reason for his being on the property. In so doing, he was exposed to a risk of injury because of the unfinished nature of the shower room wall. And while an unfinished wall may not create an unreasonable risk of injury to those encountering it under different circumstances, there is nonetheless under the present circumstances a triable issue of fact as to whether the condition created an unreasonable risk of injury to Scharf of which the Church defendants had a duty to warn or otherwise protect Scharf against. (See Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57 ["One may be held accountable for creating even "'the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.”‟”].)¹⁷

17 Defendants argue that the "shower room improvement" did not present a risk of harm and therefore there was not a dangerous or defective condition of property. More specifically, defendants explain, "unlike . . . a hidden hole on property that someone could step into and sustain injury, the shower room itself poses no danger to anyone" and consequently no duty to warn thereof. In support thereof, defendants rely on Bisetti v. United Refrigeration Corp. (1985) 174 Cal.App.3d 643, where an individual brought an action against the landlord/owner after he fell into a vat of acid while trespassing on said property. (Id. at pp. 646-647.) There, the issue was whether a landlord's knowledge of a condition on the premises was sufficient to trigger a duty of care and override the public policy considerations which have historically precluded liability where the leased property is under the sole control of lessee. (Id. at pp. 649-651.) While the appellate court upheld the trial court's grant of summary judgment in favor of the landowner, its reasoning was not couched on the specifics of the condition that was alleged to be dangerous, nor was it premised upon the conduct of the occupying lessee. Instead, the question of "ordinary care" focused on the landowner, and the circumstances of injury were discussed within the context of the intended use of the property and the underlying purpose of the lease agreement. The court explained the acid vats were part and parcel of the metal stripping operation for which the land was leased and "their existence would not, in and of itself, be considered such a dangerous condition as to be the basis of the imposition of liability upon a landlord having knowledge thereof, if an accident should occur to a trespasser." (Id. at p. 650.) Further, the court concluded that under this unique factual scenario, "the existence of the vats did not cause any danger to the public at large or even persons safely comporting themselves on the premises. The vats were no more dangerous than any normal mechanical equipment in industry, when used in the proper and cautious manner for which it is intended." (Ibid.)

A triable issue of fact also exists as to the obviousness of the condition and its risk-creating potential. It is clear that Scharf did not know that the wall of the shower room was unfinished. It would appear that triable issues exist as to whether the condition was concealed to such an extent that Scharf was unable to appreciate the condition and the risk it created until he had already hoisted himself onto the top of the sill. As such, in order to discover the defect, he had to expose himself to the risk created by the defect.¹⁸

18 In Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, an independent contractor was injured while accessing the defendant homeowner's roof for purposes of installing a satellite dish. The injury occurred as he was attempting to get on the roof by stepping onto a roof extension, or awning. In affirming summary judgment, the Court of Appeal relied on the general rule enunciated in Kinsman that a hirer is not liable where the contractor has failed to engage in an inspection of the premises involved in his work. In so holding, the court stated that "[t]he alleged hazard—the roof extension—was not a concealed preexisting hazard. The roof extension was fit for its intended and obvious purpose as a small roof that provided rain shelter." (Gravelin v. Satterfield, supra, at p. 1216.) The court continued by indicating that the "unsuitability of the roof extension for [gaining access to the roof] was open and obvious." (Id. at p. 1217.) "Plaintiff himself described the roof extension as an 'awning.'" (Ibid.)And, as explained by the court, it was solely the plaintiff who decided to use the awning to gain access to the roof. (Ibid.)
Here by contrast, Nelson walked through the project with Scharf. The outlet to which Scharf was to direct the wire had already been cut out from the wallboard in the secretarial office; thus it was necessary for Scharf to access the ceiling area over that specific wall. Plus, unlike Gravelin, there is here a triable issue as to whether the condition was open and obvious to Scharf before he exposed himself to the condition.

Under the Rowland line of cases, to the extent Scharf was aware of the dangerous condition and nevertheless encountered it by climbing onto the wall, his actions must be considered in light of the time constraints to finish the job by the following morning and the fact that there was no apparent way of completing the job other than by doing as he did. And given the time frame within which he gained knowledge of the condition, it was arguably too late to prevent his injury. (See Kinsman, supra, 37 Cal.4th at p. 673.)

Further, and assuming that the Church defendants knew of the condition and its risk-creating potential, the policy considerations set forth in Rowland, supra, 69 Cal.2d at page 113, do not negate a finding of duty. As set forth in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at page 675, footnote 5, those policy considerations include "'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.'"

Within this context, foreseeability is a question of law for the court. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 516.) A conclusive determination thereof is appropriate "only if, 'under the undisputed facts there is no room for a reasonable difference of opinion.'" (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56.) As explained by the California Supreme Court: "In pursuing this inquiry, it is well to remember that 'foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.' [Citation.] . . . Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm—e.g., being struck by a car while standing in a phone booth—not its precise nature or manner of occurrence." (Id. at pp. 57-58.) In analyzing duty, the court's focus “'“is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally 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." [Citation.]'" (Scott v. Chevron U.S.A., supra, at p. 516.) Thus, "foreseeability with respect to duty is determined by focusing on the general character of the event and inquiring whether such event is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct . . . ." (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1262 [Fourth Dist., Div. Two].)

Here, the general nature of the alleged negligent conduct is the failure of defendants to warn of or ameliorate a concealed condition which will be encountered by an individual who is working at or above ceiling height. Clearly, in dealing with an unexpected condition, there is a foreseeable risk of falling. Defendants concede as much when they state: "Scharf sustained injury while performing an aspect of his job that carried an inherent risk of injury. Surely no one can contest installing audiovisual cables through ceilings and walls—often requiring use of a ladder or otherwise being placed in elevated locations—exposes one to many risks, including the risk of falling and sustaining injury."

As to the "closeness of connection" and "moral blame," we begin by saying that it is doubtful that a typical landowner would realize or appreciate the risk created by an unfinished wall to an individual running audio/visual wiring. In such a scenario, one's duty under the factors laid out in Rowland and Kinsman (premises liability), would probably be nonexistent. The "closeness of connection" and "moral blame" factors would weigh against finding a duty.

Here, however, assuming the Church defendants knew or should have known of the condition and its risk-creating potential, the closeness of connection and moral blame would be patent. Clearly under such a scenario, if a defendant with knowledge of the condition and its risk-creating potential had notified Scharf of the condition, he would probably have taken precautions so as to complete the job in a safe and workmanlike manner.

In short, as to the element of knowledge—i.e., whether the landowner knew or should have known of the condition and its risk-creating potential—we conclude that the Church defendants failed to meet their initial burden of production. Assuming for purposes of the present motion that the Church defendants knew or should have known of the condition and its risk-creating potential, triable issues of material fact exist as to the other considerations of duty.

3. Defendants Failed to Satisfy Their Initial Burden of Production That Scharf Impliedly Assumed the Risk

Relying primarily on this court's decision in Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 (Hamilton)[Fourth Dist., Div. Two], defendants argue that they had no duty to warn or protect Scharf because he impliedly assumed the risk of injury. We believe defendants misconstrue Hamilton.

Within the employment setting, implied assumption of the risk applies when the plaintiff is injured as a result of "the very negligence that makes [his or her] employment necessary" and the defendant's conduct or lack thereof does nothing to increase the risk of injury inherent in the employment.¹⁹ (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538-541 (Neighbarger).)Defendants failed to satisfy their initial burden of production in both respects.

19 We also note that at the trial level defendants did not raise the issue of implied assumption of the risk as a basis for granting its motion for summary judgment. An argument not raised at the lower court to support the granting of summary judgment is arguably forfeited and may not be raised for the first time on appeal. As indicated in Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 355, "[a]lthough the trial court in denying [defendant's] motion for summary judgment referred to his affirmative defense . . . he had not argued there were no triable issues regarding that defense in moving for summary judgment. Accordingly, he in effect forfeited or waived that argument below and may not now raise it on appeal as a basis to challenge the trial court's denial of his motion for summary judgment." (Fns. omitted.) We nonetheless address the argument on its merits.

The crux of defendants' argument is: "Like the plaintiff in Hamilton . . . Scharf sustained injury while performing an aspect of his job that carried an inherent risk of injury. Surely no one can contest installing audiovisual cables through ceilings and walls—often requiring use of a ladder or otherwise being placed in elevated locations— exposes one to many risks, including the risk of falling and sustaining injury." As previously discussed, we fully agree with defendants. The risk of falling is not only an inherent risk of installing audio/visual wiring, but also a foreseeable one. Crucial, however, to the issue of assumption of the risk within the employment setting is whether the plaintiff was injured by the very hazard he was hired to confront and whether the defendants' conduct or lack thereof increased the risk of that already inherent in the employment. (Neighbarger, supra, 8 Cal.4th at p. 541; Hamilton, supra, 110 Cal.App.4th at pp. 1022-1027.)

In Neighbarger, the plaintiff was employed by an oil company as a safety supervisor with special training in firefighting. (Neighbarger, supra, 8 Cal.4th at p. 535.) A maintenance worker employed by a third party caused a valve to release a flammable petroleum product. When the plaintiff moved to shut off the valve, the escaping product ignited, burning the plaintiff. He sued the employer of the maintenance worker for damages. (Ibid.)

The trial court granted the defendant's summary judgment motion and the Court of Appeal affirmed, holding that a private safety employee assumes the risk of injury when the employee responds to emergencies on the job. (Neighbarger, supra, 8 Cal.4th at p. 536.) Both the trial and appellate courts further held that the plaintiff's claim was barred by the firefighter's rule. Under this rule, one who negligently starts a fire owes no duty of care to assure that the firefighter who responds to the fire is not injured thereby. (Id. at p. 538.)

The Supreme Court reversed. In so doing, it explained that the firefighter's rule should be viewed as an example of the proper application of the doctrine of assumption of the risk. (Neighbarger, supra, 8 Cal.4th at p. 536.) The court further indicated: "We have never held that the doctrine of assumption of risk relieves all persons of a duty of care to workers engaged in a hazardous occupation." (Id. at p. 538.)

Although the firefighter's rule had been based in part on the fact that a firefighter, with knowledge of the risks, voluntarily confronts that risk, the Neighbarger court declared that the rule can no longer "be said to rest on the plaintiff firefighter's voluntary acceptance of a known risk of injury in the course of employment, and we disregard that element of the justification . . . ." (Neighbarger, supra, 8 Cal.4th at pp. 539, 541.) Instead, the Neighbarger court explained that, in determining whether a duty of care was present, the focus of the inquiry must be "the nature of the defendant's activities and the relationship of the plaintiffs and the defendant to that activity . . . ." (Id. at p. 541.) "„[I]t may be accurate to suggest that an individual who voluntarily engages in a potentially dangerous activity . . . "consents to" or "agrees to assume" the risks inherent in the activity . . . itself . . . . But it is thoroughly unrealistic to suggest that, by engaging in a potentially dangerous activity . . . , an individual consents to (or agrees to excuse) a breach of duty by others that increases the risks inevitably posed by the activity . . . itself, even where the participating individual is aware of the possibility that such misconduct may occur.' [Citation.]" (Id. at p. 537.)

In finding that assumption of the risk did not apply to its facts, the court indicated that while the firefighter's rule may protect the defendant who negligently starts a fire from liability based on the starting of the fire, it does not protect the same defendant from independent acts of negligence. (Neighbarger, supra, 8 Cal.4th at pp. 538, 541.) That is, although the firefighter cannot complain about a defendant's negligence in starting the fire because it is the very reason for the firefighter's employment, the firefighter may complain if the defendant does some independent act which increases the risk of injury above that which is already inherent in the employment.

Hamilton is in accord. There, a probation corrections officer was involved in unarmed defensive tactics training. (Hamilton, supra, 110 Cal.App.4th at p. 1016.) She was injured when she was performing a ground fighting maneuver with the instructor. (Id. at pp. 1017-1018.) She sued the instructor. In affirming summary judgment on implied assumption of the risk and the firefighter's rule, the court indicated that the plaintiff could not complain about receiving an injury while training to do a physical maneuver which was the “„“„“„“very occasion for [plaintiff‟s] engagement.”‟”‟”‟” (Id. at p. 1023.) Further, nothing the instructor did during the training increased the risk of injury otherwise inherent in the maneuver itself. (Id. at pp. 1026-1027.)

Here, if Scharf had been hired to remedy the unfinished wall and had fallen in the process of doing so, and there was no independent act by defendants that increased the risk of injury, Scharf could not complain; the reason for his employment would have been to remedy the unfinished wall and defendants would have done nothing to increase the risk of injury above that already inherent in that employment. However, such is not the case under our facts. Here, the reason for Scharf's employment was not the repair of an unfinished wall, but rather the installation of wiring and cables for an audio/visual system. As such, defendants' assertion of implied assumption of the risk falls short.

Moreover, while Scharf could be said to assume some risk of falling in connection with his work, he does not assume the increased risk of injury that results from the failure to warn him of or abate a concealed condition of which defendants know or should know creates an unreasonable risk of injury. By not informing Scharf of the condition, he was unable to take appropriate precautionary steps so as to safely encounter the condition, or avoid it. As a result, defendants' conduct, or lack thereof, arguably increased the risk of injury inherent in his work.²⁰

20 See Bartholomew v. Klingler Co. (1975) 53 Cal.App.3d 975 (where a police officer stated a cause of action against a property owner for injuries received when falling through a concealed opening in a ceiling, where the property owner knew of the condition and its risk-creating potential, and failed to warn the officer thereof).

Defendants' separate statements of undisputed facts with supporting evidence are therefore deficient in multiple respects in that they do not address these necessary considerations. D. The Church Defendants Failed to Negate the Element of Causation

Defendants argue summary judgment was proper because the undisputed evidence proves that their failure to advise Scharf of the "shower room improvement" did not cause his injury. They contend (1) the reason Scharf suffered injury was his decision to work in the manner he did, not their failure to tell Scharf about the shower room, and (2) nothing in the record shows Scharf's knowledge of the shower room would have altered his behavior.

In a negligence action the plaintiff must allege the defendant's act or omission was a cause of the plaintiff's injury. (Vasquez, supra, 118 Cal.App.4th at p. 288.) The element of causation consists of two separate questions: (1) was the defendant's conduct the cause in fact of the plaintiff's injuries, and (2) are there policy factors that may preclude the imposition of liability. (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1596.) The second question "is a normative or evaluative one that asks whether the defendant should owe the plaintiff a legal duty of reasonable care under the circumstances of the case." (Vasquez, supra, at p. 288.) Because we have concluded that the relevant policy considerations suggest that the Church defendants owed a duty to Scharf, assuming they knew or should have known of the condition and its risk-creating potential, the second question of causation is already answered.

As to the first component of causation, the question of cause-in-fact is resolved "if the defendant's act or omission is 'a substantial factor' in bringing about the plaintiffs injury." (Vasquez, supra, 118 Cal.App.4th at p. 288.) "'A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.'" (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1025, quoting CACI No. 430.)

The question of causation is "factual, and thus constitute questions for the jury." (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 399.) Ordinarily, this issue may not be resolved on summary judgment. (Vasquez, supra, 118 Cal.App.4th at p. 288, citing Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) However, while a court may properly examine the causal nexus of the alleged injury at the demurrer stage (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1190), a grant of summary judgment is improper unless from the undisputed facts "'only one reasonable conclusion could be drawn'" (Pacific Sunwear of California, Inc. v. Olaes Enterprises, Inc. (2008) 167 Cal.App.4th 466, 484).

Here, as the moving parties, defendants have the burden of demonstrating as a matter of law that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Defendants argue "[t]he reason why Scharf suffered injury was his decision to work in the manner he did, not the failure of [defendants] to tell Scharf about the shower room." Moreover, they contend that "Scharf fell because he lost his balance while perched precariously on the sill of the wall . . . [a]nd nothing in the record shows Scharf's knowledge of the shower room would have altered his behavior."

To support the assertion that the failure to inform Scharf of the shower room was not a substantial factor in causing the accident, defendants cite Huitt v. Southern California Gas Co., supra, 188 Cal.App.4th at page 1603 for the proposition that "causation cannot be established without evidence that the plaintiff would have acted differently if provided with a warning." In Huitt, the question before the court was the sufficiency of evidence to support a jury verdict in favor of the plaintiff. As such, Huitt is procedurally distinguishable because its inquiry into "causation" focused on whether the plaintiff satisfied the burden of proof beyond a preponderance of evidence, and its analysis thereof came after each party presented its case before a jury. Substantively, however, Huitt remains instructive because in ruling upon the validity of a summary judgment on the element of causation, the moving party bears the initial burden of production. Accordingly, it thereby follows that here, on the issue of causation, defendants have the burden to demonstrate that Scharf would not have acted differently had he in fact been informed of the existence of the "shower room improvement."

We agree with defendants that Scharf alone chose to climb atop the wall so as to accomplish the installation of the audio/visual communication cables. That being said, within the context of causation, this evidence communicates little as to the antecedent circumstances which may have led to this decision. Here, defendants failed to submit undisputed facts with supporting evidence that Scharf would not have conducted himself differently had they told him of the condition. As such, they failed to meet their burden of production on the issue of causation. E. The Trial Court Properly Granted Summary Judgment in Favor of the Coop Defendants on the Basis That They Owed No Duty of Care to Plaintiff

"Historically, the public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition." (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510.) "The rationale for this rule has been that property law regards a lease as equivalent to a sale of the land for the term of the lease." (Id. at p. 511.) As explained by Prosser: "'In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. Consequently it is the general rule that he is under no obligation to anyone to look after the premises or keep them in repair, and is not responsible, either to persons injured on the land or to those outside of it, for conditions which develop or are created by the tenant after possession has been transferred.'" (Uccello v. Laudenslayer, supra, at p. 511.)

In considering whether to impose liability upon a landowner for injuries incurred from a dangerous condition on the premises, the California Supreme Court has explained that "'the duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises."" (Preston v. Goldman (1986) 42 Cal.3d 108, 119, quoting Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368.) Moreover, “„“[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations] because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land."'" (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157-1158, quoting Sprecher v. Adamson Companies, supra, at p. 368.) As such, it is the "'person who is in occupation of the land with intent to control it'" that may be held liable for injuries caused by a dangerous condition of land. (Alcaraz v. Vece, supra, at p. 1159.)

With that said, while the Rowland court determined that those who hold only nonpossessory interests in land are not fully bound by the obligations set forth in Civil Code section 1714, this is not to say that a landowner is always exempt from liability for dangerous conditions of property. (Leakes v. Shamoun (1986) 187 Cal.App.3d 772.) Rather, "when a landlord has actual knowledge of a dangerous condition, the courts have recognized that his ability to remove the condition might be hampered by his tenants' rights under a lease. Thus, in addition to showing actual knowledge of a dangerous condition, an injured person must also show that the landlord had the right and ability to cure the condition." (Id. at p. 778, citing Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 514.)

Here, as owner of the property, the Coop defendants initially leased the premises to Calvary Chapel sometime in the 1980's. Subsequently they entered into another lease around January 31, 1995. At no time immediately following the expiration of the initial lease nor anytime thereafter, did Donald Coop inspect the premises in his capacity as landlord, or hire a general contractor for the purpose of repairs or maintenance for the premises. Instead, the record suggests that up until the time of the incident, Coop's involvement with the subject property was limited to the outside landscaping of Calvary Chapel, which was addressed on an as needed basis, and when those particular occasions arose, Coop simply sent some of his employees from his personal ranch to perform the work.

Further, the original blueprint of the subject property was of an unimproved building, and all of the internal work performed on the church since entering into the initial lease was done by a firm hired by the church. While Coop recalls receiving documents, including, but not excluding, building permits, whereby Calvary Chapel sought permission to remodel the subject property and "put up walls," Coop does not recall having ever received any documentation concerning the building of a "shower room improvement." Moreover, at no time prior to the incident had Coop ever been informed by anyone associated with the leased property that Calvary in fact built a "shower room improvement."

The Coop defendants' undisputed statement of facts and supporting evidence establish that they were not involved in the construction of the improvements and had no knowledge of their existence. Summary judgment was properly granted.

IV. DISPOSITION

The judgment in favor of Coop is affirmed. The judgment in favor of Calvary and Nelson is reversed. We direct the trial court to enter a new order denying Calvary and Nelson's motion for summary judgment.

Coop is awarded his costs on appeal from Scharf. As to Scharf and the Church defendants, each party is to bear its own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING

J.
I concur: MILLER

J.

RICHLI, J., Concurring and Dissenting.

Despite the majority opinion's many references to a "dangerous condition" (e.g., maj. opn., ante, at p. 29) and an "unreasonable risk of injury" (e.g., maj. opn., ante, at p. 18), it fails to convince me that there was, in fact, any dangerous condition that presented any unreasonable risk of injury.

Quite the contrary — in my view, the Church defendants²¹ demonstrated, beyond a triable issue of fact, that there was no dangerous condition whatsoever; hence, they had no duty to remedy or to warn Scharf. I therefore dissent in part.

21 I use the majority's short cite references to the parties. (See maj. opn., ante, p. 2.)

I

FACTUAL BACKGROUND

The majority's statement of facts is generally accurate, but I would supplement it as follows.

To pull wire, Scharf had to go up a ladder into the ceiling area so he could access the sill — the top edge of the wall. Once there, he would drill a hole (or holes) in the sill and insert wire. If the wire goes down to the target outlet, he testified, "you're successful"; if not, "then you have to figure out what's gone wrong." And "[i]f you have something wrong, . . . then you have to usually . . . get[] up on the wall so you can find out why it's not going down."

He needed to make his last wire pull in a secretary's office. He placed a ladder on a built-in counter. He went up the ladder and removed a couple of the ceiling tiles to get access to the wall. He then poked his head up about two feet into the ceiling area.

The wall was three and one-quarter inches thick. It was stable and built in conformity with all applicable building codes. The sill of the wall consisted of a two-by-four, which would normally be sandwiched between two pieces of drywall.

Scharf drilled a hole into the sill, then inserted wire into the hole. However, the wire did not show up at the outlet. He "pulled [him]self up on . . . [his] stomach so [he] could get [his] head over the wall so [he] could see . . . what[ wa]s on the other side of the wall." He had performed this balancing maneuver "a thousand times"; he had done it once already during his work on the church. He described it as "standard practice."

From this position, he could see that, on the other side of the wall, there was a small room containing a refrigerator and a shower. He also noticed that the drywall on the other side of the wall did not go all the way up to the sill. On the near side, the drywall went up 10 feet; on the far side, it went up only eight feet. For that reason, the wires "would not fall down the wall. They walked away . . . into space."

That is the last thing Scharf remembers from before he fell. He admitted that he does not know how he fell.

II

THE CHURCH DEFENDANTS DID NOT EXPOSE SCHARF

TO ANY UNREASONABLE RISK

Crucially, it is undisputed that Scharf has no idea why he fell. Ordinarily, this would mean he cannot show causation — if he does not know why he fell, then, a fortiori, he cannot say that anything the Church defendants did or did not do caused him to fall.

Understandably, then, Scharf has shifted the issue from "Why did he fall?" to "Why was he up on top of the wall in the first place?" This would seem to help Scharf, because it reestablishes but-for causation. If he had not been on top of the wall, he could not have fallen. Thus, almost by definition, balancing on top of the wall was the but-for cause of the fall.

Scharf should still lose, however, because the evidence demonstrated that balancing on top of the wall did not present an unreasonable risk of injury. He testified that it was "standard practice," a commonplace activity that he had carried out "a thousand times." Yes, it is always foreseeable that one may fall while balanced on the top of a wall, just as it is always foreseeable that one may fall while going down stairs. The owner of a flight of stairs, however, is not liable merely because the plaintiff fell down them; rather, the plaintiff must show that the stairs were in an unsafe or dangerous condition. (Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143, 145-146.) Here, there was nothing unsafe about the wall or about the concealed shower room next door.

This case resembles Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012. There, the defendant hired a contractor to remodel a building she owned. The contractor, in turn, hired plaintiff Zaragoza to work on the project. (Id. at p. 1015.) Zaragoza used a ladder that he found at the site (ibid.); the court assumed that it belonged to the defendant. (Id. at p. 1023, fn. 9.) While Zaragoza was on the ladder, trying to pull a nail out of some drywall, "the momentum of his movement caused the ladder to slip," and he fell. (Id. at pp. 1015-1016.)

The court held that the defendant was entitled to summary judgment because there was no evidence that she was negligent. (Zaragoza v. Ibarra, supra, 174 Cal.App.4th at pp. 1022-1023.) It explained: "Zaragoza was the sole person who placed, adjusted, and then climbed the ladder before he fell. There are no allegations that the ladder was defective. Zaragoza simply engaged in a maneuver from a height of nine feet that any ordinary adult person would know posed significant risk. [Citation.] Short of ordering Zaragoza not to get nine feet up on a ladder and try to pull a nail out of some drywall, there was nothing Ibarra could have done to prevent the accident." (Id. at p. 1023, fns. omitted.)

Here, identically, Scharf chose to balance on the wall. Any ordinary adult person would realize that this posed a significant risk of falling. However, it was not an unreasonable risk. Rather, it was a risk that Scharf willingly encountered on a regular basis as part of his vocation. The Church defendants did absolutely nothing to increase that risk.

The majority's theory apparently is that the Church defendants had a duty to warn Scharf that the drywall did not go all the way up, because then he would have known why his wires were not dropping down properly; moreover, they had a duty to warn him that there was a concealed room, because then he would have fixed the problem by going through the door to the concealed room rather than by balancing on the wall. ²² Once again, however, they had no duty to warn him of these conditions — nor of any other conditions that might have caused him to balance on a wall — because balancing on a wall was not unreasonably risky.²³

22 I call it "the majority's theory" rather than "Scharfs theory" because Scharf never asserts any such theory in his briefs. To the contrary, in his statement of facts, he claims: "Upon climbing onto th[e] wall, Mr. Scharf was surprised to discover this hidden room, which caused him to immediately fall off the wall and suffer severe injuries." Thus, his theory appears to be that plaintiffs had a duty to warn him about the concealed room to prevent him from losing his balance as a result of being startled. The problem with this theory is that the record fails to support Scharfs claim. As already mentioned, he cannot show why he fell.

23 There is an additional problem with this reasoning. A refrigerator was blocking the door, and it would have taken two people to move it. Scharf was all alone; he was striving to get the work done before morning. This evidence carried defendants' burden of proving lack of causation — even if they had given Scharf all the warnings that the majority asserts he should have had, he would not have done anything differently. And Scharf offered no contrary evidence.

Under the majority's theory, a homeowner who hires a handyman to do work that requires him to go up and down a ladder 50 times a day would have a duty to disclose information that would prevent him from going up and down one more time, because that might be the time he falls. Likewise, a homeowner who hires a chef to cater a dinner for 50 people would have a duty not to ask the chef to prepare one more meal, in case of an extra guest, because that might be the time the chef suffers burns.

As these examples suggest, the majority is essentially engaging in backwards reasoning — because we now know that Scharf sustained a horrendous injury, the Church defendants must have had a duty to do whatever, in hindsight, would have prevented it. That is not the law. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 538 [hindsight is not the standard for determining duty].)

In its quest to find something dangerous about the wall, the majority states that "plaintiffs' experts declared that the wall was not built to code and lacked proper anchoring and bracing." (Maj. opn., ante, at p. 26.) That is incorrect. Admittedly, a declaration by Zoran Windrich, an expert, expressing these opinions, was in evidence. Defendants introduced it, along with evidence that Scharf had since de-designated Windrich and retained a different expert. Their point was that Scharf had abandoned these theories. Thus, Windrich's opinions were not introduced for their truth; indeed, they were inadmissible for their truth. (Code Civ. Proc., § 2034.300, subd. (a).)

In any event, Scharf could not show why he fell; thus he could not show that he fell because the wall "lacked proper anchoring and bracing" or was not built to code. Indeed, although it is never stated in so many words, the only reasonable inference is that the wall was found to be intact after Scharf's fall.

Thus, I dissent from the majority's opinion to the extent that it reverses the judgment against the Church defendants. However, I concur in the majority's opinion to the extent that it affirms the judgment against Coop.

RICHLI

Acting P. J.