Opinion
B232656
01-23-2012
DARLENE TRUJILLO, Plaintiff and Appellant, v. MARIA COSIO et al., Defendants and Respondents.
Verlato and Roberts and April A. Verlato for Plaintiff and Appellant. Law Offices of Wesierski & Zurek and Kevin D. Campbell for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PC045335)
APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara M. Scheper, Judge. Reversed.
Verlato and Roberts and April A. Verlato for Plaintiff and Appellant.
Law Offices of Wesierski & Zurek and Kevin D. Campbell for Defendants and Respondents.
In this premises liability case, a triable issue of material fact precludes summary judgment. There is a material dispute regarding whether a reasonable inspection would have revealed a defect in a brick archway, causing it to collapse. We reverse the judgment.
FACTS AND PROCEDURE
On December 29, 2008, appellant Darlene Trujillo attended a birthday party at respondents Maria Cosio and Joel Verduzco's home. A pinata was hung from a rope between a tree and a brick archway in front of respondents' property. After the pinata was opened, appellant bent down to grab candy, and the archway fell on her right hand. Appellant claims that she was injured.
The archway that collapsed had been built at the request of the prior owner of the property. Neither the prior owner nor respondents noticed any visible defect in the archway. The prior owner did not inform respondents of any defect in the archway.
On May 5, 2009, appellant sued respondents for negligence based on premises liability. On November 5, 2010, respondents moved for summary judgment on the ground that they had no actual or constructive notice of the dangerous condition. Defense expert Lawrence Otsubo, a civil engineer, determined that the archway was not properly anchored to the supporting pillars to protect the arch from falling with the pressure applied to it by the pinata. Otsubo stated that the defect was latent.
Appellant opposed the motion for summary judgment, arguing that respondents had constructive notice of the defect and that the defect was not latent because respondents could have investigated the building permits. Appellants attached the declaration of Mark Burns, a civil engineer. Burns opined that the archway was built in violation of applicable building codes and was not permitted. Burns opined that a building inspector "would have required that the archway be anchored with rebar to the underlying pilasters . . . ." Burns further opined that respondents "knew or should have known that the fence, including the archway, was illegal construction" because the permit file on the property did not include a permit for the archway. Burns concluded that "a reasonable property owner would have thoroughly tested the archway to ensure it was capable of withstanding such horizontal forces before allowing children to enter into the area." He believed respondents should have "pulled the rope up and down on at least twenty occasions to ensure the brick archway was structurally sound and safe."
The court granted respondents' motion for summary judgment. It found Burns's declaration regarding the obligation of buyers of residential property lacked foundation.The trial court further found respondents did not have actual or constructive notice of the latent defect within the archway. Judgment was entered March 22, 2011. This timely appeal followed.
The parties dispute this conclusion on appeal. We agree that there was no foundation indicating that Burns was qualified to opine on residential real estate purchases. His declaration indicates that he has a background in civil engineering and has qualified as an expert in engineering, but does not show any background in real estate.
DISCUSSION
Summary judgment is appropriate where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ." (Code Civ. Proc., § 437c, subd. (c).) Appellant's principal argument is that the court erred in concluding that respondents had no duty to inspect the archway.
Appellant also argues that the court erred in its tentative ruling when it found the archway collapsed because it was not properly anchored. We may summarily reject this argument because the tentative ruling is not a binding decision and because both sides' experts agreed that the archway collapsed because it was not properly anchored.
The trial court concluded respondents had no actual or constructive notice of the defect in the archway. It is undisputed that appellant must show respondents had either actual or constructive knowledge of the defect in order to impose liability on respondents. The crux of the parties' dispute is whether the visual inspection in this case constituted reasonable care under the circumstances.
Appellant argues that respondents had constructive knowledge of the defect because a reasonably prudent person would have tested the archway by pulling on the rope attached to the archway before hanging a pinata from it. Respondents counter that a visual inspection constituted reasonable care under the circumstances, and a property owner is not liable for injuries resulting from a condition that "could not have been discovered through ordinary or usual inspection or care." (Reinhard v. Lawrence Warehouse Co. (1940) 41 Cal.App.2d 741, 744 (Reinhard); see also Garner v. Pacific Electric Railway Co. (1962) 202 Cal.App.2d 720, 727 (Garner) ["The invitor must use ordinary care to keep and maintain the premises in a reasonably safe condition and must warn of dangers known or discoverable by the performance of a reasonably careful inspection"].)
"„[E]ach person has a duty to use ordinary care and "is liable for injuries caused by his failure to exercise reasonable care in the circumstances. . . .""' (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) A visual inspection is not always tantamount to the exercise of reasonable care. (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 469 (Becker) [reasonable inspection at a minimum included visual inspection]; Garner, supra, 202 Cal.App.2d at p. 729 ["inspection . . . not as a matter of law satisfied by a mere visual inspection"].) Generally, whether an inspection was reasonable is a question of fact. (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1368; Zancaner v. Louisville and Nashville Railroad Co. (1963) 220 Cal.App.2d 836, 840.) Here, Burns's declaration was sufficient to raise a triable issue of material fact as to whether a reasonable inspection required pulling on the rope tied to the archway. Stated otherwise, respondents have not shown as a matter a law, a reasonable inspection required only a visual inspection.
Becker has been overruled on another point in Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1188-1189.
--------
Respondents argue that Reinhard, supra, 41 Cal.App.2d 741 compels a different result. In that case, the plaintiff was injured while working on a skylight. (Id. at p. 743.) The plaintiff alleged that the cross bars of the skylight were not anchored or did not extend into the walls of the building. (Id. at pp. 743-744.) It was impossible to determine if these deficiencies existed without removing the beams and sheet metal. (Id. at p. 748.) Because the only way to determine the defect was to tear apart the structure, the court found as a matter of law "no reasonable or ordinary inspection would have enabled the tenant to discover the defective condition." (Id. at p. 749.)
Respondents argue that this case is analogous to Reinhard because "the only way anyone would have known of the defect in the brick archway would have been through use of X-rays or by tearing down, or disassembling the brick archway." The problem with respondents' argument is that appellant presented evidence that the defect could have been discovered by pulling on the rope attached to the archway and used to hang the pinata. Thus, there is a dispute of fact regarding whether the only way to reveal the defect in the archway was by disassembling it.
Respondents' argument that whether pulling on the rope 20 times would have revealed the defect is mere speculation also lacks merit in the context of this summary judgment. Respondents' summary judgment motion was not based on a claim that pulling the rope would not have revealed the defect in the archway, but instead was based on the claim that only a visual inspection was required. No statement in respondents' undisputed facts supports the argument that pulling on the rope would not have exposed the defect in the archway that caused appellant's (assumed) injury. Therefore, the argument is insufficient to show judgment is appropriate as a matter of law. (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 929.)
Finally, the remaining question is whether there was foundation for Burns's opinion that pulling on the rope would have revealed a defect in the archway. At the hearing on respondents' motion for summary judgment, the court stated that Burns's opinion that pulling on the rope 20 times would have revealed the defect lacked foundation absent a recreation of the archway, and respondents argue that Burns's opinion lacked foundation.
"An expert's opinion cannot be based on facts which find no support in the evidence or upon irrelevant and speculative matters." (Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1262-1263.) Burns's opinion that pulling on the rope 20 times would have revealed the defect in the archway was based on his experience as an engineer. He not only had a degree in engineering but also was employed as an engineer and had qualified as an expert in other cases. Although a jury may ultimately disagree with Burns's opinion, it was supported by sufficient foundation and was not speculative. (See id. at p. 1263 [testimony in line with witness's expertise is not speculative].) In short, appellant raised a triable issue of material fact whether a reasonable inspection would have revealed a defect in the brick archway.
DISPOSITION
The judgment is reversed. Appellant shall have her costs on appeal.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.