Filed 4/3/15 Solorio v. Bisi CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



BETTY SOLORIO et al.,                                               D065470

         Plaintiffs and Appellants,

         v.                                                         (Super. Ct. No. ECU07514)

ROBERT BISI et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B.

Jones, Judge. Reversed.

         Estey & Bomberger, Stephen J. Estey, R. Michael Bomberger; Arnold Law Firm,

Robert Bruce Arnold, David Diaz; Kostic Law Firm and Ljubisa Kostic for Plaintiffs and

Appellants.

         Manning & Kass, Ellrod, Ramirez, Trester and Darin L. Wessel for Defendants

and Respondents.

         Plaintiffs Betty Solorio and Julio Jiminez (Plaintiffs) appeal a judgment after the

trial court granted defendants Robert and Catalina Bisi's (Defendants) motion for
summary judgment in Plaintiffs' personal injury action against them. On appeal,

Plaintiffs contend the trial court erred by granting Defendants' motion for summary

judgment because: (1) Defendants did not carry their initial burden of production to show

Plaintiffs do not have, and cannot reasonably obtain, needed evidence to prove

Defendants caused their injuries, and Defendants breached their duty of care; and (2) the

trial court erred by shifting the burden of production to Plaintiffs, sustaining Defendants'

objections to the declaration of Plaintiffs' expert, and concluding Plaintiffs did not meet

their burden of production to make a prima facie case showing there is a triable issue of

material fact precluding summary judgment for Defendants.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Since 2000, Defendants have owned a single level four-unit apartment building

located at 407 Maple Avenue in Holtville. The building is shaped like an "H," oriented in

a north-south direction. There are two carports located to its west. The southern carport

is constructed of stucco and wood, and the northern carport is constructed of metal. To

the west of Defendants' apartment complex is a dirt driveway and a similar apartment

complex with an "H" shape, not owned by Defendants.

       In March 2011, Plaintiffs and their family were residing in the northeast apartment

of Defendants' building. That apartment apparently has a patio on its west side. At about

3:30 p.m. on March 7, Solorio was doing laundry on the patio when she was struck in the

head by a sheet of plywood. The plywood had red paint on one side, measured about 48

and 1/2 inches wide by 77 and 1/2 inches long, and weighed about 32.5 pounds.

Photographs of the carports' roofs show wood that had also been painted red. However,

                                              2
neither of Plaintiffs recalled ever seeing the plywood board in question on the roofs of, or

elsewhere on, Defendants' property.

        Data from the weather station in Imperial, California, shows the wind on March 7,

2011, averaged 21 miles per hour from a west by southwest direction, with a maximum

wind speed of 40 miles per hour and a maximum gust speed of 51 miles per hour.

Between 2:53 p.m. and 3:53 p.m. on that day, the wind had the same direction with wind

speeds of about 33.4 miles per hour and gust speeds of about 48.3 and 42.6 miles per

hour.

        Plaintiffs filed a complaint against Defendants alleging causes of action for

negligence and premises liability.1 The complaint alleged the unsecured or inadequately

secured plywood board on the rooftop of Defendants' property constituted a dangerous

condition in its high wind location and Defendants breached their duty of care to maintain

their property in a reasonably safe condition.

        Defendants filed a motion for summary judgment. Noting that neither of Plaintiffs

remembered seeing the plywood board prior to the incident, Defendants asserted

Plaintiffs intended to rely on the opinion of an expert, Voyko Banjac, a chemical analysis

of paint samples by Vincent Snodgrass, and photographs of the property to show the

board likely came from one of the roofs of Defendants' property. Defendants asserted

that Plaintiffs' demonstrative exhibits "indicate that they will attempt to show there are

other pieces of wood at the 407 Maple Avenue property with red paint, that satellite


1       Jiminez also alleged a cause of action for loss of consortium.

                                              3
photographs suggest the potential existence of a second plywood board on top of the

[northernmost] metal carport roof, and a contention that the west by [southwest] winds

blew the plywood board up over the roof of the apartment building across the neighbor's

patio and into . . . Solorio's patio." Defendants argued Plaintiffs did not have any

admissible evidence to show the plywood board came from their property. In so arguing,

they asserted Banjac's anticipated opinions lacked foundation, were improper expert

opinion, and were speculative, and therefore Plaintiffs had no admissible evidence to

show the board originated on their property—on which the elements of breach of duty

and causation were based. Defendants also argued "[t]he existence of similar paint color

and formulation cannot support a finding that the plywood came from [Defendants']

property especially in light of the similarly built apartment building to the west also had

red plywood siding." Defendants also argued that, assuming Plaintiffs had evidence

showing the board originated on one of the roofs of their property, Plaintiffs nevertheless

had no evidence to show Defendants breached their duty of care regarding that board.

       In support of their motion for summary judgment, Defendants submitted a separate

statement of undisputed material facts and various exhibits, including photographs,

Banjac's preliminary assessment report, and Snodgrass's analytical testing report.

Banjac's preliminary assessment report stated he has a Ph.D. in engineering and

professional expertise in the areas of engineering, physics, mechanics, and safety

assessment. His report described the layout of Defendants' property, including Plaintiffs'

patio, and the heavy winds reported on March 7, 2011, and their direction from the west-

southwest. Banjac had reviewed photographs and data regarding the property and had

                                             4
personally inspected the property and the plywood panel. Banjac stated his preliminary

assessment regarding the likely immediate origin of the plywood panel as follows:

          "Based on available information, our analysis, and application of
          scientific principles, I believe that the most likely origin of the panel
          was the roof surface of the premises in question (namely, the 4-plex
          roof, the larger carport roof, or the smaller carport roof). This
          opinion is based on two factors: (1) the likely motion and trajectory
          of the panel on the day of the incident, and (2) confirmation of the
          panel's origin within the premises in question as a result of forensic
          chemical analysis."

Banjac explained his reasoning for that opinion, stating in part:

          "On the day of the incident, [the plywood panel] was subject to
          sustained wind speeds of 20-51 mph. Given the shape of the panel,
          those speeds are sufficient to enable an upward-oriented gust to
          dislodge the panel and set it in motion. Once in motion, the panel
          would be subjected to a combination of lift, tumbling, and rotation in
          the general direction of the wind flow.

          "Working backwards from the point of impact, the origin of the
          panel can thus only be an elevated surface (i.e., roof) in the
          immediate vicinity of the point of impact (i.e., patio). Furthermore,
          the choice of elevated surfaces is limited to those roughly in the path
          of a WSW wind flow, as all other elevated surfaces would either be
          downwind or perpendicular, eliminating the possibility of the panel
          originating there.

          "Analyzing what elevated surfaces are available in the path of a
          WSW wind flow, we find three likely candidates: the 4-plex roof,
          the larger carport roof, and the smaller carport roof. The 4-plex roof
          is immediately adjacent to the patio opening, and as such represents
          a first-order most likely origin of the panel, i.e., the panel placed on
          the roof of the 4-plex would be in the path of the wind and could be
          dislodged from its resting position, blown along the roof, and then
          deposited into the patio. The larger carport roof is another likely
          candidate, as it is approx. 1 ft higher than the 4-plex roof and only
          approx. 9 ft away. A panel placed on that roof would be in the path
          of the wind and could be dislodged from its resting position, blown
          across the gap and along the 4-plex roof, and then deposited into the
          patio. The third candidate is the smaller carport roof, which is

                                              5
          approx. 1 ft lower than the 4-plex roof and only approx. 9 ft away.
          A panel placed on that roof would also be in the path of the wind and
          could be dislodged from its resting position, blown across the gap
          and along the 4-plex roof, and then deposited into the patio.

          "Any location other than the above-mentioned three roofs is not a
          credible source of the panel, because none fits the combined criteria
          of elevated surface, WSW direction, and immediate vicinity to the
          patio."

Banjac also cited the forensic chemical analysis of paint samples that indicated the same

paint was most likely used on the plywood panel and the roof eave of the apartment

building, confirming his opinion that the panel originated on Defendants' property.

Snodgrass's analytical testing report stated that he had "approximately 95% confidence

that the two paints are actually the same formulation."

       Plaintiffs opposed Defendants' motion for summary judgment, arguing

Defendants' citation of Banjac's report and argument that the report was inadmissible

evidence was insufficient to carry their burden to show Plaintiffs cannot reasonably

obtain evidence to prove the origin of the plywood was Defendant's property and thus

their causes of action. Plaintiffs further argued that, even if Defendants carried their

initial burden on production, there existed a triable issue of material fact whether the

plywood board originated on Defendants' property and they breached their duty of care.

In support of their opposition, Plaintiffs submitted a separate statement of undisputed

material facts and Banjac's declaration in which he, in effect, restated his opinion and

reasoning set forth in his preliminary assessment report and expanded on his background

(e.g., stating his experience in analyzing the dynamics and trajectories of projectiles and

other atmospheric vehicles). In reply, Defendants objected to portions of Banjac's

                                              6
declaration, including those setting forth his opinion and reasoning and the results of

Snodgrass's paint sample chemical analysis.

       The trial court issued an order granting Defendants' motion for summary

judgment. The court first sustained Defendants' objections to the substantive portions of

Banjac's declaration. The court then explained its reasoning for granting the motion,

stating:

           "A. The court finds that [D]efendants met their burden in moving
           for summary judgment by adequately showing [P]laintiffs lacked
           admissible evidence to establish the elements of breach of duty and
           causation on their causes of action for negligence, premises liability
           and loss of consortium. [Citation.] Contrary to [P]laintiffs'
           assertions, the [D]efendants did more than simply rely on
           [P]laintiffs' deposition testimony indicating a lack of knowledge of
           where the plywood that hit Solorio was located prior to the accident.
           [Citations.] The moving papers also proffered Solorio's preliminary
           expert reports and diagrams outlining [P]laintiffs' proffered theory as
           to where the board may have come from and addressed why the
           anticipated opinions and conclusions were inadmissible. [Citation.]
           The moving papers also showed evidence of the various obstacles
           between [Solorio's] patio and the theorized locations of the plywood,
           over which the plywood needed to clear to reach [Solorio's] patio.
           [Citation.] The moving papers further showed the existence of other
           potential sources for the plywood, over which the Bisis would have
           no custody or control. [Citation.]

           B. The court finds that the burden therefore shifted to [Plaintiffs] to
           establish triable issues of material fact through admissible evidence
           and that [P]laintiffs failed to meet their burden. (Code Civ. Proc.,
           § 437c, subds. (c), (d) and (p)(2).) . . . ."

The trial court entered judgment for Defendants. Plaintiffs timely filed a notice of

appeal.




                                              7
                                       DISCUSSION

                                               I

                          Summary Judgment Standard of Review

       A defendant moving for summary judgment "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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850

(Aguilar).) To meet that burden, a defendant must show that one or more elements of the

cause of action cannot be established, or that there is a complete defense to that cause of

action. (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) To show that the plaintiff cannot

establish at least one element of the cause of action, the defendant must show "the

plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar, at

p. 854, italics added.) Aguilar explained: "The defendant must show that the plaintiff

does not possess needed evidence, because otherwise the plaintiff might be able to

establish the elements of the cause of action; the defendant must also show that the

plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed

a reasonable opportunity to oppose the motion [citation.]" (Ibid., fn. omitted.) A

defendant can meet that burden by relying on the plaintiff's factually inadequate

discovery responses if those responses show the plaintiff "will be unable to prove its case

by any means." (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.)

Argument alone is insufficient. (Aguilar, at p. 855.) If the defendant does not present

sufficient evidence to meet its initial burden, the trial court must deny the summary

judgment motion. (Id. at p. 850.)

                                              8
       If the defendant meets its initial burden of production, the burden shifts to the

plaintiff to set forth specific facts showing that a triable issue of material fact exists as to

the cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at p. 849.) If the

plaintiff meets that burden, summary judgment should be denied. (Gaggero v. Yura

(2003) 108 Cal.App.4th 884, 889.) If not, summary judgment for the defendant is

appropriate. (Ibid.)

       On appeal, we review the trial court's ruling on a motion for summary judgment de

novo, liberally construe the evidence in favor of the party opposing the motion, and

resolve all doubts concerning the evidence in favor of the opposing party. (Miller v.

Department of Corrections (2005) 36 Cal.4th 446, 460.) In so doing, we resolve all

doubts regarding whether any triable issue of material fact exists in favor of the party

opposing the motion for summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36

Cal.App.4th 558, 562.) In reviewing the trial court's evidentiary rulings, however, we

apply the abuse of discretion standard of review. (Miranda v. Bomel Construction Co.,

Inc. (2010) 187 Cal.App.4th 1326, 1335.)

                                               II

               Defendants Did Not Meet Their Initial Burden of Production

       Plaintiffs contend the trial court erred by granting Defendants' motion for

summary judgment because they did not carry their initial burden of production to show

Plaintiffs do not have, and cannot reasonably obtain, evidence to prove that Defendants

caused their injuries and breached their duty of care.



                                                9
                                              A

       Plaintiffs' causes of action for negligence and premises liability require proof that

Defendants owed Plaintiffs a duty of care and breached that duty, and the breach was a

proximate or legal cause of injuries suffered by Plaintiffs. (Ann M. v. Pacific Plaza

Shopping Center (1993) 6 Cal.4th 666, 673; Leslie G. v. Perry & Associates (1996) 43

Cal.App.4th 472, 480.) To prove causation, Plaintiffs must show it is more likely than

not their injuries were the result of Defendants' breach of duty of care (e.g., the board that

struck Solorio originated from Defendants' property). (Leslie G., at p. 487.)

                                              B

       Based on our review of the evidence Defendants submitted in support of their

motion for summary judgment, we conclude they did not meet their initial burden to

show Plaintiffs do not have, and could not reasonably obtain, needed evidence to prove

Defendants caused their injuries and breached their duty of care. (Aguilar, supra, 25

Cal.4th at p. 854.) To the extent Defendants argue Plaintiffs do not have any admissible

evidence showing the plywood board originated from Defendants' property, they

misconstrue and/or misapply their initial burden of production in moving for summary

judgment. Contrary to Defendants' apparent belief, their burden is not to show Plaintiffs

do not currently possess admissible evidence to show the board originated from

Defendants' property, but rather to show Plaintiffs do not possess, and cannot reasonably

obtain, such evidence. (Ibid.) Although Defendants presented evidence showing neither

of Plaintiffs had seen the plywood board before the incident and did not know where it

came from, Defendants did not present any evidence showing Plaintiffs could not

                                             10
reasonably obtain evidence showing the board's origin. Defendants did not show

Plaintiffs could not reasonably obtain either percipient testimony or expert testimony that

would support a finding the board originated from Defendants' property. Although

neither Solorio nor Jiminez knew the board's origin, Defendants did not show Plaintiffs

would be unable, with further investigation and/or discovery, locate a percipient witness

who could testify that he or she saw the board on Defendants' property before the

incident.

       More importantly, even if Plaintiffs could not locate such a percipient witness,

Defendants did not show Plaintiffs could not reasonably obtain expert testimony that

would support a finding the board originated from Defendants' property. In support of

their motion for summary judgment, Defendants submitted evidence, including a copy of

Banjac's preliminary assessment report, that purportedly showed Plaintiffs did not have

admissible evidence to show the board originated from Defendants' property. However,

assuming arguendo that report could not be properly admitted at trial, the report indicated

Banjac was an expert in engineering, physics, mechanics, and safety and held the opinion

(based on available information, his analysis, and the application of scientific principles)

that the most likely origin of the panel was a roof surface of Defendants' premises (i.e.,

the apartment building's roof, the larger carport roof, or the smaller carport roof). Rather

than showing Plaintiffs could not reasonably obtain evidence to show the board

originated from Defendants' property, that report showed, instead, that Plaintiffs likely

would be able to obtain that evidence. Although the report itself may not have been

admissible at trial, Banjac's report, submitted by Defendants in support of their summary

                                             11
judgment motion, showed Plaintiffs had retained an expert witness (i.e., Banjac) who,

after an initial assessment, had formed the opinion that the most likely origin of the board

was Defendants' property. To the extent Defendants argue the report does not necessarily

show Banjac is an expert qualified to opine on questions of plywood board flight, we

conclude Defendants have not shown Plaintiffs will be unable to show Banjac is so

qualified at the time of trial. There is nothing in the record to indicate Banjac would not

be able to testify at trial that he has expert knowledge regarding and/or experience with

the flight of boards or similar objects through air based on wind direction, speed and

other conditions. We cannot conclude Plaintiffs will be unable to establish an adequate

foundation for Banjac to testify as an expert at trial.

       Furthermore, although Defendants argue Banjac's opinion is speculative and/or

conclusory because the report does not show he conducted any experiments regarding the

flight of boards through air and did not sufficiently describe the reasoning for his opinion,

that argument does not show Plaintiffs could not reasonably obtain and present that

testimony at trial. Even if Banjac had not conducted any board flight experiments in the

past, he may very well have the opportunity to do so prior to trial and thereby provide

additional support for his opinion were he to testify at trial. Furthermore, to the extent

Defendants (and the trial court) noted Banjac's report was deficient by inadequately

describing his methodology and the facts underlying his opinion and did not describe

how the board could have cleared the various obstructions between Defendants' roofs and

Solorio's patio, we must liberally construe the evidence in favor of Plaintiffs (Miller v.

Department of Corrections, supra, 36 Cal.4th at p. 460) and therefore infer any such

                                              12
deficiency could be remedied when Banjac testifies at trial. Defendants' moving papers

do not show Plaintiffs could not reasonably obtain such testimony from Banjac or another

expert.

          Finally, to the extent Defendants argue Banjac's opinion is speculative and/or

otherwise inadmissible because it does not preclude the possibility that the board could

have originated from the property to the west, we disagree. Banjac's report stated other

locations would not be "a credible source of the panel" because they do not fit the

required criteria. Assuming arguendo there is evidence showing the board may have

originated from that neighboring property, that evidence does not necessarily refute

Banjac's opinion as a matter of law. Rather, that evidence would be considered by the

jury in deciding the factual question of the board's origin. At trial, Plaintiffs will not be

required to disprove all other possible origins for the board, but rather to prove the most

likely origin was Defendants' property.

          Furthermore, in moving for summary judgment, Defendants submitted the

analytical testing report of Snodgrass, whose company was retained by Plaintiffs, in

which he stated he had "approximately 95% confidence that the two paints are actually

the same formulation." Although Defendants argue that report is inadmissible and/or that

Banjac could not refer to or rely on that report in forming his opinion, Defendants have

not shown Plaintiffs could not reasonably obtain the testimony at trial of Snodgrass or

another expert who has tested the board's red paint and red paint from Defendants'




                                               13
apartment building and concluded the two paint samples had the same formulation.2

Were Plaintiffs to present such testimony at trial, it presumably would support their

theory that the board originated from Defendants' property and provide additional support

for Banjac's opinion. To the extent Defendants argue such testing would not necessarily

preclude the board from originating somewhere else (e.g., the property to the west), that

would merely raise a triable issue of material fact for the jury to decide. If Defendants'

theory at trial is that the board originated somewhere else, they presumably could present

evidence supporting that theory (e.g., Defendants' own expert regarding flight

characteristics of plywood boards and likely origin of the board and their own expert

regarding the chemical composition of a neighbor's paint and match to that found on the

board that struck Solorio).

       Based on the above reasoning, we conclude Defendants did not carry their initial

burden to produce evidence showing Plaintiffs do not have, and could not reasonably

obtain, needed evidence to show the board that struck Solorio originated from

Defendants' property. (Cf. Cassady v. Morgan, Lewis & Bockus LLP (2006) 145

Cal.App.4th 220, 240-244 [because defendant did not meet its burden to show plaintiff

could not reasonably obtain evidence to prove elements of cause of action, summary

judgment should not have been granted]; Weber v. John Crane, Inc., supra, 143


2      Even in the absence of such testing and expert testimony, percipient testimony or
documentary evidence showing that the board was painted red and Defendants' apartment
building is painted red and appears to be similar to the board's red paint may, in itself,
provide additional support for Banjac's opinion and/or a finding by the jury that the
board's origin was Defendants' property.

                                             14
Cal.App.4th at pp. 1439-1442 [burden did not shift to plaintiff because defendant did not

show plaintiff could not reasonably obtain evidence of causation]; Gaggero v. Yura,

supra, 108 Cal.App.4th at pp. 890-893 [burden did not shift to plaintiff because

defendant did not show plaintiff could not reasonably obtain evidence to prove element

of cause of action].) Therefore, Defendants did not carry their burden to show Plaintiffs

cannot establish the element of causation. (Code Civ. Proc., § 437c, subd. (p)(2);

Aguilar, supra, 25 Cal.4th at pp. 850, 854.) None of the cases cited by Defendants are

apposite or persuade us to conclude otherwise.

       We likewise conclude Defendants did not carry their initial burden to produce

evidence showing Plaintiffs do not have, and could not reasonably obtain, needed

evidence to show Defendants breached their legal duty of care. In moving for summary

judgment, Defendants argued Plaintiffs do not have any evidence showing there was a

breach of a duty of care regarding securing the plywood board to the roof, citing evidence

showing another board on the roof of Defendants' northern metal carport was secured

with nails, wire and/or bolts and screws. However, the fact that there may be evidence

showing another board on the metal carport's roof was adequately secured does not

necessarily show the board that struck Solorio was similarly adequately secured.

Furthermore, Defendants did not present any evidence showing Plaintiffs could not

reasonably obtain evidence showing Defendants breached their duty of care by

inadequately securing the board to the roof of their property. Therefore, Defendants did

not carry their burden to show Plaintiffs cannot establish the elements of breach of duty.

(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850, 854.)

                                            15
Because Defendants did not present sufficient evidence to meet their initial burden, the

trial court erred by granting their motion for summary judgment and should, instead, have

denied that motion.3 (Aguilar, supra, 25 Cal.4th at p. 850.)

                                      DISPOSITION

       The judgment is reversed. Plaintiffs are entitled to costs on appeal.




                                                                           McDONALD, J.
WE CONCUR:


BENKE, Acting P. J.


O'ROURKE, J.




3      Because we resolve this appeal based on Defendants' failure to meet their initial
burden of production, the burden of production never shifted to Plaintiffs and therefore
we need not, and do not, address whether Plaintiffs presented any evidence showing the
existence of a triable issue of material fact regarding the elements of causation and breach
of duty. (Aguilar, supra, 25 Cal.4th at pp. 849-850.)

                                            16
