Filed 4/21/16 Lightbourn v. Casa Del Mar CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR



                                                                     B263926
WENDY LIGHTBOURN,                                                    (Los Angeles County
                                                                     Super. Ct. No. BC511081)
                Plaintiff and Appellant,

v.

CASA DEL MAR et al.,

              Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael J. Raphael, Judge. Affirmed.
         DeWitt Algorri & Algorri, William N. McMillan, Carolyn L. Tan and Ernest
P. Algorri for Plaintiff and Appellant.
         Pollard Mavredakis Cranert Crawford and Paul C. Kwong for Defendants
and Respondents.
          Appellant Wendy Lightbourn brought suit against respondents Neptune’s
Walk LLC, doing business as Casa Del Mar, and the Edward Thomas Hospitality
Corporation, owners of the Casa Del Mar Hotel in Santa Monica, for injuries that
occurred on the premises of the hotel. The trial court granted respondent’s motion
for summary judgment, finding no causation. Appellant contends the trial court
erred in finding that respondents negated that element of her claim, and that it
abused its discretion in accepting the opinion of respondent’s expert on the subject,
while giving no credence to that of appellant’s expert. Finding no legal error or
abuse of discretion, we affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND
          A. Appellant’s Complaint and Deposition
          Appellant allegedly sustained personal injuries after slipping and falling on a
seven-step marble staircase at the Casa Del Mar Hotel in December 2012.1
Appellant contended respondents “negligently owned, maintained, cleaned,
controlled, possessed, managed, designed, constructed, supervised, and operated”
the Hotel and its fixtures, such that they were “in a defective and dangerous
condition, with no warning given . . . .”
          At her deposition, appellant testified that she was descending the staircase, at
the time of the incident. She was wearing pumps she described as having three-
inch heels, excluding the platform portion of the shoe. She stated that immediately
before she slipped, she noticed a passing family and commented about them to her
husband, who was walking behind her. Asked where she was looking at the time
of the fall, appellant answered she did not know, that she “may have” turned to

1
          Appellant later stated that she suffered a fractured ankle, which required surgery to
repair.

                                                2
look at her husband, but that turning to look behind her was not something she
would normally do while walking down stairs. Appellant testified that her foot
“slid[] on the stair[s],” moving “to the side,” away from the banister, which was on
her right. She said her foot did not go forward.


       B. Respondents’ Motion for Summary Judgment
       Respondents moved for summary judgment. Although the complaint was
not specific about the nature of the alleged defect in the subject staircase,
respondents’ counsel asserted that he had been informed by appellant’s counsel
that the claim was based on the failure of the staircase to conform to the applicable
building code regarding variations in the tread depth of the individual steps.2
       In support of their motion, respondents presented the declaration of safety
engineer Taryn Johnson. Johnson’s curriculum vitae included her 1981 bachelor
of science degree in industrial engineering/management and masters of science
degree in safety engineering. Her professional background included “slip/trip and
fall analysis” and “human factors analysis,” as well as construction safety and
building code compliance. Johnson stated she had “inspected and evaluated
thousands of stairways and the applicable building codes,” and had “evaluated the
mechanics of human gait while ascending and descending stairways.” Johnson
expressed the opinion that “[l]oss of balance due to the tread depth of steps does
not cause the foot to slide to the left or to the right. [¶] . . . If [appellant] had lost
her balance due to the tread depth, her foot would have rolled over the tread
nosing, giving her the sensation that her foot slipped in a forward direction.” She
further opined: “The slide to the left indicates an offloading of body weight or the

2
      Appellant did not dispute that description of her claim in her opposition papers,
and does not contest it on appeal.

                                             3
improper placement of the foot on the tread surface. This was likely caused by
instability of the estimated 4-inch high heel and turning to speak to her husband.”
Johnson explained that her opinion about the cause of appellant’s slip and ensuing
injury was based on the following factual assumptions, formed from reading
appellant’s deposition: (1) appellant was wearing pump style shoes, with a four
inch heel “when adding the platform height”; (2) immediately before she slipped,
appellant was looking at a passing family and commenting about them to her
husband; and (3) appellant’s left foot slipped away from the banister, to the left.


        C. Appellant’s Opposition
        In her opposition, appellant did not dispute that her claims were based on the
contention that the tread depth of the steps of the staircase failed to conform to the
applicable building code. She did not controvert her deposition testimony that her
left foot “didn’t go forward. It [slid] to the side[,] [¶] . . . away from the banister.”
Nor did she add any further information about her fall. She disputed that the
height of the heels she was wearing was four inches when added to the shoe’s
platform, stating that although she had testified her heels were three inches, there
was no evidence in the record about the height of the platform. She also disputed
that there was any evidence establishing she was looking at her husband when she
fell.
        Appellant objected to the opinions expressed by respondents’ expert
concerning the type of fall expected from a variance in tread depth, and the likely
cause of her foot sliding to the left. She contended Johnson expressed improper
opinions, and that her opinions lacked foundation and were the result of
speculation. She further contended respondents’ expert was unqualified to render




                                            4
an opinion concerning the conclusions to be drawn from appellant’s foot sliding to
the left as she was not an expert in biomechanics.3
       In her opposition, appellant presented evidence that the staircase at issue had
seven steps. The tread depth on the fourth step was 11-1/4 inches, one inch deeper
than the two steps above it and the one below it, and 1-1/4 inch deeper than the
first step’s tread. The bottom stair was also 11-1/4 inches.4 Appellant also
presented the declaration of Ivan Insua, a licensed general contractor and architect,
knowledgeable about the Uniform Building Code (UBC). According to Insua, the
UBC provides that “[t]he greatest tread depth within any flight of stairs shall not
exceed the smallest by more than 3/8 inch” when “measured horizontally between
the vertical planes of the foremost projection of adjacent treads and at a right angle
to the tread’s leading edge,” and that good design principles required that the
design of facilities used by the public “be simple and intuitive,” and that their use
be “easy to understand” and “consistent with user expectations and intuition.” As
there was a 1-1/4 inch difference between the top step’s tread and the tread of the
fourth and bottom steps, the staircase at issue “exceed[ed] the allowable variation
between the smallest and longest by 3[-]1/3 times.” According to Insua, the
staircase “represent[ed] a violation of applicable building code(s) and [was] unsafe
for the use, safety and welfare of the general public.” Insua’s declaration
concluded: “In my professional opinion as an architect and general contractor
licensed in the State of California, the cause of the injury was directly a result of

3
      “Biomechanics” has been described as the application of engineering principles to
the human body (People v. Duenas (2012) 55 Cal.4th 1, 18; People v. Roehler (1985) 167
Cal.App.3d 353, 369) or the study of the effect of forces on organic bodies (Romine v.
Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 998).
4
       Overall, there was a 1-1/4 inch difference between the top stair (10 inch tread
depth) and the fourth and bottom stairs (11-1/4 inch tread depth). The risers -- the
vertical piece that joins the stairs -- were all 5-1/2 inches.

                                             5
the unsafe condition [of the staircase]. [Appellant] lost her balance due to the
extreme variance in the tread depth.”


       D. Reply
       In their reply, respondents objected to Insua’s declaration, contending he
“offers no theories or facts to support his contention that the alleged code
violations caused or contributed to the subject accident. He merely alleges
violations and then states that the violations caused the subject accident without
providing a basis for such a conclusion.”


       E. Trial Court’s Rulings
       The trial court sustained respondents’ objection to Insua’s declaration,
explaining that his opinion was “not supported by reasoned explanation.”
Specifically, “Mr. Insua does not explain the relationship between the tread depth
variation and why or how [appellant] would lose her balance as a result. . . . He
does not opine as to why tread depth variation requires a minimum variation from
a safety standpoint.” Moreover, the court stated it was disinclined to credit Insua’s
opinion because he was “an architect only[,] . . . not a safety engineer.”
       The court overruled some of appellant’s objections to Johnson’s declaration,
sustaining others. In particular, it overruled her objections to Johnson’s opinion
that “[l]oss of balance due to the tread depth of a step does not cause the foot to
slide to the left or to the right”; “[t]he slide to the left indicates an offloading of
body weight or the improper placement of the foot on the tread surface”; and “[i]f
[appellant] had lost her balance due to the tread depth, her foot would have rolled
over the tread nosing, giving her the sensation that her foot slipped in a forward
direction.” The court sustained appellant’s objections to Johnson’s opinion that
“[appellant] likely turned toward [her husband] when she spoke to him just before
                                             6
she slipped” and “[t]his [appellant’s slip] was likely caused by instability of the
estimated 4-inch high heel and turning to speak to her husband.” With respect to
the objection that Johnson lacked the necessary qualifications, the court noted that
appellant’s own proffered expert had no expertise in biomechanics, and, unlike
respondents’ expert, had provided no reasoning to support his opinion that the
design of the steps contributed to the fall. In the court’s view, Johnson’s opinion
made “complete . . . sense”: “[If] the stair is a little longer than you think it is or a
little shorter tha[n] you think it is[,] [y]ou’re going to fall forward . . . .”
       On the merits, the trial court held that the fact the staircase was not code
compliant did not establish negligence per se, in the absence of evidence
establishing that the noncompliance was the proximate cause of appellant’s injury.
The court pointed out that appellant was descending at the time, did not know
which step she was on when she slipped, and that the first three steps were all built
to code. The court concluded that respondents had “negate[d] causation,” that
appellant had put forward no evidence to refute respondents’ showing, and that it
appeared from the record that “even giving all the inferences possible to
[appellant,] that there’s no way that [she] can show . . . causation.”
       The court granted respondents’ motion for summary judgment. Its order
stated: “[Respondents’] evidence is sufficient to shift the burden of proof to
[appellant] to create a triable issue of fact. [Citation.] [Appellant] has not
proffered competent, admissible evidence sufficient to controvert the issue of
causation. [Appellant’s] expert’s declaration on that issue is objectionable as it
lacks foundation. [Citation.] [¶] [Appellant’s facts supportive of causation] are not
proved as these facts rely on the inadmissible opinion of [appellant’s] expert.”
Judgment was entered in favor of respondents. This appeal followed.




                                             7
                                    DISCUSSION
      A. Standard of Review
      “Summary judgment is granted when a moving party establishes the right to
the entry of judgment as a matter of law. [Citations.] ‘“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.”’ [Citations.]” (DuBeck v. California
Physicians’ Service (2015) 234 Cal.App.4th 1254, 1263-1264, quoting Mitchell v.
United National Ins. Co. (2005) 127 Cal.App.4th 457, 467.) When a defendant
moves for summary judgment, “‘its declarations and evidence must either establish
a complete defense to plaintiff’s action or demonstrate the absence of an essential
element of plaintiff’s case. If plaintiff does not counter with opposing declarations
showing there are triable issues of fact with respect to that defense or an essential
element of its case, the summary judgment must be granted.’” (Saldana v. Globe-
Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1510-1511, quoting Gray v.
America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.) “‘On appeal from a
summary judgment, an appellate court makes “an independent assessment of the
correctness of the trial court’s ruling, applying the same legal standard as the trial
court in determining whether there are any genuine issues of material fact or
whether the moving party is entitled to judgment as a matter of law.”’” (DuBeck v.
California Physicians’ Service, supra, 234 Cal.App.4th at p. 1264.)
      In our review, we consider “all of the evidence the parties offered in
connection with the motion (except that which the court properly excluded) . . . .”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The evidence presented by
the party opposing summary judgment and the reasonable inferences therefrom are
accepted as true. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562,
575.) But it is “not enough [for the opposing party] to produce just some
                                           8
evidence”; the evidence must be “of sufficient quality to allow [a] trier of fact to
find the underlying fact in favor of the party opposing the motion for summary
judgment.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105;
accord, Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1239; Whitmire v.
Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1093.) “When the moving party
produces a competent expert declaration showing there is no triable issue of fact on
an essential element of the opposing party’s claims, the opposing party’s burden is
to produce a competent expert declaration to the contrary.” (Bozzi v. Nordstrom,
Inc. (2010) 186 Cal.App.4th 755, 761-762.)


      B. Analysis
      The owner of a commercial establishment, while not the insurer of the safety
of its patrons, “does owe them a duty to exercise reasonable care in keeping the
premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)
Failure to exercise due care may lead to liability in negligence, which requires
proof of duty, breach, causation and damages. (Ibid.)
      No inference of negligence can arise from the mere fact that a plaintiff
slipped and fell on a staircase located on a defendant’s premises. (Darrach v.
Trustees of S. F. County Medical Assn. (1953) 121 Cal.App.2d 362, 366; Harpke v.
Lankershim Estates (1951) 103 Cal.App.2d 143, 145; see Brown v. Poway Unified
School Dist. (1993) 4 Cal.4th 820, 826 [“Experience teaches that slips and falls are
not so likely to be the result of negligence as to justify a presumption to that
effect.”].) However, proof that a property owner violated a statute or regulation
may give rise to a presumption of negligence in specified circumstances under the
doctrine of negligence per se. (Evid. Code, § 669; Elsner v. Uveges (2004) 34
Cal.4th 915, 927; Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1218; see
Ritter & Ritter, Inc. Pension & Profit Plan v. Churchill Condominium Assn. (2008)
                                           9
166 Cal.App.4th 103, 119 [presumption of negligence may arise whether law
violated is state statute, safety order, administrative regulation or local building
code provision].)
      Under the doctrine of negligence per se, “‘[n]egligence may be presumed if
(1) the defendant violated a statute [or other provision]; (2) the violation
proximately caused injury to the plaintiff; (3) the injury resulted from an
occurrence which the statute [or other provision] was designed to prevent; and (4)
the plaintiff was one of the class of persons for whose protection the statute [or
other provision] was adopted. [Citations.]’” (Reyes v. Kosha (1998) 65
Cal.App.4th 451, 462-463, quoting Nowlon v. Koram Ins. Center, Inc. (1991) 1
Cal.App.4th 1437, 1441-1442.) In a negligence per se action, it is not enough for
the plaintiff to establish the violation of a building code or other provision; he or
she must also establish “a substantial probability that the plaintiff’s injury was
caused by the violation . . . .” (National Council Against Health Fraud, Inc. v.
King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1347, citing Haft v.
Lone Palm Hotel (1970) 3 Cal.3d 756, 765; see, e.g., Hazelwood v. Gordon (1967)
253 Cal.App.2d 179, 180-181 [no liability for steepness of staircase, variations
between steps, or lack of code compliance where evidence established plaintiff’s
foot slipped immediately as it touched the first step]; Blodgett v. B.H. Dyas Co.
(1935) 4 Cal.2d 511, 513 [no liability for absence of handrail required by
ordinance where its absence did not cause plaintiff’s fall or ensuing injuries].)
      Establishing the element of causation requires a showing that the
defendant’s breach was a substantial factor in bringing about the plaintiff’s harm.
(Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205.) The plaintiff “‘need not
prove causation with absolute certainty,’” but must “‘“‘introduce evidence which
affords a reasonable basis for the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of the result.’” [Citations.]’”
                                           10
(Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569, quoting
Viner v. Sweet (2003) 30 Cal.4th 1232, 1243.) “‘A mere possibility of such
causation is not enough; and when the matter remains one of pure speculation or
conjecture, or the probabilities are at best evenly balanced, it becomes the duty of
the court to direct a verdict for the defendant.’” (Ortega v. Kmart Corp., supra, at
pp. 1205-1206, quoting Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269, fns.
omitted.)
      Causation is generally a question of fact for the jury, but in appropriate
circumstances where the facts are undisputed, may be decided as a question of law.
(Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205; Phillips v. TLC Plumbing,
Inc. (2009) 172 Cal.App.4th 1133, 1139.) In moving for summary judgment,
respondents presented the undisputed testimony of appellant that her left foot slid
to the left, away from the banister, when she lost her balance and slipped on the
staircase. She expressly denied that her foot went forward. Respondents also
presented the declaration of an expert who stated that loss of balance on a staircase
due to variance in tread depth would cause the foot to roll over the tread nosing --
to move in a forward direction, not to the side. This was sufficient to negate
causation and shift the burden to appellant to present countervailing evidence.5
      Appellant challenges Johnson’s qualifications to competently reach the
opinions she expressed in her declaration, and contends the opinions were
“speculative and foundationless.” Evidence Code section 720 permits a person to
testify as an expert “if he [or she] has special knowledge, skill, experience,

5
      As the trial court observed, even without regard to the evidence presented by
respondents, appellant was unlikely to be able to establish causation under the
circumstances: she did not know which step she slipped on, and the first three steps were
code compliant. A trier of fact would have been required to rely on speculation to find
that UBC noncompliance caused appellant to slip.

                                           11
training, or education sufficient to qualify him [or her] as an expert on the subject
to which his [or her] testimony relates.” The trial court is the gatekeeper, having
the power to decide whether to exclude or allow expert testimony (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-
772), and “‘is given considerable latitude in determining the [expert’s]
qualifications . . . .’” (People v. Cooper (1991) 53 Cal.3d 771, 813.) An expert
opinion may not be based on speculation; however, appellate courts also give
“‘wide latitude to trial courts in determining whether the matters relied upon by
experts in forming opinions are too speculative.’” (Thai v. Stang (1989) 214
Cal.App.3d 1264, 1276.) The test applied on appeal is whether the trial court
properly exercised its discretion and whether the expert disclosed sufficient
knowledge on the subject to warrant admission of the opinion into evidence.
(Redevelopment Agency v. First Christian Church (1983) 140 Cal.App.3d 690,
703.) This court may find error in the trial court’s admission of expert testimony
“‘only if the witness “‘clearly lacks qualification as an expert.’” [Citation.]’”
(People v. Singleton (2010) 182 Cal.App.4th 1, 21.)
        With respect to her qualifications, Johnson was a safety engineer with over
two decades of experience. She had both undergraduate and graduate degrees in
engineering, including a masters of science degree in safety engineering. Her
professional experience included safety engineering analysis, slip/trip and fall
analysis, human factors analysis, and occupational safety and building code
compliance.6 She stated she had “inspected and evaluated thousands of stairways”


6
       “‘Human factors’” is a field “devoted to optimizing human performance and
reducing human error” by studying “‘interaction and interfacing of . . . man, machine and
media’” (Kelly v. U.S. (9th Cir. 2001) 241 F.3d 755, 758), or “how people see, hear and
perceive things and their reactions thereto . . . .” (Westbrooks v. California (1985) 173
Cal.App.3d 1203, 1209.) “Considering all of the environmental data available to an
(Fn. continued on next page.)

                                           12
and “evaluated the mechanics of human gait while ascending and descending
stairways.” This was sufficient to establish her expertise in the areas of slip and
fall, human gait, and the likely results of unsafe facilities design. The court’s
conclusion that she was qualified to render an opinion on the cause of appellant’s
fall was not an abuse of discretion.
       As to appellant’s contention that Johnson’s opinion was speculative and
lacked “reasoned explanation,” we disagree. Johnson explained that a loss of
balance occasioned by a variation in tread depth would not cause a foot to slide left
or right; rather the foot would roll over the tread nose, creating a sensation of
forward movement. The explanation was clear to the court, which observed that it
made sense that a person descending a staircase anticipating a longer or shorter
tread would fall forward. We find no abuse of discretion in the trial court’s
determination that Johnson’s declaration was sufficiently detailed to be admissible
on the issue of causation.7


individual in a given situation, as well as that individual’s state of mind at the time, a
human factors engineer purports to render an opinion on the individual’s probable
resulting conduct.” (Garwood v. International Paper Co. (5th Cir. 1982) 666 F.2d 217,
222.) Human factors analysis is used to identify and reduce risk created by design.
(Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 761.)
7
        Appellant contends her position is supported by the decision in Wilson v. J.P.
Allen Co. (C.D. Cal. 2014) 57 F.Supp.3d 1249, a case involving injury caused by a slip
and fall from an improperly designed curb. There, plaintiff’s expert testified that the
plaintiff’s deposition testimony describing his body’s movement during his fall was “just
the opposite” of the movement the expert believed the improper design of the curb would
cause. (Id. at p. 1258.) In opposing a defense motion for summary judgment, the
plaintiff submitted a declaration, changing his description of the incident to conform to
the expert’s testimony. (Id. at p. 1259.) In denying the motion for summary judgment,
the court did not, as appellant suggests, decline to credit the expert’s testimony or find it
represented an improper opinion. Rather, the court found that the plaintiff’s declaration
was not a sham and created a triable issue of fact. (Id. at p. 1261.) Unlike the plaintiff in
Wilson, appellant did not seek to modify her deposition testimony.

                                             13
      Appellant suggests the declaration she presented was sufficient to raise a
triable issue of fact. Again, we disagree. As the trial court observed, Insua, an
architect and general contractor, was not a safety engineer. Moreover, “an expert’s
opinion rendered without a reasoned explanation of why the underlying facts lead
to the ultimate conclusion has no evidentiary value because an expert opinion is
worth no more than the reasons and facts on which it is based.” (Bushling v.
Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) Appellant’s expert
merely stated that the variance in tread depth represented a code violation and that
plaintiff “lost her balance due to the extreme variance in the tread depth,” without
providing an explanation of how the tread variation might have caused the slip and
fall appellant described in her deposition. The court’s finding that this opinion had
no evidentiary value and was insufficient to raise an issue of fact on causation was
reasonable. (See id. at p. 502 [plaintiff’s expert did not create issue of material fact
by simply stating it was “more probabl[e] than not” that plaintiff’s injury resulted
from trauma during surgery without providing explanation].)
      Finally, appellant contends Johnson’s opinion was improperly based on facts
not supported by the evidence, specifically, the height of appellant’s shoes and the
direction in which she was looking at the time she slipped. As the record reflects,
the court sustained appellant’s objections and discounted Johnson’s opinion that
the sideways slip was due to the height of the shoes or appellant’s failure to look
ahead during her descent. However, these opinions were separate from the opinion
concerning the direction of the movement when a fall is precipitated by tread
variance. The court could reasonably rely on the admissible portion of the
declaration while discounting the portions it found speculative or unsupported by
the evidence.




                                          14
                               DISPOSITION
     The judgment is affirmed. Respondents are awarded their costs on appeal.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                           MANELLA, J.


We concur:




EPSTEIN, P. J.




COLLINS, J.




                                      15
