Filed 8/22/19; Certified for Publication 9/16/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT

 THERESA A. JONES,
                                                                           F077359
          Plaintiff and Appellant,
                                                                    (Super. Ct. No. CV60288)
                   v.

 CLYDE AWAD et al.,                                                       OPINION
          Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
         Wilcoxen Callaham, William C. Callaham and Christopher G. Romero, for
Plaintiff and Appellant.
         Donahue Davies, James Richard Donahue and Stephen J. Mackey, for Defendants
and Respondents.
                                                     -ooOoo-
       Plaintiff sued defendant homeowners for premises liability after she tripped on a
step in their garage. Defendants moved for summary judgment on the grounds that
plaintiff was unable to establish one or more elements of her “Personal Injury-Premises
Liability” claim. The trial court granted the motion, concluding plaintiff was unable to
prove breach of duty.
       On appeal, plaintiff contends triable issues of material fact exist with respect to
each element of her cause of action. With regard to breach of duty, plaintiff argues 1) the
trial court misapplied the standard for notice of a dangerous condition and 2) the doctrine
of negligence per se should have been applied. We disagree with plaintiff’s contentions.
       We therefore affirm the judgment.
                               STATEMENT OF FACTS
       In December 2014, plaintiff Theresa Jones visited the home of defendants Clyde
and Julia Awad, located in Sonora, California, where plaintiff fell and suffered injuries to
her right wrist and humerus. The incident took place on a step that leads from the house
to the garage. When exiting the house to enter the garage, one must step down from the
parquet floor landing inside the home onto a step with a rattan mat on top of a piece of
carpet. From that step, one reaches the garage floor.
       The height from the parquet floor down to the step was approximately 10½ inches.
The height from the step to the garage floor was approximately seven inches.
       The piece of carpet was present on the garage step when defendants moved into
the home. Mrs. Awad testified she was unsure when the floor mat was placed on top of
the piece of carpet.
       As plaintiff was entering the garage, she took her first step down and believed her
foot was going to land on the step with the rug. Plaintiff’s foot landed on the rug but, “it
was like nothing was under the rug. [She] stepped on the rug and … hit the floor.”
Plaintiff did not observe what happened to the rug when she stepped on it, but later
believed that the rug had moved. John Pitsker, defendants’ adult son, was in the garage

                                             2.
when plaintiff fell. Though he did not actually see plaintiff fall, Mr. Pitsker testified the
floor mat had not moved after plaintiff stepped down, and that the mat was not easily
movable.
       At the time of the incident, the lighting was sufficient for plaintiff to see where she
was stepping. In addition, there was no debris or obstacles covering or otherwise
obscuring the steps. The step down into the garage would have been readily seen by an
average adult person.
       The home of defendants was built in 1977 and was purchased by defendants in
1989. The step where plaintiff fell was in the same configuration at the time of the
incident as it was when defendants moved into the home. During the 25 years defendants
lived in the home, Julia Awad never tripped or fell on the steps from the house into the
garage. Julia Awad is not aware of anyone else ever tripping or falling down the stairs
leading from the house to the garage during that time.
       The garage steps violated seven provisions of the Uniform Building Code (UBC)
at the time plaintiff fell. These violations included: the exterior landing was more than
seven and one-half inches below floor level (UBC § 3303(h)); the landing step was not
equal to the length of the door (UBC § 3303(h)); the door swung over the top step (UBC
§ 3303(h)); the step rise was more than eight inches (UBC § 3305(c)); the variation
between the largest and smallest rise is in excess of one-fourth inch (UBC § 3305(c)); no
handrail was on the open side (UBC § 3305(j)); and the door opening was less than the
required 30 inches and the top mat on the stair tread must be 30 inches wide (UBC
§ 3305(b)). When plaintiff fell, defendants were not aware of any of these code
violations.
                                     PROCEEDINGS
Defendants’ Motion for Summary Judgment
       In September 2017, defendants moved for summary judgment on the grounds
plaintiff was unable to establish one or more elements of her premises liability claim.

                                              3.
Defendants argued that (1) the condition of the garage step was open and obvious; (2)
defendants had no notice, either actual or constructive, that the garage step was
unreasonably dangerous; and (3) plaintiff could not establish the element of causation.
Plaintiff’s Opposition and Defendants’ Reply
       In November 2017, plaintiff filed her opposition, arguing there are triable issues of
material fact as to each matter raised in defendants’ motion. Specifically, plaintiff
emphasized the expert testimony of William Neuman, which included his opinion that the
cumulation of building code violations in relation to the garage steps created an
unreasonably dangerous condition and that plaintiff’s injuries were caused by these
violations.
       Defendants’ reply essentially reiterated the arguments laid out in their motion for
summary judgment.
Tentative Ruling
       On December 7, 2017, the trial court issued a tentative ruling granting the motion
for summary judgment, which stated that no reasonable jury could find defendants
breached their duty of care under the circumstances. The tentative ruling stated:

       “Plaintiff’s complaint alleges a single cause of action: ‘Personal Injury-
       Premises Liability.’ The undisputed evidence establishes that there was no
       breach as a matter of law, as no reasonable jury could find that Defendants
       failed to act with reasonable prudence under the circumstances. The
       statement of Plaintiff’s expert, William Neuman, that the dangerous
       condition of the stairs was such that Defendants would have or should have
       recognized multiple dangerous defects is not a proper expert opinion.
       Therefore, his statement does not raise a triable issue of material fact with
       respect to breach. Accordingly, Defendants have negated an essential
       element of Plaintiff’s cause of action and are entitled to judgment as a
       matter of law.”
       At the December 8, 2017 hearing, plaintiff invoked the doctrine of negligence per
se for the first time, based on the seven building code violations. The trial court then




                                             4.
ordered posthearing briefing on the topic of whether building code violations can be the
basis for a negligence per se instruction.
       Defendants filed rebuttal points and authorities, arguing (1) that the doctrine of
negligence per se cannot properly raise a triable issue of material fact because it was not
presented in the pleadings, (2) that negligence per se does not apply to building code
violations, and (3) that the harm suffered was not caused by any specific building code
violation.
       Plaintiff subsequently filed a reply brief, citing case law applying the doctrine of
negligence per se to building code violations and noting the building code violations
identified by plaintiff’s expert witness.
Order Granting Summary Judgment
       In February 2018, the trial court issued its “Order on Motion for Summary
Judgment,” granting defendants’ motion. The trial court concluded that the undisputed
evidence showed there was no breach of duty as a matter of law, as no reasonable jury
could find that defendants failed to act with reasonable care under the circumstances.
The trial court also determined plaintiff’s expert’s opinion that the dangerous condition of
the stairs was such that defendants would have or should have recognized multiple
dangerous defects to be inadmissible.
       With respect to the application of negligence per se, the trial court’s order stated,
“the Court is not persuaded by Plaintiff’s argument or the legal authority she provided for
this proposition.” The court determined that because defendants did not do the
construction work and did not hire the person who did the work, the doctrine of
negligence per se did not apply.
       In March 2018, judgment was entered and plaintiff timely appealed.




                                              5.
                                       DISCUSSION
I.     BASIC PRINCIPLES GOVERNING SUMMARY JUDGMENT
       A.     Triable Issues of Material Fact
       A party asserting the action has no merit or there is no defense to the action may
move for summary judgment. (Code Civ. Proc., § 437c, subd. (a)(1).) The court shall
grant a motion for summary judgment, “if 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).) To determine whether a triable
issue of material fact exists, the court must consider all evidence laid out in the moving
papers and all inferences reasonably deducible from the evidence. (Ibid.) A triable issue
of material fact exists if, “the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
845 (Aguilar).)
       B.     Standard of Review
       Appellate courts determine de novo whether an issue of material fact exists and
whether the moving party was entitled to summary judgment as a matter of law.
(Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.) Upon review, the appellate court
applies the same three-step analysis as the trial court. (Ibid.) This requires the court to
(1) identify the issues framed by the pleadings, (2) determine whether the moving party
has established facts justifying judgment in its favor, and (3) determine whether the
nonmoving party has demonstrated a triable issue of material fact. (Ibid.) In conducting
its review, the appellate court must, “view the evidence in a light favorable to plaintiff as
the losing party.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Under
the three-step analysis, the moving party bears the initial burden of showing there is no
genuine dispute of material fact and that it is entitled to judgment as a matter of law.



                                              6.
(Aguilar, supra, 25 Cal.4th at p. 845.) Typically, to meet this burden, a defendant
moving for summary judgment can either negate an element of the cause of action or
demonstrate a complete defense to plaintiff’s claim. (Ibid.) Only if the defendant meets
its initial burden does the burden shift to the plaintiff to show a triable issue exists.
(Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.)
II.     PREMISES LIABILITY
        “The elements of a cause of action for premises liability are the same as those for
negligence.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citing Ortega
v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) Accordingly, the plaintiff must
prove, “‘a legal duty to use due care, a breach of such legal duty, and the breach as the
proximate or legal cause of the resulting injury.’” (Beacon Residential Community Assn.
v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573, quoting United States
Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594.)
        Here, plaintiff failed to raise a triable issue of material fact with respect to breach
of duty. Therefore, defendants negated an essential element of plaintiff’s cause of action
and the trial court properly granted defendants’ motion for summary judgment.
        A.     Duty
        Whether an individual owes a duty of care is a question of law for the appellate
court to review de novo. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)
California law requires landowners to maintain land in their possession and control in a
reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666,
674, disapproved of in part on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th
512, 522.) Consequently, landowners are liable for injuries caused by a lack of due care
in the maintenance of their property. (Davert v. Larson (1985) 163 Cal.App.3d 407,
410.)




                                               7.
       However, a generally recognized exception is that landowners have no duty to
warn of open and obvious dangers on their property because such dangers serve as
warnings themselves. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th
118, 126.)
       In the present case, defendants owed a duty of care to plaintiff. At the time of the
incident, defendants were the owners and possessors of the home where plaintiff fell and
was injured. Therefore, defendants had a duty to maintain the premises in a reasonably
safe condition.
       Furthermore, this case does not fall under the exception to the general duty of care
rule because the alleged defective condition of the stairs was not open and obvious.
Plaintiff claims it was the unexpected two and one-half to three-inch difference in step
height that caused her to fall, and not the step in general. While the existence of the step
itself was open and obvious, the indistinct change in elevation between each step would
not have been apparent to an individual stepping down. Additionally, the fact that the
garage step area was free of debris, cracks, and obstacles would further reduce an
individual’s expectation of danger. Therefore, this exception does not relieve defendants
of their duty of care.
       B.     Breach of Duty
       While a landowner is not the insurer of a visitor’s safety, a landowner must
exercise ordinary care by making reasonable inspections of the premises to ascertain
whether any dangerous conditions exist on the property. (Ortega, supra, 26 Cal.4th at p.
1205.) If a dangerous condition does exist, the landowner must, “‘use the care required
of a reasonably prudent [person] acting under the same circumstances.’” (Ibid, citing
Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 448.) Failure to do so constitutes
a breach of duty of care. (Brooks v. Eugene Burger Management Corp. (1989) 215
Cal.App.3d 1611, 1619.)



                                             8.
       If the dangerous condition is brought about by third persons, “then to impose
liability the owner must have either actual or constructive knowledge of the dangerous
condition or have been able by the exercise of ordinary care to discover the condition,
which if known to him, he should realize as involving an unreasonable risk to invitees on
his premises.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806.) Actual knowledge is
defined as “‘express information of a fact,’” while constructive knowledge is that
“‘which is imputed by law.’” (In re Marriage of Cloney (2001) 91 Cal.App.4th 429, 436,
citing Civ. Code, § 18.) The court in Louie v. Hagstrom’s Food Stores, Inc. (1947) 81
Cal.App.2d 601, 607 applied the test for actual and constructive knowledge as it is
described in Restatement (First) Torts section 343:

       “‘A possessor of land is subject to liability for bodily harm caused to
       business visitors by a natural or artificial condition thereon if, but only if,
       he (a) knows, or by the exercise of reasonable care should discover, the
       condition which, if known to him, he should realize as involving an
       unreasonable risk to them.’” (Louie v. Hagstrom’s Food Stores, Inc.,
       supra, at p. 607.)
       Typically, to charge an individual with constructive notice, he must have, “actual
notice of facts or circumstances which are sufficient to put a prudent person on inquiry as
to the existence of the fact with respect to which he is charged with constructive notice.”
(Nicholson v. Los Angeles (1936) 5 Cal.2d 361, 364.) Therefore, a landowner cannot be
charged with constructive notice without a showing of some overt feature surrounding the
dangerous condition, which would notify the landowner of its existence. (Ibid.)
       Here, the trial court properly concluded that plaintiff failed to raise a triable issue
of material fact with respect to defendants’ actual or constructive knowledge of the
dangerous condition of the garage steps. First, with respect to actual knowledge, plaintiff
does not challenge the testimony of Julia Awad that defendants were never informed of
any UBC violations in the garage step area. Instead, plaintiff argues defendants had
actual knowledge of the dangerous condition because defendants placed the rattan mat,



                                               9.
which violated section 3305(b) of the UBC, on the first step. However, this fact alone is
insufficient to raise a triable issue of material fact. While it is true that the rattan mat did
not comply with the UBC, it does not necessarily follow that the mat constituted a
dangerous condition. (See Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928.)
Plaintiff does not explain how the failure of the rattan mat to meet the 30-inch width
requirement created a dangerous condition.
       Plaintiff does not challenge the trial court’s ruling sustaining an objection to the
statement by plaintiff’s expert William Neuman that, “the dangerous condition of the
stairs was such that defendants would have or should have recognized multiple dangerous
defects.” Appellate courts do not consider evidence to which objections have been made
and properly sustained. (Code Civ. Proc., § 437c, subd. (c); see Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 334.) Additionally, plaintiff does not dispute the testimony of
Julia Awad that during the entire 25-year span that defendants lived in the home prior to
plaintiff’s fall, neither Mrs. Awad, nor any other visitor, ever tripped or fell as a result of
using the garage steps. Plaintiff’s only argument is that because of the cumulation of
building code violations and the length of time defendants lived in the home, defendants
should have recognized the existence of the dangerous condition. However, this is
merely a legal conclusion.
       Plaintiff fails to point to any conspicuous element of the garage steps that would
put a reasonably prudent person on notice of an unreasonable risk of harm. Rather,
plaintiff does the opposite, by listing several relatively minor deviations from the
standards set forth in the UBC. The number of violations is not significant unless it is
shown the violations produced some noticeable feature of the garage steps. Without
more, it cannot be concluded that the variation of a few inches is sufficient to raise a
triable issue of material fact with respect to constructive notice.
       This case is analogous to Lovell v. Thompson (2016) 143 A.D.3d 511 [39
N.Y.S.3d 420, 421], where the plaintiff fell down a set of stairs located inside a single-

                                              10.
 family home and subsequently sued the homeowners for her injuries. The court refused
 to charge the homeowners with having constructive notice, reasoning that the
 homeowners had never been cited for a building code violation with respect to the stairs,
 the stairs were used regularly, and no one had ever before fallen on the stairs. (Ibid.)
 Similarly, in the present case, plaintiff does not establish a discernible feature of the
 garage steps that would notify defendants of an unreasonable risk of harm or any prior
 incidents that would alert defendants to the existence of a dangerous condition.
 Therefore, plaintiff failed to meet her burden of demonstrating a triable issue of material
 fact.
III.     NEGLIGENCE PER SE
         A.      General Principles
         Under the doctrine of negligence per se, compliance with the standard of conduct
 established by the relevant statute, ordinance, or regulation is adopted as the duty of care.
 (Alarid v. Vanier (1958) 50 Cal.2d 617, 622.) This creates a rebuttable presumption of
 negligence where the statute, ordinance, or regulation is violated. (Elsner v. Uveges
 (2004) 34 Cal.4th 915, 927.) Negligence is presumed if:

         “(1) [the individual] violated a statute, ordinance, or regulation of a public
         entity; [¶] (2) The violation proximately caused death or injury to person or
         property; [¶] (3) The death or injury resulted from an occurrence of the
         nature which the statute, ordinance, or regulation was designed to prevent;
         and [¶] (4) The person suffering the death or the injury to his person or
         property was one of the class of persons for whose protection the statute,
         ordinance, or regulation was adopted.” (Evid. Code, § 669, subd. (a).)
         Negligence per se is an evidentiary doctrine, rather than an independent cause of
 action. (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1285–1286.) It can
 be applied generally to establish a breach of due care under any negligence-related cause
 of action. (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233,
 1248.) Therefore, the doctrine of negligence per se is within the scope of pleadings that



                                               11.
allege general negligence, as proof of a breach of duty is not limited to common law
standards of care. (Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 680.)
        B.     Plaintiff’s Allegation/Complaint
       Plaintiff’s complaint states a single cause of action labeled “Personal Injury-
Premises Liability.” In the complaint, plaintiff first alleges she, “tripped and fell while
stepping down a dangerous, defective and hazardous step at the Defendants’ residence,
thereby causing injury and damages to Plaintiff.” Second, the complaint alleges
defendants, “negligently failed and neglected to fix, repair, guard against or remedy [the
step] before the subject incident.” Third, plaintiff alleges defendants, “negligently caused
… or otherwise allowed to exist said dangerous, defective, and hazardous condition in an
area allowed for usage by persons lawfully allowed on the premises.” Finally, the
complaint alleges plaintiff suffered injuries as a direct result of defendants’ negligence.
        C.     First Step of Summary Judgment Analysis
       Summary judgment proceedings usually are limited to the issues framed by the
pleadings. (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403,
421.) However, courts are encouraged to take a liberal approach in determining the scope
of the pleadings, so long as those pleadings provide adequate notice to the opposing party
of the theories on which relief is generally being sought. (Id. at p. 422) “The test is
whether such a particular theory or defense is one that the opposing party could have
reasonably anticipated would be pursued, and whether a request for leave to amend
accordingly would likely have been granted.” (Ibid., see Code Civ. Proc., § 452 [liberal
yet reasonable construction of pleadings].)
       Here, negligence per se is within the scope of the issues framed by plaintiff’s
complaint. Plaintiff’s complaint contains a single cause of action labeled “Personal
Injury-Premises Liability” and repeatedly uses the term “negligently.” (See Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1142 [premises liability is a negligence-based



                                              12.
claim].) Because negligence per se can apply generally to any negligence-based cause of
action, we conclude plaintiff’s allegations of negligence via premises liability put
defendants on notice of the potential application of negligence per se to establish breach
of duty.
           D.   Application of Negligence Per Se to the Facts of this Case
       While courts have applied negligence per se to building code violations, it has
only been applied in limited situations. For instance, every case cited by plaintiff
involved a defendant who played a professional role in the design or construction of the
building. In Krusi v. S.J. Amoroso Constr. Co. (2000) 81 Cal.App.4th 995, the
purchasers of a two-story commercial building sued the architects and contractors who
designed and constructed the building. In Huang v. Garner (1984) 157 Cal.App.3d 404,
purchasers of an apartment building sued the building designer for the project and the
project’s civil engineer. In both Morris v. Horton (1994) 22 Cal.App.4th 968 and Keru
Investments, Inc. v. Cube Co. (1998) 63 Cal.App.4th 1412, property owners sued the
individuals who performed the construction work. On the other hand, the court in
Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209 declined to assign ordinary
landowners the duty to comply with building code requirements generally.
       The facts of the present case do not give rise to an application of negligence per
se. Defendants were simply homeowners and did not take part in any aspect of the
design or construction of the garage step area. Defendants never had any knowledge of
the building code violations, which existed when they purchased the home in 1989, and
never experienced any incidents with the garage steps until plaintiff’s fall in 2014.
       In addition, the presence of a building code violation does not automatically
render defendants at fault. The violations in this case are relatively minor, with several
features of the garage step area listed by plaintiff deviating a few inches or less from the




                                             13.
standards required by the UBC. Therefore, case precedent does not favor application of
negligence per se to the facts of this case.
                                       DISPOSITION
       The judgment is affirmed. Defendants shall recover their costs on appeal.


                                                      ______________________
                                                      FRANSON, J.


WE CONCUR:


____________________
DETJEN, Acting P.J.


____________________
SMITH, J.




                                               14.
Filed 9/16/19




                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

 THERESA A. JONES,
                                                                    F077359
          Plaintiff and Appellant,
                                                           (Super. Ct. No. CV60288)
                  v.

 CLYDE AWAD et al.,                                  ORDER GRANTING REQUEST FOR
                                                      PUBLICATION AND DENYING
          Defendants and Respondents.                        REHEARING


      As the nonpublished opinion filed on August 22, 2019, in the above entitled matter
hereby meets the standards for publication specified in the California Rules of Court, rule
8.1105(c), it is ordered that the opinion be certified for publication in the Official
Reports.

       Appellant’s petition for rehearing filed on September 6, 2019, in the above
referenced case is hereby denied.


                                                        FRANSON, J.


WE CONCUR:


DETJEN, Acting P.J.


SMITH, J.
