Campbell v. Budd
| Decision Date | 18 October 2022 |
| Docket Number | B306687 |
| Parties | ELLA CAMPBELL, et al., Plaintiffs and Appellants, v. ROBBIN BUDD, et al.,Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. BC714612, 19STCV43325, Stephen L. Goorvitch, Judge.
Law Offices of Brian J. Breiter, Brian J. Breiter, and Chance J Pardon; Esner, Chang & Boyer, Shea S. Murphy and Kevin K Nguyen for Plaintiffs and Appellants.
Law Offices Muhar, Garber, Av and Duncan and Lucio O. Leon Greines, Martin, Stein & Richland and Robert A. Olson for Defendants and Respondents.
Twelve-year-old Ella Campbell walked into a sliding glass door at a vacation rental and suffered significant injuries when the glass shattered. Ella and her parents sued landlords Robbin Budd and Jeffrey Waid for premises liability and negligence alleging they failed to maintain their property in a reasonably safe condition because the glass in the door was not tempered and the transparent glass door lacked warning labels to show it was closed. The trial court granted landlords' motion for summary judgment. We affirm.
In April 2005, landlords purchased a single family home that they rented to short-term tenants. The property is located in Cathedral City and was built in 1958. Shortly after their purchase, landlords installed a swimming pool in the backyard, which is accessed through a sliding glass door. Beginning in 2006, landlords would rent the property four to five times per year for periods ranging from weeks to months.
The Campbell family rented the property from December 17, 2017 to January 5, 2018. On the morning of January 1, 2018, towards the end of their stay, Ella walked through the sliding glass door on her way to the pool because the glass was transparent and she did not realize the door was closed. The glass shattered and Ella suffered severe lacerations, abrasions, and avulsions. Prior to the incident, the Campbell family, including Ella, had used the sliding door multiple times a day without incident.
The sliding door was already installed when landlords purchased the property, and they did not replace it during their ownership. It contained two panels of glass, each measuring approximately 73 inches by 45 inches, surrounded by a metal frame that slid within a metal jamb or track. No other renters had had problems with the sliding door from the time the landlords first rented the property.
On July 19, 2018, Ella, through her father as guardian ad litem, brought suit against landlords for premises liability and negligence. Her principal allegations were that the sliding door was made of untempered glass, which constituted a dangerous and unsafe condition. By failing to replace the door with tempered glass, landlords breached their duty to keep the property in good and safe condition. Ella further alleged her injuries were a direct result of landlords' negligence. On December 2, 2019, Ella's parents filed a separate complaint asserting identical causes of action against landlords and seeking emotional damages.[1] The parties stipulated to consolidate the two cases, and the trial court designated Ella's as the lead case.
Landlords moved for summary judgment, arguing there was no triable issue as to any material fact because (i) plaintiffs failed to produce evidence of a breach of legal duty; (ii) landlords did not have a legal duty to install a tempered glass door; and (iii) plaintiffs failed to produce evidence of causation. Landlords presented a separate statement of undisputed facts describing the incident and the sliding door as we have described.
Landlords submitted a declaration from a structural engineering expert, who maintained the sliding door was not a hazardous condition at the time of the incident. The expert reviewed the building codes and ordinances in place at the time the sliding glass door was installed (when the house was built in 1958) and found they did not require tempered glass. Later-enacted building codes did not require property owners to replace as-constructed or undamaged untempered glass doors with tempered glazing panes.
In opposition, plaintiffs argued: Landlords had a duty to periodically inspect the property and to take reasonable steps to prevent injury due to unsafe conditions; there were triable issues of material facts regarding whether landlords breached their duty of care by failing to replace the sliding door with tempered glass; and there was a triable issue of material fact regarding whether landlords' negligence was a substantial factor in causing Ella's injuries.
Plaintiffs presented the deposition testimony of Cathedral City's chief building official, who testified as to the safety requirements for short term rentals in the city. The chief building official testified that tempered glass was required for new exterior sliding glass doors in Cathedral City as of January 1, 2018. If an existing door were replaced or modified, the glass should be replaced with tempered glass.
Plaintiffs also submitted an expert declaration from Brad Avrit, a civil engineer. Avrit found the sliding door was in an unsafe and dangerous condition at the time of the incident because it was made with annealed glass, which breaks with little impact into large shards. Tempered glass, on the other hand, is less likely to break upon impact and does not break into large shards. The Uniform Building Code began requiring tempered glass in the 1960s. Avrit posited that it was more likely someone would inadvertently collide with the door because the glass was transparent, and it led to the backyard and pool on a foreseeable pedestrian path of travel.
Avrit stated the dangerous condition had existed for years prior to the incident and could have been prevented if landlords had done a proper inspection and replaced the glass with tempered glass and utilized adequate warnings and markings on the door to alert an occupant that the door was closed. It was Avrit's opinion that landlords should have replaced the glass in the sliding door in 2005 when they replaced several other doors on the property and installed the pool. In 2005, the operative 2001 California Building Code required safety glass doors such as the one at issue.
Landlords objected to the entirety of Avrit's declaration on the grounds it was speculative and lacked foundation. Avrit did not personally inspect the property; he relied on photographs taken by his associate. Landlords questioned Avrit's qualification to offer the opinions he gave in his declaration as he failed to demonstrate expertise regarding sliding glass doors, annealed glass, tempered glass, or the "human factors" associated with the same. They also argued Avrit failed to identify what industry standards, applicable case law or building codes, if any, the landlords had failed to satisfy. Instead, Avrit opined, "the propensity for human impact with such large glass panels is well known and documented in the industry," without identifying the industry to which he referred.
The trial court granted landlords' motion, finding they did not have a duty to replace the glass in the door with tempered glass or affix warning labels as suggested by Avrit. The trial court also sustained landlords' objections as to portions of Avrit's declaration, as discussed below.
Plaintiffs appealed.
Plaintiffs contend the trial court improperly concluded landlords owed no duty to maintain their rental property in a reasonably safe condition by replacing the glass doors and affixing warning labels to show the door was in a closed position. They further contend the trial court erred when it sustained objections to portions of expert Avrit's declaration. We begin our analysis with the standard of review.
(Canales v. Wells Fargo Bank, N.A. (2018) 23 Cal.App.5th 1262, 1268-1269.) Code of Civil Procedure section 437c "place[s] the initial burden on the defendant moving for summary judgment and shift[s] it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
A defendant "moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense thereto. (Ibid.; Code Civ. Proc., § 437c, subd. (o)(2).)
Once the moving party's burden is met, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff must produce" 'substantial'" responsive evidence sufficient to establish a triable issue of fact. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415.) "[R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)
"The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause...
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