Tabita v. City of Los Angeles CA2/1

Filed 10/5/20 Tabita v. City of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LAURIZA TABITA, B297258

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC644836)
v.

CITY OF LOS ANGELES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura A. Seigle, Judge. Affirmed.
Alderlaw, Michael Alder and Jennifer P. Burkes for
Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Assistant City Attorney, Scott Marcus, Chief, Civil
Litigation Branch, Blithe S. Bock, Assistant City Attorney, and
Matthew A. Scherb, Deputy City Attorney, for Defendant and
Respondent.
_______________________
 Plaintiff Lauriza Tabita appeals the trial court’s grant of
summary judgment in favor of defendant City of Los Angeles
(City). We have jurisdiction under Code of Civil Procedure
section 904.1, subdivision (a)(1). We affirm.

BACKGROUND
The event forming the basis of this lawsuit is alleged to
have occurred at Seoul International Park, located at 3252 San
Marino Street in Los Angeles, which is maintained by the City of
Los Angeles. Within the park is a parking lot. Since at least
1952, the same set of four steps (and partial bottom step) has
provided passage from the parking lot down to the park level and
gym. The stairs have no handrails. Instead, the stairs are
bounded on both sides by walls. The stairs and walls are in good
shape—no chips, cracks, holes, or the like—and no signs that
handrails had ever been installed. There are no records of any
request for maintenance or repair related to the stairs, nor any
other evidence of complaints or incidents.
For the June 7, 2016 election, the County of Los Angeles
used the gym at Seoul International Park as a polling place.
Tabita was to be an election inspector for the County. She
arrived at the park that morning, parked in the parking lot, and,
without incident, descended the four steps and entered the gym.
She had no problem with the stairs and did not need to hold on to
anything. Once inside, she found her co-workers and asked them
to fetch supplies from her truck. Without incident, three female
co-workers ascended the stairs to the truck and, carrying boxes
and equipment, descended them back to the gym. Then, Tabita
herself ascended the stairs, again without incident, and moved
her truck.

2
 Returning to the gym, Tabita descended the stairs with
coffee in her right hand and a folder under her armpit. She took
three of the steps down just fine, but when she went for the
fourth step with her left foot, she “hit the edge” of the third step
and lost her balance. She tried to reach for support towards her
left with her empty left hand, but she found no rail, twisted her
foot, and fell back. When reaching out, she did not grab or try to
grab the side wall. After a few minutes, she returned to the gym,
decided to leave, walked back up the same stairs, and drove
herself to obtain medical care.
Tabita’s complaint, filed on December 22, 2016, alleges a
single count of negligence based on a dangerous condition of
public property. Tabita alleges that “defendants and each of
them, carelessly and negligently owned, inspected, controlled,
constructed, repaired, designed and maintained said [stairs] in a
dangerous, hazardous, and unsafe condition to pedestrians,
including the plaintiff herein,” and that the defendants had
actual and constructive notice of such conditions. The complaint
seeks general and special damages according to proof arising out
of the alleged injury.
On December 28, 2018, the City filed a motion for summary
judgment. The City asserted three legal grounds for this motion:
(a) so-called trail immunity under Government Code section
831.4, subdivisions (a) and (b); (b) lack of evidence of dangerous
condition or causation under Government Code section 835; and
(c) so-called design immunity under Government Code section
830.6. Tabita opposed the motion based primarily on the basis of
a declaration submitted by retained expert Mark J. Burns. The
City objected to the Burns declaration on various grounds. On
reply, the City also submitted a declaration from a civil engineer

3
employed by the City, David Takata, rebutting assertions in the
Burns declaration as to the application and effect of building
codes that existed at the time of the construction of the stairway
in 1952.
Following a hearing on March 15, 2019, the trial court
issued a written decision granting the City’s motion for summary
judgment. The trial court sustained the City’s objections to
paragraphs 11 and 12 of the Burns declaration. On the merits,
the trial court concluded that neither trail immunity nor design
immunity applied to shield the City from liability. However, the
trial court concluded that Tabita had not established the
existence of any triable issue of material fact as to a dangerous
condition of the stairway causing Tabita’s accident, and granted
summary judgment in favor of the City. Tabita timely appealed.

DISCUSSION
A. Standard of Review
We review a “summary judgment de novo, applying the
same legal standard as the trial court.” (Anderson v. Fitness
Internat., LLC (2016) 4 Cal.App.5th 867, 876; accord, Biancalana
v. T.D. Services Co. (2013) 56 Cal.4th 807, 813.) A court must
grant summary judgment if the papers submitted show there is
no triable issue as to any material fact. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843; see Code Civ. Proc.,
§ 437c, subd. (c).)
A defendant has met its burden of showing that a cause of
action has no merit if it demonstrates that one or more elements
of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to the cause of
action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant

4
meets this burden, the burden shifts to the plaintiff to prove the
existence of a triable issue of fact regarding that element of its
cause of action or that defense. (Ibid.)
On appeal from a summary judgment, “we independently
examine the record in order to determine whether triable issues
of fact exist to reinstate the action.” (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “In
performing our de novo review, we view the evidence in the light
most favorable to the plaintiff[ ] as the losing part[y]. (Ibid.;
accord, Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,
768.) In doing so, we liberally construe the plaintiff’s evidentiary
submissions and strictly scrutinize the defendant’s evidence in
order to resolve any evidentiary doubts or ambiguities in
plaintiff’s favor. (Wiener v. Southcoast Childcare Centers, Inc.,
supra, at p. 1142.)
B. Existence of Dangerous Condition
Tabita alleges that a dangerous condition on property
owned and maintained by the City caused her alleged injuries.
Government Code section 835 provides: “Except as provided by
statute, a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes that the
property was in a dangerous condition at the time of the injury,
that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and
that either: [¶] (a) A negligent or wrongful act or omission of an
employee of the public entity within the scope of his employment
created the dangerous condition; or [¶] (b) The public entity had
actual or constructive notice of the dangerous condition under

5
Section 835.2 a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.”
Government Code section 830, subdivision (a), provides in
part: “ ‘Dangerous condition’ means a condition of property that
creates a substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.”
Government Code section 830.2 provides: “A condition is
not a dangerous condition within the meaning of this chapter if
the trial or appellate court, viewing the evidence most favorably
to the plaintiff, determines as a matter of law that the risk
created by the condition was of such a minor, trivial or
insignificant nature in view of the surrounding circumstances
that no reasonable person would conclude that the condition
created a substantial risk of injury when such property or
adjacent property was used with due care in a manner in which it
was reasonably foreseeable that it would be used.”
Government Code section 830.5, subdivision (a), provides in
pertinent part: “[T]he happening of the accident which results in
the injury is not in and of itself evidence that public property was
in a dangerous condition.”
The City contended below and contends here that the steps
were not in a dangerous condition within the meaning of
Government Code section 830, subdivision (a). The undisputed
evidence submitted to the trial court showed that these stairs
were built approximately 70 years ago, in 1952. There was no
evidence of anyone having trouble with the stairs, or requesting
repair or maintenance. The stairs were in a “very good” physical
condition. Tabita’s accident occurred during daylight when the

6
stairs could be plainly seen and traversed. Tabita herself had
used the stairs earlier that morning without incident. Tabita’s
three election co-workers used the same stairs to carry supplies
to the gymnasium.
Tabita’s opposition to this aspect of the City’s motion was
based entirely on the Burns declaration, which asserted two
grounds on which the stairs should be considered dangerous:
(1) the absence of handrails alongside the four steps, and
(2) excessive depth of each tread (the horizontal surface),
exceeding 14 inches. These contentions were contained in
paragraphs 11 and 12 of the Burns declaration, to which the trial
court sustained the City’s objections.
1. Trial Court’s Evidentiary Rulings
The trial court ruled that paragraphs 11 and 12 of the
Burns declaration were inadmissible. We review evidentiary
rulings made on summary judgment motions for abuse of
discretion. (In re Automobile Antitrust Cases I & II (2016) 1
Cal.App.5th 127, 141; Ryder v. Lightstorm Entertainment, Inc.
(2016) 246 Cal.App.4th 1064, 1072.) This is particularly
applicable in review of rulings on expert testimony, which
regularly implicate the superior court’s gatekeeper function.
(Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773 [setting forth the standard generally
in the context of a pre-trial evidentiary motion] (Sargon); San
Francisco Print Media Co. v. The Hearst Corp. (2020) 44
Cal.App.5th 952, 961-963 [applying this standard on summary
judgment]; Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 51-
52 [same]; Property California SCJLW One Corp. v. Leamy (2018)
25 Cal.App.5th 1155, 1163-1164 [same]; Taylor v. Trimble (2017)
13 Cal.App.5th 934, 945 & fn. 15 [same].)

7
 The party challenging an evidentiary ruling “has the
burden to establish an abuse of discretion.” (O’Neal v. Stanislaus
County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184,
1199.) The appellate court interferes with the superior court’s
ruling “only if the party can show that no judge could reasonably
have made the same” decision. (Ibid.) That ruling must be “ ‘so
irrational or arbitrary that no reasonable person could agree with
it.’ [Citation.]” (Sargon, supra, 55 Cal.4th at p. 773.) A court’s
discretion, however, “is not unlimited” and “must be exercised
within the confines of the applicable legal principles.” (Ibid.)
Burns states that he has a Bachelor of Science in
Mechanical Engineering as well as a Juris Doctorate, and
professes to have “a specialized understanding of safety, human
factors, and best practices when constructing, managing, and
maintaining infrastructure.”
Paragraph 11 of the Burns declaration asserts that the
treads of the steps in this stairway were too deep, exceeding 14
inches. Burns states: “The design and construction of the subject
stairway was inherently dangerous. The treads were measured
to range from 14-5/8[ inches] to 15[ inches]. Numerous studies
regarding safe stairway design (attached herein as Exhibit ‘2’),
conclude that treads should not exceed 14[ inches] as unusually
long treads force stair users into unnatural gait mechanics on
descent wherein the user must take an abnormally long stride
between treads or take two steps on each tread. Either of these
abnormal actions could easily and unreasonably cause a misstep
incident.”
The trial court sustained the City’s evidentiary objections
to paragraph 11 on the grounds of hearsay and improper expert
opinion. The trial court wrote: “The statement about the

8
conclusion of the numerous studies and the two attached studies
are hearsay, as [the City] objected. The studies and their
conclusions about treads exceeding 14 inches are offered for the
truth of the matter asserted, and Burns did not establish the
reliability of the studies, that experts in his field of expertise rely
on the attached studies as background information, or that the
studies contain premises generally accepted in his field. (People
v. Sanchez (2016) 63 Cal.4th 665, 685.) . . . And his bare
conclusion that the treads were dangerous is not sufficient. The
[c]ourt may reject an expert’s conclusion ‘that does not contain “a
reasoned explanation illuminating why the facts have convinced
the expert” . . . . [Citations.]’ (Taylor v. Trimble[, supra,] 13
Cal.App.5th [at p.] 945, [fn]. 15; Bay Area Rapid Transit Dist. v.
Superior Court (1996) 46 Cal.App.4th 476, 482 [‘The value of
opinion evidence rests not in the conclusion reached but in the
factors considered and the reasoning employed’].)”
On appeal, Tabita complains that “[t]he trial court focused
solely on the two (2) articles cited by Burns. In doing so, the trial
court ignored Burns’ qualifications and also his statement that
his opinions were also based on his educational background,
professional training, and experience analyzing similar cases. . . .
His opinions regarding the height of the stairs and their causal
connection to the fall should have been considered by the trial
court.” However, the trial court correctly ruled that Burns’s
opinion represented no more than a “bare conclusion”
unsupported by a reasoned explanation. The ruling to exclude
paragraph 11 was not an abuse of discretion.
Paragraph 12 of the Burns declaration, to which the trial
court sustained the City’s evidentiary objections on the grounds
of lacking foundation and speculation, stated that the Los

9
Angeles City Building Code existing at the time the stairs were
built required all exterior stairways to have one or more
handrails, and further stated: “The purpose of requiring
handrails is to provide assistance and a means to arrest a fall
should balance be lost while utilizing the stairway. The
aforementioned code deficiency created an unsafe condition and
directly caused Ms. Tabita’s incident as after losing balance due
to the unusually long treads, she had no opportunity to grasp a
railing and prevent the fall.”
The City correctly notes that Tabita has failed to challenge
the trial court’s ruling sustaining its objections to paragraph 12
of the Burns declaration in her appeal. Thus, any contention of
error on this ruling is waived. (Soto v. Union Pacific Railroad Co.
(2020) 45 Cal.App.5th 168, 182 [“a party that fails to ‘attack the
[trial court’s evidentiary] rulings on appeal . . . forfeit[s] any
contentions of error regarding them’ ”]; Frittelli, Inc. v. 350 North
Canon Drive, LP (2011) 202 Cal.App.4th 35, 41 [challenges to
evidentiary rulings must be raised in opening brief]; Lopez v.
Baca (2002) 98 Cal.App.4th 1008, 1014-1015 [absent challenge,
appellate court considers all evidence excluded to be properly
excluded]; cf. Okorie v. Los Angeles Unified School Dist. (2017) 14
Cal.App.5th 574, 599-600 [challenge to rulings on evidence
forfeited by failure to properly raise them in briefing].)
In reply, Tabita attempts to salvage this omission by
arguing that the trial court’s ruling excluded only certain
portions of paragraph 12, and that the objections were
“overruled” as to other portions.1 The trial court’s written

1 This same contention was urged by Tabita’s counsel at
oral argument. However, from our reading of the City’s
objections and the trial court’s sustaining of those objections, the

10
decision, however, does not make this distinction. The trial
court’s ruling excluding paragraph 12 of the Burns declaration
was not an abuse of discretion. (Taylor v. Trimble, supra, 13
Cal.App.5th at p. 945, fn. 15; Bay Area Rapid Transit Dist. v.
Superior Court, supra, 46 Cal.App.4th at p. 482.)
2. Evidence of Dangerous Condition
The trial court’s ruling to exclude paragraphs 11 and 12 of
the Burns declaration largely eliminated Tabita’s ability to
demonstrate the existence of triable issues of material fact as to
the existence of a dangerous condition within the meaning of
Government Code section 830. Because the trial court
nonetheless addressed the merits of Burns’s statements in its
decision, we will do the same.
As to the depth of the treads, the only evidence proffered by
Tabita (via Burns) was based on two studies that the trial court
deemed inadmissible. At oral argument, the trial court told
Tabita’s counsel, “you could have gotten around this if the expert
had laid the foundation for these two articles, if the expert had
established their reliability and said that experts in my field
typically rely on . . . these articles in concluding whether stair
treads are dangerous or not. He didn’t do that.”
On appeal, Tabita argues that Burns did not need the
studies at all: he could assert the treads were dangerous based
simply on his own experience. This is not a legitimate detour

only sentence from the Burns declaration that would arguably
survive under Tabita’s interpretation is this: “According to the
building permits attained from the City of Los Angeles, a permit
for a ‘Playground Clubhouse’ was issued in 1949.” This does not
establish the existence of a triable issue of material fact as to
dangerous condition.

11
around the principles set forth in Sargon. Burns gave his
reasons—the studies—and the trial court properly exercised its
discretion to reject them. Without the studies, Burns’s statement
that the stairs are “inherently dangerous” is simply an
unreasoned conclusion, that does not establish a triable issue of
fact. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003)
114 Cal.App.4th 1108, 1117 [disallowing “conclusory” opinion
“unaccompanied by a reasoned explanation” because it “has no
evidentiary value”] (Jennings).)
At the same time, the portions of paragraph 12 of the
Burns declaration that Tabita claims were not excluded do not
close the gap in establishing a dangerous condition of the
stairway. The City and Tabita disputed whether the Los Angeles
City Building Code in effect at the time this set of stairs was built
required the installation of handrails. The excluded paragraph
12 of the Burns declaration asserts that the building code
required a handrail, and that ipso facto the absence of such a
handrail created a dangerous condition.
However, even if we were to assume that the applicable
building code at the time these stairs were constructed required
handrails, a code deficiency does not of itself establish
dangerousness. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1209
[“While it is true that the rattan mat did not comply with the
[building code], it does not necessarily follow that the mat
constituted a dangerous condition”]; Caloroso v. Hathaway (2004)
122 Cal.App.4th 922, 928 [“The court properly found no
foundation for [the expert’s] opinion that noncompliance with
certain building codes and standards made the crack
dangerous”].)

12
 Moreover, case law holds that the absence of a handrail,
even if it could have prevented or moderated a fall, does not
automatically create an unreasonable risk of harm. (Darrach v.
San Francisco County Medical Assn. (1953) 121 Cal.App.2d 362,
365 [“The absence of a handrail at steps used by the public does
not in itself indicate[ ] an unreasonable risk. [The a]ppellant
does not cite any rule of law, and we do not know of any, which
requires the outside steps of a building in public use always to be
provided with a handrail”].) Unless the configuration of stairs
and lack of handrail created a substantial risk, it does not
constitute a dangerous condition. (Davis v. City of Pasadena
(1996) 42 Cal.App.4th 701, 704; cf. Belcher v. San Francisco
(1945) 69 Cal.App.2d 457, 458 [sustaining demurrer to negligence
claim based on absence of handrails along steps of steeply sloping
city sidewalk].) “ ‘[L]iability is not to be fastened upon a
municipality merely because it may appear that certain property,
in nowise dangerous either in its construction or intended use,
could possibly be made safer by other means.’ [Citation.]” (Dole
Citrus v. State of California (1997) 60 Cal.App.4th 486, 494
[design immunity].)
Thus we affirm the trial court’s finding that Tabita failed to
established a triable issue as to the dangerous condition of the
stairway.
C. Proximate Cause
To establish liability under Government Code section 830,
subdivision (a), a plaintiff must not only prove the existence of a
dangerous condition on the public property, but also “that the
[plaintiff’s] injury was proximately caused by the dangerous
condition.” (Id., § 835.) Thus, Tabita must satisfy the causation
requirement applicable to all tort claims: “ ‘ “ ‘Causation’ is an

13
essential element of a tort action. Defendants are not liable
unless their conduct . . . was a ‘legal cause’ of plaintiff’s injury.
[Citations.]” [Citation.] “Generally, the burden falls on the
plaintiff to establish causation.” ’ (Whiteley v. Philip Morris, Inc.
(2004) 117 Cal.App.4th 635, 696 . . . ; Brookhouser v. State of
California (1992) 10 Cal.App.4th 1665, 1677 . . . [‘It is axiomatic
that a defendant cannot be held liable in tort for an injury he or
she did not cause’].) ‘Causation is generally a question for the
jury unless reasonable persons could not dispute the absence of
causation, in which case it may be treated as a question of law.’
(Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277,
289 . . . .)” (Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007)
149 Cal.App.4th 333, 338.) “To establish the element of actual
causation, it must be shown that the defendant’s act or omission
was a substantial factor in bringing about the injury. [Citation.]”
(Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming
grant of summary judgment for plaintiff’s failure to establish
causation].)
Tabita’s opposition to the City’s motion for summary
judgment again relied solely on the Burns declaration to
establish this element of her claim.
With regard to the depth of the treads on the stairway,
Tabita’s evidence of causation comes, again, from the excluded
paragraph 11 of the Burns declaration. There, Burns claims
“unusually long treads force stair users into unnatural gait
mechanics on descent wherein the user must take an abnormally
long stride between treads or take two steps on each tread.
Either of these abnormal actions could easily and unreasonably
cause a misstep incident.” (Italics added.)

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 This opinion is speculative and not tethered to the case
facts. For example, Burns does not give a reasoned analysis of
the physical characteristics of Tabita herself, who took numerous
successful steps on these stairs when not carrying coffee and a
folder. Burns states that unusually long treads “could” cause a
misstep, but he does not state this is more likely than not what
happened to Tabita on these steps and how he reached such a
conclusion. Burns also fails to cite any portion of the factual
record to support his conclusion.
These omissions are fundamental. Expert opinion
“unaccompanied by a reasoned explanation connecting the factual
predicates to the ultimate conclusion, . . . has no evidentiary
value because an ‘expert opinion is worth no more than the
reasons upon which it rests.’ [Citation.]” (Jennings, supra, 114
Cal.App.4th at p. 1117; see, e.g., Taylor v. Trimble, supra, 13
Cal.App.5th at p. 945, fn. 15 [“Neither this court nor the trial
court was required to accept [the expert’s] opinion that the color
of the surfacing contributed to the incident”].) The same is true
for an expert opinion based on assumptions without evidentiary
support, or based on speculative or conjectural factors.
(Jennings, supra, at p. 1117.) And with causation testimony, the
expert needs to give a reasoned explanation for why “it is more
probable than not the negligent act was a cause-in-fact of the
plaintiff's injury.” (Id. at p. 1118.) Burns’s opinion does not meet
this standard, and the superior court correctly exercised its
discretion to exclude it.
With respect to the absence of a handrail, addressed in the
excluded paragraph 12 of the Burns declaration, Tabita similarly
failed to establish a triable issue of fact on causation. Tabita’s
testimony indicates that she lost her balance while going down

15
the steps, and that she was unable to regain her balance due to
the lack of a handrail. She did not claim that the lack of handrail
caused her to lose her balance in the first place. (See, e.g.,
Blodgett v. B.H. Dyas Co. (1935) 4 Cal.2d 511, 513 [affirming
judgment of non-suit against the plaintiff on causation; “ ‘The
evidence shows that the lack of the handrail was neither the
proximate nor any cause of [the] plaintiff’s fall. Any violation of
the ordinance by the defendant would, therefore, be
immaterial’ ”]; Hazelwood v. Gordon (1967) 253 Cal.App.2d 178,
181 [“Assuming arguendo that [the] appellant’s evidence showed
the stairway failed to meet statutory standards [of the applicable
Los Angeles City Ordinances in the construction of the stairway],
she did not sustain her burden of proving that such violations
proximately caused her injuries”]; Holmes v. Moesser (1953) 120
Cal.App.2d 612, 614 [affirming directed verdict for the defendant
on causation; “the uncontradicted evidence discloses that the
proximate cause of [the] plaintiff[’]s . . . injury was the slipping of
her foot off the step which caused her to fall and be injured and
not the absence of a handrail on the stairway”].)
Tabita also did not submit admissible evidence that if there
had been a handrail, she would have regained her balance or not
been injured after she initially lost her balance. The only
evidence submitted by Tabita to the trial court on this point was
in the excluded paragraph 12 of the Burns declaration.2 After

2 Tabita’s counsel asserted at oral argument that the fact
that the trial court discussed these issues even after sustaining
the City’s evidentiary objections to the Burns declaration
somehow meant that the trial court had not really excluded these
portions of the Burns declaration after all. However, we view the

16
discussing the 1948 Los Angeles City Building Code, Burns
states, “The purpose of requiring handrails is to provide
assistance and a means to arrest a fall should balance be lost
while utilizing the stairs. The aforementioned code deficiency
created an unsafe condition and directly caused . . . Tabita’s
incident as after losing balance due to the unusually long treads,
she had no opportunity to grasp a railing and prevent a fall.”
Burns’s statements are not evidence of a probability that
Tabita would have arrested her fall if a handrail had been
present. As the trial court noted, even the language he uses
illustrates, at most, a handrail would have presented a
possibility, or as Burns puts it, an “opportunity,” for Tabita to
stop her fall. He points to no evidence for the conclusion that the
absence of a handrail “directly caused . . . Tabita’s incident.” He
does not address where a handrail might have been in relation to
Tabita’s position on the stairway. He does not say that he
measured the distance from Tabita to the location where a
handrail would have been placed, as well as the length of Tabita’s
arm, to show that a handrail would have been within her reach
as she fell.
On appeal, Tabita now argues that she “did not need to
present an expert in order to create a factual dispute regarding
causation,” and that “the jury should have been permitted to
draw upon their ordinary human experiences to decide the
question of causation.” Tabita argues that her own deposition
testimony—which was before the trial court only because the City
had submitted certain excerpts of that testimony in support of its

trial court’s discussion of these matters as giving Tabita the
benefit of the doubt as non-moving party.

17
motion—should have been sufficient to establish a triable issue
as to causation.
We disagree. Tabita’s deposition testimony stated, “when I
was going to take the fourth step with my left foot, I hit the edge
of the stair on the same step, the third step, and I lost my
balance. So I—with my left hand I tried to grab the rail and
there wasn’t any. So I lost my balance. I twisted my foot. I hurt
myself and I fell back.” This testimony does not establish that
the absence of a handrail proximately caused her injury. For
example, Tabita did not testify that her hand grazed, or even
approached, the left wall bounding the stairs. In fact, she
testified when she reached for a rail, she did not grab the wall
and fell backward.
As for the remnant of paragraph 12 of Burns’s declaration
that Tabita contends was not excluded by the trial court’s ruling
sustaining of the City’s evidentiary objections, that too would not
constitute admissible evidence to create a triable issue on
causation.3 It was at best a naked conclusion without
explanation or reasoning, irrespective of Tabita’s contention that
“Mr. Burns had the education, qualifications, and experience to
express his opinions about the stairs.” A proffered expert opinion
based only on the expert’s claimed knowledge and experience,
without setting forth reasoning and support for that opinion, is
not properly admissible to demonstrate a triable issue of material
fact. (Sargon, supra, 55 Cal.4th 747.) An expert cannot

3 Our review of the record indicates that the trial court
expressly excluded Burns’s conclusions in paragraph 12 on the
grounds of “speculation.” We disagree with Tabita’s contention
that these conclusions survived the trial court’s evidentiary
ruling.

18
speculatively turn theoretical possibilities into realities.
(Jennings, supra, 114 Cal.App.4th at p. 1118.) “California courts
have been particularly chary of expert testimony based on
assumptions that are not supported by the evidentiary
record . . . .” (People v. Wright (2016) 4 Cal.App.5th 537, 545.)
Thus, we affirm the trial court’s ruling that Tabita failed to
demonstrate a triable issue as to causation.
D. Conclusion
In accordance with Code of Civil Procedure section 437c,
subdivision (c), considering all of the evidence set forth in the
papers, except the evidence to which objections were made and
sustained by the trial court, and all inferences reasonably
deducible from the evidence, we conclude that the City
satisfactorily demonstrated that there was no triable issue as to
any material fact and that the City, as moving party, was entitled
to a judgment as a matter of law.
E. Trail Immunity
The City urges as an alternative ground for affirmance of
the summary judgment that the opinion in a recent case, Lee v.
Department of Parks & Recreation (2019) 38 Cal.App.5th 206,
decided after the trial court rendered its decision in this case,
would support the City’s characterization of the stairs as part of a
“trail” for purposes of the immunity under Government Code
section 831.4, subdivisions (a) and (b). Tabita argues that this
argument is foreclosed by the City’s failure to cross-appeal the
trial court’s ruling against it on the trail immunity question.
In light of our holding above that summary judgment was
properly granted, we do not deem it necessary to address this
additional issue here.

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 DISPOSITION
The judgment is affirmed. Respondent shall recover its
costs on appeal.
NOT TO BE PUBLISHED

SINANIAN, J.

We concur:

CHANEY, J.

BENDIX, Acting P. J.

 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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