Kaney v. Custance

Filed 1/21/22
Corrected version
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LYDIA KANEY, B302835

Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. BC619247)

CAROL A. CUSTANCE,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County. Jon R. Takasugi, Judge. Reversed.

B&D Law Group, Daniel D. Geoulla, Marcelle A. Obeid,
Babak Kheiri and Arian Barkhordar for Plaintiff and Appellant.

Ford, Walker, Haggerty & Behar, Armen A. Avakian and
Ashley S. Loeb for Defendant and Respondent.

Horvitz & Levy, Frederic D. Cohen, Steven S. Fleischman
and Rebecca G. Powell for The Association of Southern California
Defense Counsel as Amicus Curiae on behalf of Defendant and
Respondent.
_________________________
 Is a plaintiff barred as a matter of law from proving
causation in a slip and fall case if there were no witnesses to the
fall and he or she remembers being on stairs 1 and then waking
up in pain but does not remember the fall itself? No. That is not
the law in California. We conclude that the trial court erred
when it granted summary judgment in favor of defendant
Shirley B. Cassell (Cassell) 2 on the negligence complaint filed by
Lydia Kaney (appellant). Though appellant cannot remember
falling on Cassell’s stairs, the circumstantial evidence would
permit a trier of fact to make a reasonable and probable inference
that the condition of the stairs, including the absence of a
handrail, was a substantial factor in the fall. 3
FACTS
Background
Cassell owned a residential property (property) in the City
of Hermosa Beach (City) since 1972. The property has one

1 We use “stairs” and “stairway” interchangeably when
referring to the stairs that appellant was using just prior to her
fall.

2 Cassell was the original respondent in this appeal. She
passed away and we appointed Carol A. Custance (respondent) as
Cassell’s successor in interest and substituted her in as the
respondent in this matter pursuant to California Rules of Court,
rule 8.36(a).

3 Appellant seeks review of the denial of a motion for new
trial as well as summary judgment. Because we conclude that
the trial court erred when it granted summary judgment, denial
of the new trial motion is moot.

2
bathroom, which has a two-step stairway leading up to a platform
with a commode.
The stairway did not have a handrail.
Appellant’s sister, Marilyn Mazza (Mazza), rented the
property from Cassell for approximately 18 years, and over that
time appellant visited Mazza on multiple occasions. Sometimes
appellant would stay for as long as 10 days to two weeks. She
used the bathroom during her visits, and did so without any
mishaps.
In September 2014, appellant was visiting Mazza and used
the bathroom up to five times. At some point, the light to the
bathroom stopped working. Appellant used the stairs, fell, and
suffered injuries.
The Complaint
Appellant filed a form complaint in 2016 against Mazza
and Doe defendants. The complaint set forth causes of action for
premises liability and negligence. It alleged: “[Appellant] was
lawfully on [the defendants’] premises when . . . [she] tripped and
fell in the bathroom. [The defendants] failed to remedy, remove,
alleviate, and/or warn of the hazard, thereby creating a
dangerous condition on [the defendants’] premises. As a result,
[the defendants] caused . . . [appellant] to suffer personal
injuries[.]” Appellant amended her complaint to substitute
Cassell in for a Doe.
According to the complaint, the defendants owed appellant
legal duties, breached them and thereby caused damages.
Alternatively, it alleged that the defendants “violated [the
American’s with Disabilities Act] (ADA), California Health &
Safety Codes [sic], building codes, and/or ordinances,” appellant

3
was in the class of persons protected by those laws, and the
violations caused her damages.
Mazza’s Settlement
Mazza settled for $300,000.
Cassell’s Motion for Summary Judgment
Moving Papers
Cassell argued: (1) she had no duty to warn appellant of
the open and obvious dangerous stairs leading to the commode;
(2) she had no duty to remedy the open and obvious dangerous
condition because she was never given notice that the stairs were
dangerous or needed repair; (3) she was not given notice that
there was a problem with the bathroom light, which allegedly
contributed to appellant’s fall; (4) contrary to appellant’s position,
the stairs did not violate any codes and Cassell did not have a
statutory duty to change them because they were “grandfathered
in” as a permissible nonconforming use under City of Hermosa
Beach Municipal Code section 17.52.020; 4 and (5) there were no
triable issues as to causation because appellant does not
remember how she fell, and the only evidence of causation was

4
Section 17.52.020 of the City of Hermosa Beach Municipal
Code provides: “The nonconforming use of a building may be
continued, provided any structural alteration or expansion shall
comply with Section 17.52.030. [¶] . . . [¶] A nonconforming
structure may be maintained and the use therein continued,
provided any structural alteration or expansion shall comply with
Section 17.52.030. [¶] Routine maintenance and repairs, repairs
and/or replacement to plumbing, electrical wiring and similar
work, shall not be considered structural alterations within the
meaning of this Chapter, and may be performed on
nonconforming structures and buildings containing
nonconforming uses.”

4
Mazza’s deposition testimony that her worn out bath mat may
have been the cause of appellant’s fall. In support, Cassell
adverted to her declaration and the depositions of Robert Rollins
(Rollins) and Mazza.
Rollins was a Building and Code Enforcement Official for
the City of Hermosa Beach. He testified regarding a Report of
Residential Building Record dated October 19, 1972, that
pertained to the property. It was generated when the property
was sold to Cassell and referenced the property’s historical
activities. The report indicated “‘city condemnation required that
[the property] be brought up to minimum code,’” and that all
“work [was] completed and given okay 7-10-70.” The “Permit
Record” section of the report referenced a plumbing permit and
an electrical permit. 5 Rollins assumed that “there were
substandard plumbing and electrical conditions in [the] property
prior to the corrective actions.” There was no record of any
nonconformities or code violations other than those that had been
noted and corrected.
Per Rollins, the report informed Cassell that the property
was up to code as of October 19, 1972.
Generally, Rollins explained that if a house was built long
ago with stairs that did not comply with the applicable building
code, it would be a preexisting nonconformity. Some people refer

5 Appellant argued that Cassell purchased the property in
1970 and did the work that was completed and approved as of
July 10, 1970. Given that Cassell declared that she purchased
the property in 1972, and that Rollins said the October 19, 1972,
Report of Residential Building Record was generated when the
property was sold, the inference is that the previous owner did
the remedial work.

5
to this as being “grandfathered.” The code would not require
corrective action.
According to Rollins, the stairway did not comply with the
ADA requirements for wheelchair access to the commode. But he
noted that the ADA did not apply to the property because it was a
single-family home.
Mazza testified that the stairs never changed during the
time she rented the property. In her declaration, Cassell stated,
“The design, construction, and condition of the Property,
including but not limited to the bathroom steps and bathroom
light, was the same on September 3, 2014[,] as it was when I first
purchased the Property. I did not make, or cause to be made, any
structural alterations, expansions, improvements, or other
changes to the bathroom steps or bathroom light since I
purchased the Property.”
Separate Statement No. 20 stated: “[Appellant] does not
remember falling, how she fell, or what caused her to fall.”
Cassell cited excerpts from appellant’s deposition in support. She
testified: On the night of her fall, the light in the bathroom was
not working. She remembered “going up to the bathroom . . . and
having pain and waking up on the floor.” Also, she started down
the stairs and, to the best of her recollection, she fell. She could
not remember if she fell backwards, and she could not remember
slipping on anything immediately before her fall. At one point,
appellant broadly stated, “I don’t have a full remembrance.
Somehow, all of that is blocked out.” Defense counsel asked if she
remembered how many steps she took after using the bathroom
and before falling. She did not recall. He asked if she
remembered missing a step before her fall, and she replied, “I
was not aware of any of that.”

6
 Separate Statement No. 21 stated, “The only evidence
regarding causation is from Mazza’s testimony that her worn out
bath mat may have been the cause of [appellant’s] slip-and-fall
because the rubber traction on the bottom of the bath mat was
worn away.” Mazza testified that there was a bath mat in the
bathroom the night appellant fell, and that it was around the
base of the commode. She stated that the “mat was screwed on
the backside, and I threw it away after [appellant] fell because I
thought that may have had something to do with it.” Mazza
added that she was aware the rug did not have a “whole lot of
traction[.]”
Opposing Papers
Appellant opposed the motion and argued that it had to be
denied because there were triable issues as to whether Cassell
breached ordinary and statutory duties by failing to maintain the
stairs in a safe and habitable condition. According to appellant:
(1) Cassell had a duty to remedy the stairway under the implied
warranty of habitability and Civil Code sections 1941 and 1941.1 6
regardless of notice; 7 (2) the failure to maintain a building in a

6 “The lessor of a building intended for occupation of human
beings must, in the absence of an agreement to the contrary, put
it into a condition fit for occupation, and repair all subsequent
dilapidations thereof, which render it untenantable[.]” (Civ.
Code, § 1941.) A dwelling shall be deemed untenantable for
purposes of Civil Code section 1941 if it substantially lacks
“[f]loors, stairways, and railings maintained in good repair.”
(Civ. Code, § 1941.1, subd. (a)(8).)

7 In response to Separate Statement No. 15, appellant
additionally suggested that Cassell violated Civil Code section
1929. It provides that the “hirer of a thing must repair all
deteriorations or injuries thereto occasioned by his [or her] want

7
habitable condition is a nuisance and, over time, may ripen into
an unfair business practice; (3) Cassell had a duty of care because
the stairway was a dangerous condition that was neither open
nor obvious; (4) the stairway presented a dangerous condition
because it violated the applicable 2013 California Building Code;
and (5) there are disputed facts as to whether the stairway was
preexisting when Cassell purchased the property, and as to
whether the stairway constitutes a prior nonconforming use that
does not violate any applicable codes.
Appellant submitted a declaration from a civil engineer
named Brad Avrit (Avrit).
Avrit suggested that Cassell breached various statutory
duties. Based on his assertion that the property was built in
1923, he opined that “more likely than not [it] was required to be
constructed in conformance with the 1923 State Housing Act of
California.” He did not refer to a specific statute but provided a
copy of the act as an exhibit. Section 46 of that act pertained to
apartment houses and hotels and provided that “[e]very stairway
shall have at least one handrail[.]” Nothing in that act suggested
that a single-family home such as the property was subject to
Section 46. Avrit went on to opine that Cassell failed to take

of ordinary care.” (Civ. Code, § 1929.) Notably, Civil Code
section 1928 provides: “The hirer of a thing must use ordinary
care for its preservation in safety and in good condition.” This
statutory scheme pertained to appellant’s duty as the tenant of
the property, not to Cassell’s duty as the landlord. (Haupt v.
La Brea Heating & Air Conditioning (1955) 133 Cal.App.2d Supp.
784, 788 [“Absent an express covenant by a tenant to repair, his
sole obligation in the premises is that set forth in Civil Code
sections 1928 and 1929”].)

8
reasonable measures to ensure that the stairs complied with the
2013 California Building Code. He noted that section 3401.2 of
that code stated, “‘Buildings and structures, and parts thereof,
shall be maintained in a safe and sanitary condition. Devices or
safeguards which are required by this code shall be maintained
in conformance with the code edition under which installed. The
owner or the owner’s designated agent shall be responsible for
the maintenance of the buildings and structures.’” (Italics
omitted.) He added that Cassell “had the duty and responsibility
to eliminate the hazardous condition created by the variation in
stairs and lack of a handrail[.]”
Turning to the issue of whether the stairs were dangerous,
he stated, “I am of the opinion based on a reasonable degree of
engineering and scientific certainty, that the subject stairway
constituted a substantial misstep hazard at the time of
[appellant’s] incident and violated the applicable Building Code
that was in effect at the time the subject property was converted
from a garage to an apartment[.]” He noted that the risers were
larger than the allowed eight inches, the “differentiation of the
risers and treads is far greater than that acceptable with
differences as large as 2-1/2 [inches],” the “subject stairway
. . . lacked a required handrail,” and the stairway lacked “the
required width of 30” inches. The “combination of the violations
made the subject stairway unsafe and dangerous for tenants and
their visitors.” He added that the “lack of any handrail along the
subject stairway presented a substantial fall hazard for somebody
exercising reasonable care. Handrails provide a 3rd point of
contact to stairway users while ascending or descending, which
provides additional balance and stability. Moreover, a handrail
can offer help to recover one’s balance and prevent a stumble or

9
misstep from turning into a fall. In addition, a handrail placed
along the subject stairway would have served a dual purpose in
that it not only would have aided people going up and down the
stairs but also acted as a guide due to the fact that the subject
area light was inadequate at the time” of the fall.
Regarding causation, Avrit opined, “Had a handrail been in
place on . . . , [appellant’s] incident most likely would not have
occurred,” and that “the unsafe condition of [the] subject stairway
was a direct cause of [appellant’s] incident.”
In addition to relying on Avrit, appellant adverted to select
statements in the deposition of Rollins. Rollins testified: “My
experience indicates that [the] assembly, including the platform
to the toilet, was probably not permitted.” Appellant pointed to
evidence that Cassell installed a handrail for the stairs following
appellant’s incident.
In her opposition papers, appellant did not dispute
Separate Statement No. 20. She did, however, dispute Separate
Statement No. 21.
Reply Papers
In her reply, Cassell argued that appellant’s opposition
“improperly focus[ed] on matters absent from her operative
pleading” because she did not allege “claims regarding implied
warranty of habitability, nuisance, and unfair business practices.
She discusse[d] such claims in her Opposition for the first time.”
Cassell argued that it would be unfair for the trial court to
consider these arguments. She claimed that appellant’s
opposition improperly relied on authority involving tenants
because they do not apply to nontenants. In other words, Cassell
suggested that even if she owed a duty of care to Mazza, she did
not owe one to appellant. Also, Cassell argued that appellant

10
failed to put forth evidence disputing that the stairs were an open
and obvious dangerous condition.
Regarding negligence per se, Cassell asserted that Avrit’s
declaration lacked foundation and was speculative because even
though he claimed Cassell violated section 3401.2 of the 2013
Building Code, he failed to “1) state that said Building Code
section presents the proper standard [of care] for the evaluation
of liability in this case, and 2) . . . state whether said Building
Code section applies to the subject stairs which the evidence
shows [predated] it.” She maintained that there was no evidence
that she performed unpermitted construction of the stairway in
the bathroom. As for Civil Code sections 1941 and 1941.1, she
argued that they were inapplicable because appellant was
complaining about the design of the stairway, not the failure to
maintain them.
The Hearing
At the hearing, the trial court permitted appellant’s counsel
to read portions of appellant’s deposition that were not submitted
in connection with the parties’ papers. He quoted her as saying
that she slid on some slippers; she did not know if she was
wearing slippers; “‘the commode being at the top of the stairs was
concerning with no rails on it;’” and because she did not like
climbing the stairs to use the commode, “that was always just a
little precaution I had in my mind.” Appellant’s counsel then
proceeded to argue, “We know she’s in the restroom. We know
she’s on the steps. We know she slid. We know there’s no
railing.”
The Ruling
The trial court granted summary judgment. In its ruling, it
stated, “When opposition to summary judgment is based entirely

11
on inferences, such inferences must be ‘reasonably deducible from
the evidence and not such as are derived from speculation,
conjecture, imagination or guesswork.’ [Citation.] [Appellant]
has no idea how she fell. Thus, even if [Cassell] breached some
duty to maintain or repair the stairs (an issue the [trial court]
declines to rule on), and even if the stairs were not [an] open and
obvious [dangerous condition] (an issue the [trial court] also
declines to rule on), [Cassell] met her initial burden to show
[appellant] lacks evidence that the state of the stairs caused the
fall, and [appellant] failed to raise a triable issue of material
fact[.]”
Appellant’s Motion for New Trial
Appellant filed a motion for new trial and argued, in part,
that new evidence was material to her opposition to the motion
for summary judgment. 8
She offered a new declaration in which she stated: “After I
finished using the restroom, I began to make my way down the
steps of the toilet. As I was stepping down, I fell to the ground
and sustained physical injuries. The stairs felt awkward. It felt
as though there was [a] step missing or not in the right place. [¶]

8 Pursuant to Code of Civil Procedure section 657, paragraph
(4), a motion for new trial may be based on “[n]ewly discovered
evidence, material for the party making the application, which he
[or she] could not, with reasonable diligence, have discovered and
produced at trial.” “‘The essential elements which must be
established are (1) . . . the evidence is newly discovered;
(2) . . . reasonable diligence has been exercised in its discovery
and production; and (3) . . . the evidence is material to the
movant’s case.’ [Citation.]” (Sherman v. Kinetic Concepts, Inc.
(1998) 67 Cal.App.4th 1152, 1161.)

12
I fell because of the uneven placement of the stairs and because
there was no railing to help me down from the commode. Had
the stairs been designed to code with the proper raises and [a]
. . . proper railing[,] I feel that I would not have mis-stepped and
would not have fallen.”
Avrit submitted a new declaration that was based, in part,
on appellant’s new declaration. He opined that a combination of
code violations made the stairs unsafe and were the cause of
appellant’s fall.
Cassell opposed the motion and filed objections to
appellant’s evidence.
The trial court denied the new trial motion without ruling
on Cassell’s evidentiary objections. However, in part, the trial
court determined that Avrit’s new declaration could not be
considered because Kaney failed to demonstrate that it contained
facts that she did not know and could not have reasonably known
at the time she was opposing Cassell’s motion for summary
judgment. 9
This appeal followed. 10

9 To the degree Avrit’s new declaration relied on Kaney’s new
declaration, the trial court’s reasoning applied with equal
measure to Kaney’s new declaration. Regardless, neither
declaration factors into our analysis on appeal because (1) they
were not submitted with the opposition to the motion for
summary judgment and (2) the facts contained within them were
readily available to Kaney when she filed her opposition to the
motion for summary judgment and, as a result, could not be
considered even if we were to review the denial of the motion for
new trial.

10 We granted the application of the Association of Southern
California Defense Counsel (ASCDC) to file an amicus brief.

13
 DISCUSSION
I. Summary Judgment Principles.
A “motion for summary judgment shall be granted 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
secure summary judgment, a moving defendant may . . . disprove
at least one essential element of the plaintiff's cause of action
[citations] or show that an element of the cause of action cannot
be established.” (Sanchez v. Swinerton & Walberg Co. (1996) 47
Cal.App.4th 1461, 1465; Leslie G. v. Perry & Associates (1996) 43
Cal.App.4th 472, 482 (Leslie G.) [“a moving defendant need not
support [her] motion with affirmative evidence negating an
essential element of the responding party’s case”].) A defendant
shows that an element of a cause of action cannot be established
by submitting evidence that the plaintiff does not possess, and
cannot reasonably obtain, evidence supporting the element.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)
Thus, a moving defendant may rely on factually devoid discovery
responses to shift the burden of proof. Once the burden shifts,
the plaintiff must set forth the specific facts which prove the
existence of a triable issue of material fact. (Chaknova v. Wilbur-
Ellis Co. (1999) 69 Cal.App.4th 962, 975.)

ASCDC urges us “to issue a published opinion confirming that
the so-called amnesia presumption—which presumed that an
injured party who could not remember the accident at issue acted
with due care—was abolished in 1967 with the adoption of the
Evidence Code.” The abrogated amnesia presumption is not
relevant to our discussion, and we decline to discuss it for that
reason.

14
 “‘[C]ausation . . . is ordinarily a question of fact which
cannot be resolved by summary judgment. The issue of causation
may be decided as a question of law only if, under undisputed
facts, there is no room for a reasonable difference of opinion.
[Citation.]’ [Citation.]” (Kurinji v. Hanna & Morton (1997) 55
Cal.App.4th 853, 864.) Causation must be established by
nonspeculative evidence. (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 774; Montague v. AMN Healthcare, Inc. (2014)
223 Cal.App.4th 1515, 1525 [“speculative inferences do not raise
a triable issue of fact”].)
II. Standard of Review.
Summary judgment is subject to de novo review. To
analyze the issues, “we follow the traditional three-step analysis.
‘We first identify the issues framed by the pleadings, since it is
these allegations to which the motion must respond. Secondly,
we determine whether the moving party has established facts
which negate the opponents’ claim and justify a judgment in the
movant’s favor. Finally, if the summary judgment motion prima
facie justifies a judgment, we determine whether the opposition
demonstrates the existence of a triable, material factual issue.
[Citation.]’ [Citation.]” (Shamsian v. Atlantic Richfield Co.
(2003) 107 Cal.App.4th 967, 975.)
In “reviewing the trial court’s decision to grant summary
judgment, we liberally construe the evidence in support of the
party opposing summary judgment and resolve all doubts about
the evidence in that party’s favor. [Citation.]” (Caliber Paving
Co., Inc. v. Rexford Industrial Realty Management, Inc. (2020) 54
Cal.App.5th 175, 190.) “[W]e must draw from the evidence all
reasonable inferences in the light most favorable to the party
opposing summary judgment. [Citation.]” (Ibid.)

15
III. The Issues Material to this Appeal.
As we shall discuss, there are triable issues as to ordinary
negligence. Appellant’s theories based on negligence per se, 11
implied warranty of habitability, nuisance, and unfair business
practices are moot. 12

11 The doctrine of negligence per se establishes that a plaintiff
can rely on a statute to prove the standard of care. A
presumption of negligence arises from the violation of a statute
which was enacted to protect the class of persons of which the
plaintiff is a member against the type of harm that the plaintiff
suffered. (David v. Hernandez (2014) 226 Cal.App.4th 578, 584;
Evid. Code, § 669, subd. (a)(1) [the failure of a person to exercise
due care is presumed if he or she violated a statute, ordinance or
regulation of a public entity].)

12 Respondent argues that appellant “cannot raise a
negligence per se argument as to statutes identified for the first
time in her opposition to [the] motion for summary judgment.
Appellant cannot keep moving the goal post. The tactic of
changing one’s story to avoid summary judgment . . . is
improper.” We note that she objected to appellant’s new claims
based on the implied warranty of habitability, nuisance, and
unfair business practices, but there was no similar objection to
claims based on the Building Code, the Civil Code or the State
Housing Act of California. As to those last three statutory based
claims, Cassell briefed them in her reply papers. Though these
issues are moot, it bears noting that respondent cannot be heard
to complain that appellant raised new theories in her opposition
to the summary judgment motion because the reply brief
addressed appellant’s new theories on the merits without raising
an objection. (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d
1291, 1302 [by briefing the merits and not objecting, defendant
waived objection to plaintiff asserting a new cause of action in
opposition to summary judgment].)

16
IV. Ordinary Negligence Principles.
The elements of a cause of action for premises liability are
the same as those for negligence. A plaintiff must prove a legal
duty to use care, breach of that legal duty, and a breach that is a
proximate cause of injury. (Jones v. Awad (2019) 39 Cal.App.5th
1200, 1207.)
“Everyone is responsible . . . for an injury occasioned to
another by his or her want of ordinary care or skill in the
management of his or her property . . . , except so far as the latter
has, willfully or by want of ordinary care, brought the injury upon
himself or herself.” (Civ. Code, § 1714.) This statute establishes
that “individuals owe a duty of care to avoid injury to others
unless public policy mandates an exception. [Citations.]”
(Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1133.) “A landlord
owes a duty of care to a tenant to provide and maintain safe
conditions on the leased premises. [Citation.] This duty of care
also extends to the general public.” (Id. at p. 1134.)
V. Duty and Breach.
The trial court did not decide whether Cassell owed
appellant an ordinary duty of care or breached that duty.
Nonetheless, respondent asks us to affirm summary judgment on
the ground that there was no breach of an ordinary duty of care. 13

13 “Before a reviewing court affirms an order granting
summary judgment or summary adjudication on a ground not
relied upon by the trial court, the reviewing court shall afford the
parties an opportunity to present their views on the issue by
submitting supplemental briefs. The supplemental briefs may
include an argument that additional evidence relating to that
ground exists, but the party has not had an adequate opportunity
to present the evidence or to conduct discovery on the issue. The
court may reverse or remand based upon the supplemental briefs

17
She argues that the stairs were an open and obvious dangerous
condition; that she did not have notice that there was a
dangerous condition (even though it was open and obvious); and
that if she owed a duty, it was only to Mazza. As discussed
below, we reject these arguments and conclude that there are
triable issues as to duty and breach. Importantly, respondent
never argues that the stairs were safe, and her duty arguments
rest only on these other issues. 14
A. Open and Obvious Dangerous Condition.
Whether a duty should be imposed on a defendant depends
on factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108,
112–113.) The factors include foreseeability of harm plus the
burden on the defendant and the consequences to the community
of imposing a duty. Foreseeability is a question of law, and it is
“typically absent when a dangerous condition is open and
obvious. [Citation.]” (Jacobs v. Coldwell Banker Residential
Brokerage Co. (2017) 14 Cal.App.5th 438, 446–447 (Jacobs).)
“‘Generally, if a danger is so obvious that a person could
reasonably be expected to see it, the condition itself serves as a
warning, and the landowner is under no further duty to remedy

to allow the parties to present additional evidence or to conduct
discovery on the issue. If the court fails to allow supplemental
briefs, a rehearing shall be ordered upon timely petition of a
party.” (Code Civ. Proc., § 437c, subd. (m)(2).) Because we are
not affirming, this statutory provision is inapplicable.

14 Appellant submitted pictures of the stairs in conjunction
with her opposition to the motion for summary judgment. The
pictures suggest that the stairs are steep and pose a risk of
people falling. Ultimately, of course, this will be an issue for the
trier of fact to decide.

18
or warn of the condition.’ [Citation.] In that situation, owners
and possessors of land are entitled to assume others will ‘perceive
the obvious’ and take action to avoid the dangerous condition.
[Citation.]” (Id. at p. 447.)
“An exception to this general rule exists when ‘it is
foreseeable that the danger may cause injury despite the fact
that it is obvious (e.g., when necessity requires persons to
encounter it).’ [Citation.] In other words, while the obviousness
of the condition and its dangerousness may obviate the
landowner’s duty to remedy or warn of the condition in some
situations, such obviousness will not negate a duty of care when
it is foreseeable that, because of necessity or other circumstances,
a person may choose to encounter the condition.” (Jacobs, supra,
14 Cal.App.5th at p. 447.)
Respondent argues: “Here, [a]ppellant knew about the
existence, configuration, and the condition of the steps and
stairway, and she was familiar with using these steps and
stairway, as she previously visited the premises multiple times,
staying overnight, often for extended periods of time of ten days
to two weeks, prior to the incident. . . . Appellant used the
bathroom during these visits and never had previous issues with
these steps. . . . Appellant had used the bathroom up to five
times during that specific visit in September 2014 prior to the
incident. . . . This bathroom was the only one on the
property. . . . Appellant did not dispute any of these
facts. . . . [Cassell] also submitted photographs in support of this
argument. . . . In opposing [Cassell’s] motion for summary
judgment, [a]ppellant did not present any evidence to the trial
court refuting this open and obvious argument.”

19
 This argument fails because respondent never wrestles
with the exception to the rule. She does not explain why the
alleged open and obvious danger of the stairs is material given
that it is foreseeable that occupants and visitors would, by
necessity, use the stairs to access the lone bathroom. The
foreseeability of harm remains a triable issue.
B. Notice.
In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205–
1206, the court explained that an owner cannot be liable for a
dangerous condition unless she had actual or constructive
knowledge of it, or she could have discovered it by the exercise of
ordinary care and should have realized that it involved an
unreasonable risk to invitees. (Ibid.) “The plaintiff need not
show actual knowledge where evidence suggests that the
dangerous condition was present for a sufficient period of time to
charge the owner with constructive knowledge.” (Id. at p. 1206.)
“Whether a dangerous condition has existed long enough for a
reasonably prudent person to have discovered it is a question of
fact for the jury, and the cases do not impose exact time
limitations.” (Id. at p. 1207.)
Respondent argues: “Here, [Cassell] owed no duty to
remedy any condition of the bathroom steps or stairway because
she was never given any notice by anyone that the steps were
dangerous or needed repair, or that were any previous incidents
related to the steps. . . . In fact, there were no previous incidents
involving the bathroom steps. . . . The tenant even testified that
she liked the steps—she thought they were cute. . . . Injury
therefore was not foreseeable.”
We cannot accept this argument. Avrit explained that,
inter alia, the absence of handrails made the stairs a dangerous

20
condition. From the record, it appears that the stairs may have
been in the current condition since at least 1972. Respondent
herself argues that the dangerous condition was open and
obvious. It is a question of fact for the jury whether Cassell had
adequate time to discover the dangerous condition of the stairs
and realize that it posed an unreasonable risk.
C. Duty to Appellant.
In suggesting that Cassell could have owed a duty only to
Mazza, respondent cites Garcia v. Holt (2015) 242 Cal.App.4th
600 (Garcia) for the proposition that landlords have heightened
duties that they owe to tenants but not to nontenants. She
provides no explication of Garcia, and we easily conclude that it
is not the advertised checkmate.
Garcia explained that “[p]ublic policy precludes landlord
liability for a dangerous condition on the premises which came
into existence after possession has passed to a tenant. [Citation.]
This is based on the principle that the landlord has surrendered
possession and control of the land to the tenant and has no right
even to enter without permission. [Citation.]” (Garcia, supra,
242 Cal.App.4th at p. 604.) Thus, before liability may be imposed
on a landlord for a third party’s injury due to a dangerous
condition, the third party must show that the landlord had actual
knowledge of the dangerous condition, plus the right and ability
to cure the condition. (Id. at pp. 604–605.) In this case, there is
no suggestion that the dangerous condition of the stairs came
into existence after Mazza moved in or that Cassell lacked the
right and ability to cure the stairs. Notice and Cassell’s ability to
cure the stairs are triable issues.

21
VI. Causation.
The trial court concluded that appellant’s inability to
remember the fall meant that she lacked nonspeculative evidence
of causation. This was error. A slip-and-fall plaintiff need not
remember her fall to recover damages provided the evidence
gives rise to a reasonable and probable inference that the
defendant’s negligence was a substantial contributing factor.
(Leslie G., supra, 43 Cal.App.4th at p. 483; Rosencrans v. Dover
Images, Ltd. (2011) 192 Cal.App.4th 1072, 1087.) This case
involves such an inference.
A. The Type of Evidence Required.
“Where the complexity of [a] causation issue is beyond
common experience, expert testimony is required to [prove]
causation. [Citations.]” (Garbell v. Conejo Hardwoods, Inc.
(2011) 193 Cal.App.4th 1563, 1569.) In contrast, if causation
presents a question that is within the common knowledge of
persons of ordinary education, then expert testimony is not
required. (McNeil v. Yellow Cab Co. (1978) 85 Cal.App.3d 116,
118.) Here, whether the absence of a handrail, the size of the
risers, or a combination of both caused appellant to fall was
within common knowledge. Thus, even if Avrit’s declaration was
necessary to raise a triable issue as to whether the stairs were a
dangerous condition (an issue we do not decide), it was not
necessary to establish causation. 15

15 Respondent takes aim at Avrit’s opinion on causation,
suggesting that it lacked a reasoned explanation. (Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117 [“an expert’s opinion based on assumptions of fact
without evidentiary support [citation], or on speculative or
conjectural factors [citation], has no evidentiary value”].) This

22
 B. Analysis.
Case law permits an inference that the condition of the
stairs 16 caused appellant’s fall. 17
In Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d
720 (Burdette) the plaintiff leased an apartment in a building
that was situated at the summit of a steep hill. (Id. at p. 723.)
To gain entry to her apartment from the public sidewalk, she had
to climb a flight of stairs, make a right-angle turn, traverse a
private sidewalk that followed the edge of the hill for 30 or 40
feet, and, finally, climb a flight of four steps to a platform
immediately outside her front door. No part of either sets of

issue is moot because causation in this case can be resolved
through common knowledge.

16 For purposes of this appeal, there is no dispute that the
stairs were dangerous. Respondent does not attack Avrit’s
opinion regarding the safety of the stairs, nor does she state that
the stairs were safe, inter alia, without a handrail. Once again,
her defenses to ordinary negligence were only that she had no
duty of care because the dangerous condition was open and
obvious, she had no notice of the condition, and she did not owe a
duty to the invitees of her tenant. In our analysis, we accept
Avrit’s unchallenged opinion on the safety of the stairs. But we
express no opinion as to its admissibility on remand, or as to
whether the safety of the stairs required expert opinion or was
within the common experience of lay jurors. (See Westbrook v.
Cal. (1985) 173 Cal.App.3d 1203, 1210 [holding that expert
opinion regarding the danger posed by a condition was
inadmissible because it was within common experience].)

17 The parties debate whether causation is established by the
doctrine of res ipsa loquitur. This issue does not require
resolution on appeal.

23
stairs, the private sidewalk, or the platform were enclosed by
protective guard rails. (Ibid.)
Accompanied by a friend, the plaintiff was preparing to
leave her apartment. “She held the door open for her friend and
paused to close the door. The friend had almost reached the top
of the flight of . . . steps leading to the public sidewalk when she
heard plaintiff’s cries, turned, and saw plaintiff lying upon the
public sidewalk.” (Burdette, supra, 52 Cal.2d at p. 723.)
Appellant sued the owner of the apartment building and the
contractor (defendants) who built it. The trial court decided in
favor of the defendants and against the plaintiff on her claim for
personal injury. (Id. at p. 722.)
Our Supreme Court reversed the judgment. It concluded
that the “only reasonable inference is that plaintiff lost her
footing and then tumbled down the steep embankment to the
public sidewalk below and that a guard rail would have
prevented her tumbling to the public sidewalk whether or not it
would have prevented her initial loss of footing.” (Burdette,
supra, 52 Cal.2d at p. 723.) The “crucial issue, therefore, [was]
whether or not the accident occurred at a place where defendants
were under a duty to provide a guard rail.” (Ibid.) “Since it
appear[ed] as a matter of law, however, that defendants were
negligent in failing to provide a railing for the platform, the
stairway, and the private sidewalk, that plaintiff fell at one of
those three places, and that a railing would have prevented her
tumbling to the public sidewalk, the trial court’s finding that
defendants’ negligence was not the proximate cause of her
injuries cannot be sustained.” (Id. at p. 726.)
In Schumann v. C. R. Reichel Engineering Co. (1960) 187
Cal.App.2d 309 (Schumann), plaintiff lived as a tenant on the

24
second floor of a building. Outside her kitchen and bedroom
windows there was a wooden platform with open spaces in its
flooring and a 32½ tall railing. Also, the platform had a hole in it
for a ladder system that went from the ground to the roof and
provided the only roof access. Plaintiff regularly reached through
the kitchen window to use a clothesline on a pulley system.
Photographs offered into evidence established that she could go
through the kitchen window and get out onto the platform. One
day, plaintiff washed clothes and hung them on the clothesline.
Later, she washed dishes. She could not remember anything
after that until she found herself on her knees in the yard below.
(Id. at pp. 312–313.)
The Schumann plaintiff sued for personal injury, alleging
that the defendants should have made the platform safe for her
to use. Hospital records produced in discovery showed that she
had complained of blackouts or fainting spells prior to the
incident. The matter went to trial and the trial court granted a
directed verdict for the defendants. (Schumann, supra, 187
Cal.App.2d at pp. 312–314.)
The defendants urged affirmance on the theory that
plaintiff failed to prove that the platform and ladder system
caused her injuries, and that the jury could have found in favor of
plaintiff only based on conjecture. (Schumann, supra, 187
Cal.App.2d at p. 317.) The court concluded that “a crucial
question arises as to whether the presence of a 42-inch top rail
would have prevented [plaintiff] from falling over the rail to the
yard below or whether the presence of a mid-rail would have
prevented her from rolling off the platform to the yard below. It
is conceivable that the jury could draw a reasonable inference
that if appellant was out on the platform to retrieve her clothes

25
from the line that she then suffered a blackout or fainting spell
which either caused her to fall over the rail to the yard below or
that she fell onto the platform and rolled off in the space between
the top rail and the surface of the platform; that the presence of a
42-inch top rail or the presence of the mid-rail as required by the
safety orders would have prevented this fall. . . . [This]
. . . presents an issue of fact for the court or jury to determine.”
(Ibid.) The court reversed the judgment.
Burdette and Schumann are instructive. Though the
plaintiffs in those cases could not remember their falls, the
circumstantial evidence led to reasonable and probable inferences
that each fell from a height due to the absence of adequate
barriers that would have restrained them. Here, a trier of fact
could draw a reasonable and probable inference in appellant’s
favor that she fell while on the stairs based on her testimony that
she remembers being on the stairs and waking up on the floor in
pain. Further, the evidence would permit a trier of fact to draw a
reasonable and probable inference that the dangerous condition
of the stairs was a substantial factor in the fall. Specifically, a
trier of fact could conclude that appellant would not have fallen
if, among other things, she had a handrail to give her balance or
give her something to grab onto when stumbling.
In respondent’s view, Burdette and Schumann are
distinguishable because they involved the absence of barriers
that would have blocked a fall. We, on the other hand, view these
differences as ones of degree, not kind. It is true that a handrail
(or safely sized risers) would not have blocked appellant’s fall, but
a trier of fact could still reasonably infer they would have
prevented the fall. Even though risers and handrails do not

26
provide as much absolute protection as a railing next to a drop
off, they still provide protection.
Respondent argues that an inference that the stairs caused
appellant to fall is speculative. But it is more reasonable and
probable inference that the unsafe factors identified by Avrit,
including the lack of a handrail, were a substantial factor in
appellant’s fall than it is to infer that appellant would have fallen
regardless of the condition of the stairs. (Leslie G., supra, 43
Cal.App.4th at p. 483 [to defeat summary judgment, a plaintiff
must show that the inferences favorable to her are more
reasonable or probable than those against her]; Brautigam v.
Brooks (1964) 227 Cal.App.2d 547, 556 [an inference must be
drawn from facts, and it cannot be based on mere possibility].) It
is within common knowledge that safe riser heights and
handrails help prevent stumbles, and handrails can prevent
stumbles from becoming falls.
Respondent argues that it is just as likely that appellant’s
fall was caused by something other than the defects identified by
Avrit. First, respondent suggests that appellant may have
slipped on the bath mat around the base of the commode. But
appellant testified that she was on the stairs and then woke up
on the floor. There is no indication in her statement that she
slipped while standing at the commode where the bath mat was
located. It is not reasonable and probable to infer that appellant
slipped on the bath mat given the absence of any evidence that it
was located on the stairs. Second, respondent adverts to
appellant’s testimony that she may have slid on slippers.
Notably, appellant testified that she did not know if she was
wearing slippers, so her testimony on the point was equivocal at
best. In any event, respondent ignores Avrit’s explanation for

27
how handrails prevent stumbles and falls. In our view, a
reasonable trier of fact could infer that even if appellant had slid
on slippers, a handrail would have prevented her from falling.
McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th
1098 (McGonnell) does not trigger a shift in our thinking. In that
case, the threshold issue whether the decedent had been exposed
to the defendant’s asbestos. (Id. at p. 1103.) In moving for
summary judgment, the defendant relied upon the decedent’s
deposition testimony establishing that he had no knowledge of
having had any exposure. The court concluded that this evidence
showed that the wrongful death plaintiffs could not prove the
causation element of their claim. (Id. at p. 1104.) Simply put,
McGonnell and appellant’s case are not on equal footing. Here,
there is evidence appellant was on dangerous stairs and fell. In
McGonnell, there was no evidence that the plaintiff was exposed
to the defendant’s asbestos.
Respondent pushes back on this analysis and cites a trio of
cases. Darrach v. Trustees of San Francisco County Medical
Asso. (1953) 121 Cal.App.2d 362, 366 stated, “‘No inference of
negligence arises from the mere proof of a fall upon the stairway.
“In order to impose liability on the owner it must be shown that a
dangerous condition existed, and that the defendant knew or
should have known of it. While under some circumstances,
negligence may be inferred from the existence of a dangerous
condition, the burden rests upon the plaintiff to show the
existence of a dangerous condition, and that defendant knew or
should have known of it.”’ [Citation.]” (Ibid.) Harpke v.
Lankershim Estates (1951) 103 Cal.App.2d 143, 145 is an echo of
the same rule of law, and Brown v. Poway Unified School Dist.
(1993) 4 Cal.4th 820, 826 notes that the common wisdom from

28
many jurisdictions declares “as a general rule that res ipsa
loquitur does not apply to slip and fall cases.” None of these
cases are pertinent to our analysis because appellant offered
evidence that the stairs were a dangerous condition. She does
not suggest that her fall, by itself, proved that there was a
dangerous condition. 18
DISPOSITION
Summary judgment is reversed. Appellant shall recover
her costs on appeal.
CERTIFIED FOR PUBLICATION.

______________________, J.
ASHMANN-GERST
We concur:

_________________________, P. J.
LUI

________________________, J.
CHAVEZ

18 All other issues are moot.

29