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HENRY H. LIEM Wu _
LAW OFFICES O
a Forth First Steet
San Jose, California 9.
(408) 283-0183 fax (408). 393. 0123
Attorney for Plaintiff
H. LIEM
SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA - UNLIMITED
JENNY PHAN,
Plaintiff,
vs.
G&K MANAGEMENT CO. INC., ET
AL.,
Defendants.
1. INTRODUCTION
This is a premises liability case.
Plaintiff, Jenny Phan was and still is a tenant of Santa Teresa Apartments in
San Jose owned and operated by G&K Management Co., Inc..
Plaintiff Jenny Phan had an assigned tenant parking space which was #154.
On February 4, 2014 on a sunny day at about 1:00 p.m. plaintiff was walking,
to her car, adjacent to the driver’s side of her car was space #153 which is an|
asphalt parking space. Immediately in front of this parking space was a
Case No.: 16CV290785
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION
TO MOTION FOR SUMMARY
GE 0 THE
ALTERNATIVE SUMMARY
ADJUDICATION
Date: April 17, 2018
Time: 9:00 a.m.
Location: Dept. 19
Judge:
Date Siction Filed: 6/28/2016
Trial Date: 6/18/2018
Page 1
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR
IN THE ALTERNATIVE SUMMARY ADJUDICATION26
28
wheel stop. For several months both prior to and several months subsequent
to her fall she had noticed accumulative automotive lubricant in that space
and also some “grease” or accumulated automobile lubricant on the wheel
stop, in front of space #153.
On that day she stepped onto this wheel step foot, and as she started to step
down with her right foot, her foot slipped on some grease or accumulated
automotive liquid spillage and then her right foot slipped onto the
accumulated automotive spillage in the asphalt parking space and she fell
forward onto the asphalt. She twisted her right ankle as a result of the fall.
She could not get up, neighbor came and saw her. The neighbor left and then|
returned with an ice bag so she could put it on her right ankle. She called her
boyfriend, Mr. Jerry Chen, who came to her parking space and he took her to
the hospital.
Mr. Chen also noticed for several months both before and after the
accident that there was a substantial amount of accumulated automotive
lubricant in space #153 and also some on the wheel stop of parking #153. He
took her for emergency evaluation to Kaiser Hospital. After her discharge
from the emergency room she returned to her apartment. Mr. Jerry Chen
took a photo of space #153 within 2 or 3 days of the accident which
substantially depicted the condition of the automotive spillage in and around
space #153 as he witnessed when he went to where she was injured in order
to take her to Kaiser on the day of the accident.
A dangerous condition existed at the time of plaintiff's slip and fall
- POINT AND AUTHORITIES
Owner of property must keep the floors in a safe condition for people who
pass over them Sanders v. MacFardenicisld aCandies (1953) 119CalAp2d497,501
Page 2
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR
IN THE ALTERNATIVE SUMMARY ADJUDICATIONCivil Code Section 1714 (a) provides in part “everyone is responsible, not
only for the result of his willful acts, but also for an injury occasional to another by
his want of ordinary case or skill in the management of his property or person...”
Although liability might easily be found where the landowner has actual
knowledge of the dangerous condition the landowner’s lack of knowledge of the
dangerous condition is not a defense. He has an affirmative duty to exercise
ordinary care to keep the premises in a reasonably safe condition, and they must
inspect them or take other proper means to ascertain their condition. And if, in the
exercise of reasonable care, he would have discovered the dangerous condition, he
is liable Portills v Alassa, 27, Cal AP 4" 1133, 32 Cal Rpts 2d 755 at 758 (1996).
San Jose Municipal Code Section C3.1 states that the Building Code of the
County of Santa Clara is the California Building Code, Section 1.1-2 and 1.1.3 of
the California Building Code states that the purpose of the building code is “to
provide minimum standards to safeguard life, limb, health, property and public
welfare by regulation and controlling in maintenance of building
Section 3401 of the California Bldg. Code states “All buildings and
structures, both existing and new, and all parts thereof, shall be maintained
in a safe and sanitary condition....
The owner or the owner’s designated agent shall be responsible for the
maintenance of buildings and structures.”
California Building Code Section 1001.1 et seq. states every building or
portion thereof shall be provided with a means of egress., A means of egress is an
exit system that provides a continuance, unobstructed and undiminished path of
exit travel from any occupied point in a building to a public way.
California Fire Code Section 1003.4 states that the means of egress shall
have a slip resistant surface. Defendants contend that these was no dangerous
condition for months before and on the day of the accident.
Page 3
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR
IN THE ALTERNATIVE SUMMARY ADJUDICATIONHow do they explain the condition of space #153 and the Declaration of the
plaintiff and Mr. Jerry Chen. More importantly, it is submitted that if there is a
daily inspection of the parking area and there was no observation of the
accumulated automotive spillage in space number 153 and some on the wheel stop
of 153, there is negligence.
The Safety Administrator, Mr. Ray Roberts of the defendants states that one
of his main duties is to do everything possible to protect tenants from injuries
(Depo Ray Roberts page 26, line 6-10)
He also testified that the defendants have a duty to inspect and prevent
tenants from slipping on oil, grease or foreign matter in the parking area (Depo of
Ray Roberts @ page 26, line 6 to 10)
He also stated that spilled vehicle lubricants pose a slip and fall hazard to
people traveling the particular area that the substance resides (Depo of Ray Roberts|
@ page 58, line 24 and page 59, line 8)
More importantly, asphalt that has been exposed to motor oil deposited on it
would create a possible hazard (Depo of Ray Roberts age 61, line 18 to 25) as
the physical effects of motor oil on asphalt is that it makes it slippery.
It is submitted that the defendants had to have actual knowledge that there
was a danger of a person injuring themselves if they slipped on the automotive
spillage. As it was there several months prior to the accident. This is constructive
notice (Declaration of Jerry Chan and Jenny Phan)
Additionally, as it existed for several months pursuant to the Declaration of
the plaintiff and Jerry Chen before the accident, they certainly had constructive
notice.
The California Supreme Court has held that a landlord owes a duty of care t
its tenants to take reasonable steps to secure the common areas under its control
Ann M v. Pacific Plaza Shopping Center (1993) 6 Cal 4" 666.675, 25 Cal Rpts 2d
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR
IN THE ALTERNATIVE SUMMARY ADJUDICATION26
27
28
137. Defendants are contending in their Memorandum of Point and Authorities that
plaintiff tripped. She did not trip. She slipped.
In Ortega v. K-Mart Corp (2001) 26 Cal 4" 1200, that Court held that
evidence of the owner’s failure to inspect and remedy a dangerous condition that
was on the floor long enough to give the owners time to discover it and remedy is
negligence (Id. @ 1203)
The photo of space 153 taken 2 or 3 days after the accident by Mr. Jerry
Chen and attached to his declaration as Exhibit A surely is evidence of a
substantial amount of vehicle spillage that should have been observed and
remedied as there are the declaration by both plaintiff and Jerry Chen that it existe
for several months before the accident.
CCP Section 437 (c) states that the Motion for Summary Judgment must be
denied if there is any evidence of a triable issue of fact.
In this case there are several triable issues of facts, viz
a. Was there accumulated automotive spillage on space 153 and the wheel
stop. Plaintiff submits that there is based most importantly on the photo
taken 2 or 3 days after the plaintiff's accident and the Declaration of Mr.
Jerry Chen who took the photograph and his own declaration.
b. Whether the defendants violated its own safety standards stated in the
testimony of Mr. Ray Roberts.
c. Did the defendants violate San Jose City ordinance and the California
Building Code. Plaintiff contends that the accumulated automotive
spillage was visible as depicted in the photo taken by Mr. Chen.
3. CONCLUSION
Plaintiff respectfully submits that for reasons stated that the defendants are
not entitled to a Summary Judgment because there are materials triable issue of
facts.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR
IN THE ALTERNATIVE SUMMARY ADJUDICATIONoy
28
DATED: 3 f: a ho SG Woe used
’ Law Offices of Henry H. Liem) By Marc J.
Bourget, Attorney for Plaintiff,
Jenny Phan
ce Page 6 ~ ee
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR
IN THE ALTERNATIVE SUMMARY ADJUDICATION
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HENRY H. LIEM Wu _ LAW OFFICES O a Forth First Steet San Jose, California 9. (408) 283-0183 fax (408). 393. 0123 Attorney for Plaintiff H. LIEM SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JENNY PHAN, Plaintiff, vs. G&K MANAGEMENT CO. INC., ET AL., Defendants. 1. INTRODUCTION This is a premises liability case. Plaintiff, Jenny Phan was and still is a tenant of Santa Teresa Apartments in San Jose owned and operated by G&K Management Co., Inc.. Plaintiff Jenny Phan had an assigned tenant parking space which was #154. On February 4, 2014 on a sunny day at about 1:00 p.m. plaintiff was walking, to her car, adjacent to the driver’s side of her car was space #153 which is an| asphalt parking space. Immediately in front of this parking space was a Case No.: 16CV290785 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY GE 0 THE ALTERNATIVE SUMMARY ADJUDICATION Date: April 17, 2018 Time: 9:00 a.m. Location: Dept. 19 Judge: Date Siction Filed: 6/28/2016 Trial Date: 6/18/2018 Page 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION26 28 wheel stop. For several months both prior to and several months subsequent to her fall she had noticed accumulative automotive lubricant in that space and also some “grease” or accumulated automobile lubricant on the wheel stop, in front of space #153. On that day she stepped onto this wheel step foot, and as she started to step down with her right foot, her foot slipped on some grease or accumulated automotive liquid spillage and then her right foot slipped onto the accumulated automotive spillage in the asphalt parking space and she fell forward onto the asphalt. She twisted her right ankle as a result of the fall. She could not get up, neighbor came and saw her. The neighbor left and then| returned with an ice bag so she could put it on her right ankle. She called her boyfriend, Mr. Jerry Chen, who came to her parking space and he took her to the hospital. Mr. Chen also noticed for several months both before and after the accident that there was a substantial amount of accumulated automotive lubricant in space #153 and also some on the wheel stop of parking #153. He took her for emergency evaluation to Kaiser Hospital. After her discharge from the emergency room she returned to her apartment. Mr. Jerry Chen took a photo of space #153 within 2 or 3 days of the accident which substantially depicted the condition of the automotive spillage in and around space #153 as he witnessed when he went to where she was injured in order to take her to Kaiser on the day of the accident. A dangerous condition existed at the time of plaintiff's slip and fall - POINT AND AUTHORITIES Owner of property must keep the floors in a safe condition for people who pass over them Sanders v. MacFardenicisld aCandies (1953) 119CalAp2d497,501 Page 2 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATIONCivil Code Section 1714 (a) provides in part “everyone is responsible, not only for the result of his willful acts, but also for an injury occasional to another by his want of ordinary case or skill in the management of his property or person...” Although liability might easily be found where the landowner has actual knowledge of the dangerous condition the landowner’s lack of knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and they must inspect them or take other proper means to ascertain their condition. And if, in the exercise of reasonable care, he would have discovered the dangerous condition, he is liable Portills v Alassa, 27, Cal AP 4" 1133, 32 Cal Rpts 2d 755 at 758 (1996). San Jose Municipal Code Section C3.1 states that the Building Code of the County of Santa Clara is the California Building Code, Section 1.1-2 and 1.1.3 of the California Building Code states that the purpose of the building code is “to provide minimum standards to safeguard life, limb, health, property and public welfare by regulation and controlling in maintenance of building Section 3401 of the California Bldg. Code states “All buildings and structures, both existing and new, and all parts thereof, shall be maintained in a safe and sanitary condition.... The owner or the owner’s designated agent shall be responsible for the maintenance of buildings and structures.” California Building Code Section 1001.1 et seq. states every building or portion thereof shall be provided with a means of egress., A means of egress is an exit system that provides a continuance, unobstructed and undiminished path of exit travel from any occupied point in a building to a public way. California Fire Code Section 1003.4 states that the means of egress shall have a slip resistant surface. Defendants contend that these was no dangerous condition for months before and on the day of the accident. Page 3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATIONHow do they explain the condition of space #153 and the Declaration of the plaintiff and Mr. Jerry Chen. More importantly, it is submitted that if there is a daily inspection of the parking area and there was no observation of the accumulated automotive spillage in space number 153 and some on the wheel stop of 153, there is negligence. The Safety Administrator, Mr. Ray Roberts of the defendants states that one of his main duties is to do everything possible to protect tenants from injuries (Depo Ray Roberts page 26, line 6-10) He also testified that the defendants have a duty to inspect and prevent tenants from slipping on oil, grease or foreign matter in the parking area (Depo of Ray Roberts @ page 26, line 6 to 10) He also stated that spilled vehicle lubricants pose a slip and fall hazard to people traveling the particular area that the substance resides (Depo of Ray Roberts| @ page 58, line 24 and page 59, line 8) More importantly, asphalt that has been exposed to motor oil deposited on it would create a possible hazard (Depo of Ray Roberts age 61, line 18 to 25) as the physical effects of motor oil on asphalt is that it makes it slippery. It is submitted that the defendants had to have actual knowledge that there was a danger of a person injuring themselves if they slipped on the automotive spillage. As it was there several months prior to the accident. This is constructive notice (Declaration of Jerry Chan and Jenny Phan) Additionally, as it existed for several months pursuant to the Declaration of the plaintiff and Jerry Chen before the accident, they certainly had constructive notice. The California Supreme Court has held that a landlord owes a duty of care t its tenants to take reasonable steps to secure the common areas under its control Ann M v. Pacific Plaza Shopping Center (1993) 6 Cal 4" 666.675, 25 Cal Rpts 2d Page 4 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION26 27 28 137. Defendants are contending in their Memorandum of Point and Authorities that plaintiff tripped. She did not trip. She slipped. In Ortega v. K-Mart Corp (2001) 26 Cal 4" 1200, that Court held that evidence of the owner’s failure to inspect and remedy a dangerous condition that was on the floor long enough to give the owners time to discover it and remedy is negligence (Id. @ 1203) The photo of space 153 taken 2 or 3 days after the accident by Mr. Jerry Chen and attached to his declaration as Exhibit A surely is evidence of a substantial amount of vehicle spillage that should have been observed and remedied as there are the declaration by both plaintiff and Jerry Chen that it existe for several months before the accident. CCP Section 437 (c) states that the Motion for Summary Judgment must be denied if there is any evidence of a triable issue of fact. In this case there are several triable issues of facts, viz a. Was there accumulated automotive spillage on space 153 and the wheel stop. Plaintiff submits that there is based most importantly on the photo taken 2 or 3 days after the plaintiff's accident and the Declaration of Mr. Jerry Chen who took the photograph and his own declaration. b. Whether the defendants violated its own safety standards stated in the testimony of Mr. Ray Roberts. c. Did the defendants violate San Jose City ordinance and the California Building Code. Plaintiff contends that the accumulated automotive spillage was visible as depicted in the photo taken by Mr. Chen. 3. CONCLUSION Plaintiff respectfully submits that for reasons stated that the defendants are not entitled to a Summary Judgment because there are materials triable issue of facts. Page 5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATIONoy 28 DATED: 3 f: a ho SG Woe used ’ Law Offices of Henry H. Liem) By Marc J. Bourget, Attorney for Plaintiff, Jenny Phan ce Page 6 ~ ee MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION