Motion to Set Aside or Vacate Judgment, Default or Dismissal in ERIKA CHRISTMANN ETAL VS ALLEN L PRICE ETAL| Trellis.Law

On June 05, 2013 a Motion-Secondary was filed involving a dispute between Christmann, Erika, Curtaz, Gary, and Price, Allen L, Price, Carol, for (23) Unlimited Other PI/PD/WD in the District Court of San Mateo County.

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1 ALLEN L. PRICE
CAROL PRICE
2
2000 Vallemar Street
Moss Beach, CA 94038 SANmVEOcoomV
1i
4 Petitioners In Pro Per

1|r
Cstk t 'ior
iYA( 3313

Court

SUPERIOR COURT OF CALIFORNIA:UNLIMITED

COUNTY OF SAN MATEO
10

ERIKA CHRISTMANN, No. CIV 522015
GARY CURTAZ, )
12 )
Plaintiffs, ) DECLARATIONOF ALLEN L. PRICE IN
:13::-
) SUPPORT OF PETITION TO VACATE
) BINDING ARBITRATIONAWARD
)
15 ALLEN L. PRICE )
CAROL PRICE ) Date: April 18, 2016
16 and DOES 1 through 25, inclusive, Time: 9:00 a.m.
)
17 ) Dept.: Law and Motion
Defendants. )
18' ) Binding Arbitrator: Charles Dyer
) Date of Arbitration: December 10/11, 2015

20
I, ALLEN L. PRICE, declare as follows:
21
1. -:-Along with my wife Carol, I am one of the defendants (respondents in the below arbitration and
22
.-::-:-:...: .petitioners here) in this action. I am over the age of 18. I have personal knowledge of the facts stated
23

24
:
below and would and could testify competently ifcalled as a witness. I make this declaration in

..support of my and my wife Carol's petition to vacate the $ 429,647.14 binding arbitration award entered

26 against us. The arbitrator found us 60% liable.
27 fall injury sustained
.
2. This lawsuit involves a trip and by plaintiffon September 24, 2012.
28
DECLARATIONOF ALLENL. PRICE IN SUPPORT OF PETITION TO VACATEBINDING ARBITRATION
AWARD
3. Plaintiff sued my wife Carol and me as landowners of the subject property on which plaintiff

fell.
3
4. Since we could not afford an attorney, and since we did not have any applicable insurance, my

wife and I largely represented ourselves.

6
5. On June 5, 2013 plaintifffiled suit in the Superior Court of San Mateo county.

, 6; -- On July 26, 2013 my wife and I filed our answer to the complaint. We hired an attorney on a

limited basis because we did not have enough money to pay a full-time attorney.

.-
-7. In-March, 2014 the parties attended a mediation. My wife and I represented ourselves in pro
10
per. The case did not settle at the mediation.

. 8...From May 19, 2014 on, my wife and I represented ourselves exclusively in Pro per.
12
9. On-August 3, 2015 the court ordered that this case be resolved through binding arbitration.
13
-
10. The parties agreed on arbitrator Charles Dyer as a binding arbitrator.

1-5. ': --- =,
1;1:.:-In. December, 2015 the parties attended a binding arbitration and tried their case in front of

arbitrator Charles Dyer.
17
--.12. On. or about December 16, 2015 Mr. Dyer issued his Award of arbitrator. A true and correct
18
copy of the award is attached as Exhibit A.
19
::,.'.......'13
I believe my wife and I did not obtain a fair arbitration proceeding because at the arbitration,
20
: 2-1'-:.=Mr.--Dyer refused to allow us to introduce critical evidence. In particular, the arbitrator refused

22 to admit into evidence applicable Building Codes governing stairways and railings.

14. Attached hereto as exhibit B is a true and correct copy of the 2007 California Building code
24
relating to egress stairways and railings.
25
15. My wife and I were not allowed to introduce these codes into evidence by the arbitrator.
26
16. My wife and I have always contended that the site at which plaintifffell was not an egress
27
location since it had nothing to do with exiting or entering the house.
DECLARATIONOF ALLEN L. PRICE IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATION
AWARD
17. Rather, our position was that the subject stairs were landscape stairs and therefore no hand

2
railings were necessary, nor specific step dimensions for riser and tread.

18. The arbitrator did not allow key evidence of the landscape stair issue.

19. On the first day of arbitration, December 10, 2015, I requested that the arbitrator, Charles Dyer,

enter into evidence the exact section of the applicable building code sections that I had printed out.

-7 -
They comprised a total of 4 pages and were copied from:the 2007 Residential Building Code. They

were drawn from voluminous online searches of "stairway codes", both interior and exterior. The 2007

version applies-since steps were built during that year. The section on stairs actually hasn't changed for
10
years. See Exhibit B.

:: -
'. -20;Mr. Dyer refused to accept the pages as evidence and mentioned that a building code
12
—
expert was not.scheduled to support it. I reviewed every single word with him in the few sentences that
13
applied;- pointing out the-use of the word "egress" was the key word that did not require us to have

15 hand railings nor specific dimensions of riser and tread.

:: 21. I had.already entered into evidence a photo that showed the stairs were not connected to the

house nor part of any required egress path. I made it very clear to him that these code pages were the
18
very "Bible" that all builders refer to.
19
--""22;:Mr.:Dyer said he wouldn't rule on accepting this evidence right then, but would take it under
20
submission in his review of all the evidence.

:- -
-22 .
--. 23.On the second day of arbitration, December 11, 2015, Claimant lawyer, James Kaestner,

:----.-;3 ----presented an expert witness, Michael Rohotsky, who testified about building codes applicable to my
24 —
-.patio
:-.:--..-.---'=--
steps. He stated building codes required steps to have a certain riser height and tread depth. He-
25
also stated that a handrail was required.
26

28
'ECLARATIONOF ALLEN L. PRICE IN SUPPORT OF PETITION TO VACATEBINDING ARBITRATION
AWARD
24. During my cross examination of Mr. Rohotsky, I asked ifhe was aware that building codes for
2
stairs applied only to egress stairs. He stated that he was not aware of such a fact. I also asked ifhe
3
was aware that San Mateo County Building Inspectors did not inspect landscape stairs. He said he was
4
not aware of that fact either.

25; Upon finishing the cross examination, a discussion arose with Mr. Dyer about the expert

.
7 . -witness and the building codes. I reiterated the importance of the literal text in the code that

demonstrated the expert witness was simply uninformed and incorrect. Mr. Dyer gave no indication

whether he would accept the Building Code pages as evidence.
10
-
26. In the -Arbitrator's Award received on January 6, 2016, Mr. Dyer stated that my wife and I had

:
-
-- .-.:submitted building code information, but he deemed it inadmissible evidence. Because Mr. Dyer
12
refused to admit-or consider key Building Code sections, a finding of negligence was virtually a

certainty and this key defense was not considered.

15 27.-I:would ask the court to grant this petition to vacate the binding arbitration award under Code of

..:.Civil.Procedure-section--1288 and send this case out to binding arbitration with a different and new
17
arbitrator.
18

19
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
20
--- --:-- --- -
2=1- =::,correct:to the best of my knowledge and belief. Executed this 11th day of March, 2016 at Burlingame,-

22 California.

23
ALLEN L. PRICE
24

28
DECLARATIONOF. ALLENL.PRICE IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATION
AWARD
CHARLES A. DYER, Esq., state Bar 447718
DYER & WHITE LLP
800 Oak Grove, Suite 200
Menlo Park, CA 94025
(650) 325 —7000-Telephone
(650) 325-3116-FAX
cdver8dver-white.corn
5 ARBITRATOR

IN THE ARBITRATION OF

8 ERICA CHRISTMANN, )
)
Claimant )
) AWARD OF ARBITRATOR
10 )
) Date: December 10 & 11, 2015
11 ALLEN PRICE and CAROL PRICE, ) Time: 9: 30 am.
) Neutral: Charles A. Dyer
12 Respondents. ) Location: Dyer & White, LLP
)
13

14 1. INTRODUCTION:

15 Before: CHARLES A. DYER, Arbitrator.
The above-named Arbitrator having been duly selected and

17 appointed in the above-entitled binding arbitration proceeding,
18 and having heard the matter, by agreement of the parties, on

19 December 10 and 11, 2015, makes this Award of Arbitrator.
20 The Claimant Erica Christmann (hereinafter "Claimant" ) was

21 represented by James A. Kaestner, Esq. of the Law Offices of
22 James A. Kaestner.
23 Respondents Allen L. Price and Carol Price (hereinafter
24 "Respondents" ) each appeared in pro per.
25 1. Prior to this Arbitration, all parties agreed that the
26 provisions of Code of Civil Procedure 51282.2(a) (1) for personal
27 service or by registered or certified mail were waived and the
28 Notice of Arbitration may be served by the Arbitrator by first
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1 class mail and/or e-mail.
2 2. Charles A. Dyer, an attorney admitted to the State Bar
3 of California, as agreed upon by the parties, was the Arbitrator.
-4 -The- Arbitrator provided the attorneys representing each party
5 with an Arbitrator's Disclosure (Code of Civil Procedure
6- 51281.9). No party requested amplification of the disclosure nor
7 served a notice of disqualification.
3. There was no transcription of the proceedings by a

9 Stenographic Reporting.
10 4. All parties by mutual agreement and with the approval
11 of the -Arbitrator and by their appearance at the Arbitration
12 waived all the provisions and requirements set forth in Chapter 3

13 of the Code of Civil Procedure, which includes, but is not limi-
14 ted to, disclosure time limits, time requirements for notice of
15 the hearing, further time limit requirements, mailing by regis-
16 tered or certified mail, exchange of list of witnesses, exchange
17 of documentary evidence, etc.
18 5. A pre-arbitration conference was held on November 3,
19 2015. The Claimants Erica Christmann and Gary Curtaz were repre-
20 sented by James A. Kaestner, Esq. of the Law Offices of James A.
21 Kaestner. Respondents Allen L. Price and Carol Price each ap-
22 peared in pro per. At that time a written Stipulation was en-
23 tered into whereby the action of Claimant Gary Curtaz was dis-
24 missed in consideration for a waiver of costs. Other stipu-
25 lations were agreed upon between the parties:
26 1. Stipulation of Facts;
27 2. Stipulation Re: Admissibility of Deposition Tran-.
28 scripts in Arbitration;
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.1 3. Stipulation Re: Use of Discovery Requests and Dis-
2 covery Responses at Arbitration; and
3 4. Stipulation Re: Authenticity of Records and Use of
4 Copies at Arbitration.
5. Oral and documentary evidence was introduced on behalf
6 of the respective parties and the cause was argued and submitted
7 for decision. The parties agreed that they had provided all the
8 evidence they wished to submit at the close of evidence.
9 6. The Arbitration closed on December 11, 2015.
10 7. The Award includes a determination of all the ques-
11 tions submitted to the Arbitrator the decision of which is neces-
12 sary in order to determine the controversy.
13 8. The Arbitrator, having considered the arbitration
14 briefs submitted by each party, testimony of all witnesses, the
15 exhibits admitted into evidence, the summations/closing arguments
16 and being fully advised, finds, and awards as follows:
17 2. WITNESSES:
18 1. Erika Christmann: Claimant
19 2. Gary Curtaz: Claimant's spouse
20 3. Carol Price: Respondent
21 4. Allen L. Price: Respondent
22 5. John Rohotsky, A.I.A.: Claimant' expert construction
23 6. John Lavorgna, M.D.: Claimant's expert medical
24 7. James L. Pfeifer: by deposition, concrete contractor
25 3. EXHIBITS ADMITTED INTO EVIDENCE:
26 The Claimant's Exhibits 1 to 26, 28 to 34, 45 to 46, 51 to
27 55, 58 to 61 and 63 to 72 were admitted into evidence.
28 The Respondents'xhibits A to H, J and L to M were
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1 admitted into evidence.
2 All the Exhibits admitted into evidence were considered by
3 the -Arbitrator in making his decision concerning the Award.
4 4. RESPONDENTS APPEARING PROPRIA PERSONA:

The Respondents in this matter chose to appear in propria
. 6 persona ("pro per"). "They are defending themselves since legal
7 -
representation is to [sic] expensive for them." (Respondents'-.-

Arbitration Brief, p. 1, '%2.) The Respondents'ecision posed
9 somewhat of a dilemma for the Arbitrator.
.10 The law is clear that Respondents were not entitled to
11 special treatment or greater leniency because they were appearing
12 in pro per. Under the law, a party may choose to act as his or
13 her own attorney. (Paradi se v. Nowlin (1948) 86 Cal. App. 2d
14 897, 898. ) "[S] uch a party is to be treated like any other party
15 and is entitled to the same, but no greater consideration than
16 other litigants and attorneys. [Citation.]" (Barton v. New
17 Uni ted Motor Manufac'turing, Inc. (1996) 43 Cal. App. 4th 1200,
18 1210; Nwosu v. Uba (2004) 122 Cal.App. 4th 1229, 1246 —1247. )

19 "A doctrine generally requiring or permitting exceptional
20 treatment of parties who represent themselves would lead to a
21 quagmire in the trial courts, and would be unfair to the other
22 parties to litigation." (Kobayashi v. Superior Court (2009), 175
23 Cal.App.4th 536, 543'.)
24 The Arbitrator applied the basic propositions set forth in
25 Garnet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285, by
26 acknowledging that the Respondents did not have an attorney's
27 level of knowledge about the legal system and made every effort
28 to explain procedures, objectionable evidence offered (i.e.,
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1 evidence re remedial repair), lack of foundation for evidence,
2 etc. to the 'Respondents. The Arbitrator monitored the proceeding
3 -to ensure the Respondents were not inadvertently misled and took
4 special care to ensure that rulings which could have been ex-
5 pressed in legal shorthand were clear and understandable by a

6 layperson. The Arbitrator also allowed the Respondents to
7 present direct testimony in narrative form.
However, in making decisions concerning this Award, the
.9 Arbitrator necessarily disregarded some of the Respondents'm-
10 plied defenses which were perfunctorily asserted without develop-
11 ment. (See Opdyk v. California Horse Racing Bd. (1995) 34

12 Cal. App. 4th 1826, 1830 —1831, fn. 4. )

13 5. PRELIMINARY FACTS:
This is an unfortunate premises liability case that arises
15 from a fall down a set of outdoor stairs ("subject stairway")
16 that occurred on September 24, 2012, at an ocean-view rental
17 cottage located at 2000 Vallemar Street, Moss Beach, California
18 ("subject property").
-19 The Respondents were the owners and managers of the sub-
20 ject property. The Respondents are husband and wife. They have
21 owned the property since 2006 and have rented it on a nightly or
22 weekly basis on many occasions since their ownership commenced.
23 The subject property had been rented by a friend of the
24 Claimant from Friday, September 21, 2012, through Monday, Septem-
25 ber 24, 2012, for the Claimant's wedding and reception.
26 Claimant and Gary Curtaz were married at the property on
27 Saturday, September 22, 2012.
28 On the morning of September 24, 2012, as the Claimant was

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1 preparing -to vacate the subject property, she was injured when

2 she fell on the subject stairway that led to the ocean view patio
3 where the wedding ceremony and reception had been held two days
earlier.
5 6. DESCRIPTION-OF THE PREMISES AND AREA OF SUBJECT INCIDENT:

The -subject- property was advertised by the Respondents and
rented for vacation use, events or romantic getaways. The Re-

8 spondents rented it for around one hundred fifty (150) days a

9 year. There is only one path of travel directly from the public
10- street and cul-de-sac to the ocean view patio where the wedding
11 took place. This is a gravel path that served as a driveway and

12 walkway leading down the side yard of the subject property to a

.13 wooden fence and gate. The subject stairway was immediately
14 beyond the gate opening consisting of five descending steps
15 which led to a wide landing.
16 7. SOME APPLICABLE LAW:

17 Everyone is responsible for an injury occasioned to
18 another by his or her want of ordinary care or skill in the
19 management of his or her property, except so far as the latter
20 has by want of ordinary care, brought the injury upon himself or
21 herself. (Civil Code 51714(a) .)
22 "It is now well established that California law requires
23 landowners- to maintain -land in their possession and control 'in a

24 reasonably safe condition." (Ann ¹ v. Paci fi c PZaza Shopping
25 Center (1993) 6 Cal.4th 666, 674.) "The proper test to be ap-
26 plied to the liability of the possessor of land is whether
27 in the management of his property he has acted as a reasonable
28 man in view of the probability of injury to others
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1 (Rowland v. Christian (1968) 69 Cal. 2d 108, 119. )

The -owner of property is obligated to exercise only ordi-
3 nary care in keeping the premises in a safe condition; he is not
4 an insurer of the safety of his invitees. (Owen v. Beauchamp
5 (1944) 66 Cal.App. 2d 750, 752.)
"Although the obviousness of a danger may obviate the duty
7 to warn of its existence, if it is foreseeable that the danger
8 may cause injury despite the fact that it is obvious (e.g., when

9 necessity requires person to encounter it), there may be a duty
10 to remedy the danger, and the breach of that duty may in turn
11 form the basis for liability[. ]" (Marti nez v. Chippewa Enter—
12 pri ses, Inc. (2004) 121 Cal.App.4th 1179, 1184, citing Oshorn v.
13 Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.
14 "Contributory negligence is conduct on the part of the
15 plaintiff which falls below the standard to which he should con-
16 form for his own protection, and which -is a legally contributing
17 cause cooperating with the negligence of the defendant in bring-
18 ing about the plaintiff ' harm." (Li v. Yellow Cab Ca. (1975) 13

19 Cal.3d 804, 809.)
20 Contributory negligence is a defense that reduces the
21 total amount of the plaintiff's damages by the proportion or
22 percentage of negl'igence attributable to the plaintiff. (Drust
23 v. Drust (1980) 113 Cal.App.3d 1F 6F fn 1 )

24 8. DISCUSSION:
-" =—
=-.="=25.-. — .-. -- 1. -Did Respondents own, lease, occupy and/or control the
26 subject property?
27 Yes.
28 The Respondents admitted in. the Stipulation of Facts that
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they were the owners and renters of the subject property.
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2; Were'--the Respondents negligent in the use or mainte-
3 nance of the property?
Yes.
'he Respondents purchased the subject property in 2006.

6 In August of 2007 Respondent Allen Price ("Mr. Price" ) with the
aid of a day laborer installed the subject stairway leading into
8 the patio area.'his new construction was built for the dual
9 purpose of being a retaining wall and a stairway. Mr. Price did
1-0 not consult with an architect or landscaping contractor before he

11 designed and built the subject stairway . The subject stairway
12 -
was built - with uneven concrete retaining wall blocks rather than
—
13 uniformly shaped capstones usually used for outdoor stairs . The

14 blocks are rough on the front and rounded front to back in a half
15 moon design .

16 Claimant presented tne expert testimony of John Rohot s ky
17 ( "Mr . Rohot s ky" ) , A . I . A, Architect and Licensed California Con-
18 tractor who opined, based upon his review of photographs of the
19 subject stairway taken near the time of Claimant's fall and an
20 inspection of the subject stairway after some remedial work had
21 been completed, that the subject stairway was at the time of the
22 subject incident unsafe as it did not comply with the provisions
23 of the applicable Building Code nor did it meet the usual safety
2.4-- -.standards in regard to stairways as there was no handrail, tread
25
26 1

27 There was some discussion that the installation may have
been in August of 2008. However, the Respondents
28 responded -in Answers to Special Interrogatories
that
that it
was August of 2007 and offered no evidence the
installation was in August of 2008.
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1 depth and riser height varied and there was no nosing.
Mr. Rohotsky also testified that the cost of building the
-3 steps safely, using even capstones made specifically for stairs,
4 and arranging them to comply with Building Codes and standard
5 safety features including the installation of a hand rail was a

6 minimal financial burden.
The Respondents contended that the subject stairway did
8 not have to comply with the Building Code provisions as it was an
9 outdoor landscaping structure. However, after a lengthy discus-
10 sion. and being allowed an opportunity to present additional evi-
11- dence and law concerning the issue, the Respondents failed to
12 present any admissible evidence or applicable law to support that
13 contention.
The Respondents also contended that Mr. Rohotsky's testi-
15 mony was not impressive, but they offered no opposition to his
16 qualifications or the basis for his expert opinions.
17 The Arbitrator notes that without an actual objection from
,18 .the Respondents, the Claimant presented evidence of remedial re-
-19 -
pair by the Respondents. The Respondents did offer testimony as
20 to the reasoning for such repair, part of which was the belief
21 that such repair would not be used an evidence of negligence.
22 Evidence Code 51151 provides: "When, after the occurrence
-23 -of- an--event, remedial or precautionary measures are taken, which,
24 if taken previously, would have tended to make the event less
25 likely to occur, evidence of such subsequent measures is inadmis-
26 sible to prove negligence or culpable conduct in connection with
27 the event." (Evidence Code 51151.) Although there are excep-
--28 tions to this general rule of inadmissibility, the Claimant did
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1 not offer any applicable exception except for the timing of the
2 remedial repair which was done after the Claimant had made a
3 demand for permission to enter and inspect property. No legal
4 authority making the timing an exception was provided by
5 --Claimant,- and -the Arbitrator's independent legal research did not
reveal timing as an exception. The Arbitrator did not consider
the remedial repair as evidence to prove negligence or culpable
conduct.
The Arbitrator finds that the Respondents'egligence
10 -
created and then failed to correct an unsafe condition in regard
11 to the subject stairway.
12 Included in the Arbitrator's finding of Respondents'eg-
13 ligence was a decision that even though the defense of obvious
unsafe condition was not presented by the Respondents, that had
15 it been presented the Respondents, under the facts and circum-
-1-6- stances of--this matter, had a duty -to remedy the unsafe condition
17 and the breach of that duty was negligent.
. --.:18.=.=--... —.. 3. Was the Respondents'egligence a substantial factor
19 in causing harm to the Claimant.
Yes.
21 As Claimant was preparing to vacate the subject property,
22 she decided to check the patio area to make sure all of the area
23 was returned to normal and in particular that the persons picking
24 up the rented tables, chairs and other items delivered for the
25 wedding and reception had taken all that material. She went to
26 -the top of the subject stairway with the intention of descending
27 down the center area of -the stairway. Her testimony was that she
28 stepped down with her right foot onto the next row of steps from
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1- 'he top. As she began to step down with her left foot to the

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Susan I. Etezadi Track Judge’s New Case

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March 11, 2016

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June 05, 2013

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Motion-Secondary: ERIKA CHRISTMANN ETAL VS ALLEN L PRICE ETAL

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