Weathers v. Choe CA4/1

Opinion

Filed 8/28/26 Weathers v. Choe CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TIMOTHY MICHAEL WEATHERS et D087132 al., Plaintiffs and Appellants, (Super. Ct. No. CVRI2302997)

v. JOHN C. CHOE, DDS, INC., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Riverside County, Dorothy McLaughlin, Judge. Affirmed.

Silverthorne Attorneys, Ian Silverthorne, Law Office of Mohammed Aly, Mohammed Aly for Plaintiffs and Appellants. Murphy, Pearson, Bradley & Feeney, Jeff C. Hsu and Patrick A. Gillespie for Defendant and Respondent. Timothy Michael Weathers and Yvette Marie Craver appeal the trial court’s granting of John C. Choe’s summary judgment motion and dismissal of their wrongful death action after their mother Sylvia Weathers (Weathers) sustained fatal injuries when she tripped and fell outside Choe’s dental practice. They argue the court erred in finding they failed to create a triable issue of material fact as to causation in opposing his motion. We conclude there is no evidence Choe contributed to their mother’s death and affirm.

FACTUAL AND PROCEDURAL BACKGROUND1 A. Background Since approximately 2002, Choe’s dental practice has been located on Ramsey Street in Banning, California. Prior to her passing, Weathers had been Choe’s patient for more than 15 years. During this time, it is estimated she had entered and exited his office from the parking lot and front door area at least 18 times without incident. In June 2021, Weathers visited Choe’s dental practice for a routine check-up related to the fit of her dentures. The appointment was scheduled for 9:30 a.m. and the conditions that morning were clear and sunny. That morning, Weathers’s friend, Charlene Seeley, drove Weathers to Choe’s office for a dental appointment. Seeley then left and waited for Weathers’s call to pick her up. The appointment was routine, and Weathers did not require drugs or medication. Afterwards, Weathers called Seeley to pick her up. Choe’s staff members asked Weathers to remain inside, however she decided to wait for her ride outside. While waiting outside of Choe’s office, she fell. Seeley had received a call to pick up Weathers and drove back to Choe’s office where she saw Weathers standing outside to the right of the front entrance. Seeley parked in a handicapped parking spot and approached 1 Because this is an appeal from a grant of summary judgment in favor of Choe, “our account of the facts is presented in the light most favorable to the nonmoving party below, . . . and assumes that, for purposes of our analysis, [the nonmoving party’s] version of all disputed facts is the correct one.” (Birschstein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999.) We draw the background facts from the parties’ separate statements of undisputed facts and evidence submitted in support of them. 2 Weathers who was holding a document in her hand. Weathers tried to hand the document to Seeley, but Seeley declined stating “I’m just going to go in and pay that. I don’t need it.” Seeley then turned away from Weathers and started walking towards the front entrance of Choe’s office. Seeley then heard what she later understood to be Weathers’s fall. Seeley turned around and saw Weathers on the ground, lying on her back. However, Seeley, nor anyone else, saw Weathers fall. When asked what happened, Weathers only stated, “I tripped” and gestured generally to her right. After helping Weathers sit up, Seeley told her she was going to call an ambulance. Weathers told Seeley she did not want to call for an ambulance, as she was still paying off another recent ambulance trip. Nonetheless, Seeley called 911. An ambulance arrived and took Weathers to the hospital. During her time at the hospital, Weathers never told anyone why she fell or if any condition at Choe’s office caused her to fall. Weathers underwent a surgery to remove a blood clot from her brain, but she died eight days after her fall. In June 2023, Weathers’s children filed a complaint alleging a cause of action for wrongful death arising from their mother’s death. They contended that Choe’s negligence and failure to maintain its premises in a reasonably safe condition directly caused Weathers’s death. B. Motion for Summary Judgment In October 2024, Choe moved for summary judgment on the basis that there was no causal connection between his conduct and Weathers’s death. Weathers’s children filed an opposition asserting that their mother’s death was directly caused by an unsafe ramp on Choe’s property, and that Choe knowingly and deliberately destroyed video evidence showing the incident. They alleged the ramp and surrounding area allowing access for 3 handicapped persons to Choe’s office was improperly designed, representing a dangerous condition on his property, which caused Weathers to trip and fall. They also noted that Choe remodeled the sidewalk in front of his office in 2013. In opposing Choe’s motion, Weathers’s children relied primarily on the expert declaration of Brad Avrit that stated the single-step transition to the handicap ramp on Choe’s property was a dangerous condition. Avrit declared he was retained to render safety and liability expert opinions as to “when [Weathers] fell off an unmarked height differential along a curb in the parking lot.” He reviewed the complaint, historical Google street views, and 10 digital photographs provided by counsel. He declared the ramp and surrounding area allowing access for handicapped persons to Choe’s office was “in an unsafe condition at the time of the incident and was the cause of [Weathers’s] fall.” According to the Weathers’s children’s summary judgment opposition, video footage captured Weathers walking behind the ramp near a metal gate on the east side of the sidewalk immediately before her fall. Choe observed the footage but stopped watching it before the fall occurred, despite knowing Weathers had been injured and hospitalized. The family members alleged Choe destroyed the recording, which was under his exclusive custody and control. In December 2024, the trial court granted summary judgment in favor of Choe. Disregarding much of Avrit’s declaration, the court found Weathers’s children could not establish a triable issue of fact regarding the essential element of causation.

4 DISCUSSION A. Relevant Legal Principles We review de novo the grant of summary judgment by the trial court. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) But “[s]ummary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit if the defendant has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id., subd. (p)(2).) “ ‘On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.’ [Citation.] We review the entire record, ‘considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion.” (Regents of University of California v. Superior Court, supra, 4 Cal.5th at 5 p. 618; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party.”]. While we review the evidence in the light most favorable to the nonmoving party, we will not “draw inferences from thin air,” and the plaintiff must “show that the inferences favorable to her are more reasonable or probable than those against her.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 474; see also, United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 392.) (“Improbable conclusions will not be sustained where testimony is at variance with the physical facts and the repugnance is material and self-evident.”). Additionally, despite that review standard, we presume the judgment is correct and appellant still bears the burden of demonstrating error. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1376; GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1245 [“ ‘[A]ppellant has the burden of showing error, even if [s]he did not bear the burden in the trial court.’ ”]; Tubbs v. Berkowitz (2020) 47 Cal.App.5th 548, 554 [same].) B. Analysis Weathers’s children argue a triable issue of material fact exists as to causation of Weathers’s fall. We disagree. The elements of a wrongful death cause of action are “(1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ ” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390.) In a slip and fall case, the evidence must “give[ ] rise to a reasonable 6 and probable inference that the defendant’s negligence was a substantial contributing factor.” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 217 (Kaney).) Seeley, the only witness outside with Weathers, established Weathers stood “in the area of the ramp” prior to her fall. However, she testified that she “turned and walked away” and “did not witness her falling.” She also did not recall “where [Weathers] was laying” after she fell. Shortly after the fall, when Seeley asked Weathers what happened, Weathers simply stated “I tripped.” Weathers “pointed to the right of her,” however Seeley did not know if she was pointing to anything specifically. In fact, in the following days, Weathers never stated to anyone why she fell or if any condition at Choe’s property caused her to fall. Because there is no evidence that would compel an inference that Choe’s negligence substantially contributed to Weathers’s death, we may determine causation as a matter of law. (Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036 [“Speculation does not establish causation; we therefore conclude that there is no admissible evidence to create a triable issue of material fact.”].) Weathers’s family members nevertheless argue the ramp outside Choe’s office “contained an unnecessary single-step transition that violated industry safety standards and created a known tripping hazard.” In making their argument, they rely on Avrit’s declaration that Weathers “fell off an unmarked height differential along a curb in the parking lot” and “that the step/subject change in elevation between the concrete walkway and the asphalt parking lot surface . . . was the cause of Weathers’[s] fall.” Evidence Code section 801, subdivision (a), provides that the opinion of an expert witness is limited to testimony “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would 7 assist the trier of fact.” An appellate court may not disturb the trial court's ruling on the admissibility of opinion evidence absent an abuse of discretion. (Westbrooks v. Cal. (1985) 173 Cal. App. 3d 1203, 1210.) Here, the trial court did not abuse its discretion in determining that Avrit’s opinion lacked evidentiary value as it was “not based on the facts and evidence of the case.” Avrit’s conclusions lack evidentiary support as he failed to cite any evidence Weathers navigated any single-step transition or was on the ramp when she fell. Additionally, he only reviewed the complaint, historical Google street views and 10 digital photographs provided by counsel to render his opinions. As the trial court observed, “Mr. Avrit does not attach any of the images nor is there any elaboration on exactly what Google Street View or photographs Avrit reviewed, nor his analysis of that data. Moreover, his conclusion is not based on the facts and evidence of the case. There is no evidence supporting Mr. Avrit’s declaration as to how Sylvia tripped and fell.” Finally, it is undisputed that the subject parking lot was remodeled in 2013, and Avrit offers no opinion that any of the 2019 standards or codes he discusses were violated or applied to existing walkways. We agree with the trial court’s determination that Avrit’s opinion “does not establish a triable issue of material fact regarding causation.” (See Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781 [“ ‘ “[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” ’ ”].) Further, here in addition to being unsupported by evidence and lacking foundation, Avrit’s opinions that the ramp “was the cause of [Weathers’s] fall,” that Choe “knew or should have known of the . . . unsafe condition,”

8 and that Choe “failed to provide a safe premises” are legal conclusions to ultimate facts and properly disregarded. (See Towns v. Davidson (2007) 147 Cal.App.4th 461, 473 [“ ‘Courts must be cautious where an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion.’ ”].) Without evidence that an unspecified dangerous condition with the ramp outside Choe’s office caused Weathers’s fall, there is no inference Choe was negligent “from the mere happening of an accident.” (Edwards v. California Sports (1988) 206 Cal.App.3d 1284, 1287; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [“ ‘[P]laintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ ”].) As the trial court wrote in its statement of decision, the facts here are similar to those in Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729 (“Buehler”), where the trial court granted summary judgment in a personal injury case after plaintiff, and the only other witness, could not identify the cause of the plaintiff’s fall. (Id. at pp. 731–733.) The court considered plaintiff’s deposition testimony and determined that plaintiff could argue “that she slipped and fell. She lost her balance for some unknown reason. She did not see anything on the floor which caused her to slip and fall and did not know what caused her to slip.” (Id. at p. 734.) In affirming the grant of summary judgment, the Court of Appeal explained that “[c]onjecture that the floor might have been too slippery at the location where appellant happened 9 to fall is mere speculation which is legally insufficient to defeat a summary judgment” since “ ‘[n]egligence is never presumed.’ ” (Ibid.) Similarly, in Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, the Court of Appeal affirmed summary judgment because “[w]ithout any evidence showing that a slippery substance was in fact on the floor at the time plaintiff fell, or that others had slipped in the same location, there was no legitimate basis to support an inference that defendant’s breach caused plaintiff to fall.” (Id. at p. 1036.) As in Peralta, there is no evidence here that anybody else had ever tripped or fell near the entrance to Choe’s office. Also like here, the court in Peralta similarly found that a declaration from Avrit, in which he opined the way the plaintiff fell was consistent with a slip caused by a foreign substance, was “mere conjecture” and “legally insufficient to defeat summary judgment.” (Ibid.) Similarly, in Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143, the evidence showed that plaintiff “slipped and fell; that she lost her balance, she did not see anything on the stairway that caused her to slip and fall, and she did not know what caused her to slip.” (Id. at p. 145.) “No inference of negligence arises from the mere proof of a fall upon the stairway.” (Ibid.) Furthermore, “[w]hile a duty was imposed upon the owner of a building to police and inspect a stairway it invites others to use, the minimum duty of the invitee was to show that the stairway was in fact unsafe and that she fell because of that condition.” (Id. at p. 146.) Weathers’s children seek to rely on Kaney, supra, 74 Cal.App.5th 201, where the Court of Appeal concluded that “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.” (Id. at p. 220.) It explained that it was “common knowledge that safe riser heights 10 and handrails help prevent stumbles, and handrails can prevent stumbles from becoming falls.” (Ibid.) While the plaintiff there testified she “ ‘blocked out’ ” the entire incident, (id. at p. 207), the court held that “it is foreseeable that occupants and visitors would, by necessity, use the stairs to access the lone bathroom.” (Id. at p. 215.) Here, by contrast, we cannot make any inference as to whether a construction modification would have prevented Weathers’s fall because we do not know the circumstances surrounding her fall. There also is no evidence Weathers blacked out or suffered from any memory loss and no inference she could not have identified a dangerous condition. Rather, she was conscious and responsive after the incident and, despite being asked by both Seeley and her daughter what had happened, Weathers never described to anyone that an alleged dangerous condition caused her to fall. Weathers’s children’s reliance on Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720, is similarly misplaced as the plaintiff there established that defendants failed to comply with a statutory duty to provide guard rails. (Id. at pp. 724–726.) The California Supreme Court agreed with plaintiff’s argument that “the building code required guard rails . . . [and] defendants’ negligence in not providing any guard rails was necessarily the proximate cause of her injuries.” (Id. at p. 724.) Unlike in Burdette, we cannot infer that Weathers’s fall would have been prevented if Choe had complied with an applicable statutory provision. Weathers’s family also argues that Choe failed to carry his burden on summary judgment because he “permitted the destruction of video footage that would have shown precisely” where Weathers fell. We are unpersuaded. The evidence shows that approximately one week after Weathers’s fall, during a break from seeing patients, Choe attempted to review video footage 11 from surveillance cameras located outside his office. He only managed to observe a single camera angle which showed Weathers pacing on the sidewalk to the left of the front entrance presumably waiting for her ride. However, he had to return to seeing patients and he did not see if any of the surveillance video that captured the fall itself. By the time Choe later tried to resume review of the videos, due to the settings and limitations of the security camera system, all videos had been automatically overwritten before they could be saved. He did not take any intentional actions to cause any videos to be overwritten or lost. Citing Victor Valley Union High Sch. Dist. v. Superior Court (2023) 91 Cal.App.5th 1121 (Victor Valley), Weathers’s children assert Choe had a duty to preserve the video because it was “reasonably foreseeable” he “would face litigation, given that [he] immediately knew [he] faced liability for the hazardous condition that caused the fall.” We disagree. As the Court of Appeal explained, “[t]he duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.” (Id. at p. 1133.) There, the Court of Appeal held that it was “obvious that evidence about whether a sexual assault occurred and who was responsible should be preserved for litigation.” (Id. at p. 1157.) While Victor Valley also explains “[c]ertain types of incidents, such as slip-and-fall accidents . . . predictably result in litigation” (Id. at p. 1153), it sets out the limits of that observation. “That is not to say that the mere fact of a slip-and-fall . . . is always enough to put defendants on notice of potential litigation and trigger a duty to preserve. But such an event combined with other circumstances may often be enough that defendants should reasonably anticipate litigation beginning soon after the incident itself.” (Ibid., quoting 12 Bistrian v. Levi (E.D. Pa. 2020) 448 F.Supp.3d 454, 469.) These circumstances include a serious accident or injury; relationship of parties, including prior lawsuits; conduct of the parties after an event suggesting future litigation was anticipated; and “statements or conduct” that would put a defendant on notice of a possible lawsuit. (Id. pp. 469–470.) None of these mentioned “other circumstances” apply in this case. There was no litigious relationship between the parties that would lead Choe to suspect he would be sued. Neither did Weathers or her family members make any statements that would have put him on notice of possible legal action. And while it is true that the injury in this case turned out to be very serious, that ultimate result was apparently unknown to Choe at the time he reviewed the video. In addition, there was no reason for Choe to foresee litigation as nobody had previously fallen, much less injured themselves, outside his office.2 He also had no indication there was a dangerous condition outside his office or that any such condition caused Weathers’s fall. Moreover, the surveillance video was automatically overwritten, through no act of Choe or anyone within his control, one week after Weather’s fall and before Choe had notice that litigation was reasonably foreseeable. There is, for example, nothing in the record to indicate Cho knew Weathers had suffered a serious injury before the video was overwritten. (See, e.g., Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 682 [“the party seeking the benefit of an inference from spoliation ‘must demonstrate first that the records were destroyed with a culpable state of mind . . .’ ”].)

2 Indeed, the lawsuit in this matter was not filed until two years after the incident. 13 DISPOSITION The judgment is affirmed. Respondent is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

RUBIN, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.