Scharf v. >Calvary Chapel of
Temecula> Valley>





















Filed 2/4/13
Scharf v. Calvary Chapel of Temecula Valley CA4/2













NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.







IN THE
COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH
APPELLATE DISTRICT



DIVISION
TWO






>

DENNIS SCHARF et al., Plaintiffs and Appellants, v. CALVARY CHAPEL OF TEMECULA VALLEY et al., Defendants and Respondents.

E051885 (Super.Ct.No. RIC463993) O P I N I O N

APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Gloria Trask,
Judge. Affirmed in part and reversed in
part.

Schumann, Rallo & Rosenberg, Kim Schumann, Jeffrey P.
Cunningham, and Eric Arevalo for Plaintiffs and Appellants.

Daley & Heft, Lee H. Roistacher and Mitchell D. Dean
for Defendants and Respondents Calvary Chapel of Temecula Valley and Gary H. Nelson.

Law Office of Margaret M. Byrne and Margaret M. Byrne for
Defendants and Respondents Donald W. Coop and Coop Family Trust.

I. INTRODUCTION

Plaintiff and appellant Dennis Scharf sued defendants and
respondents Calvary Chapel of Temecula Valley (Calvary), Donald Coop,href="#_ftn1" name="_ftnref1" title="">[1]
and Gary Nelson for damages after he was injured while performing work at Calvary.href="#_ftn2" name="_ftnref2" title="">>[2] The present appeal flows from the trial
court’s granting of defendants’ motions for summary judgment. We affirm the judgment as to Coop. We reverse the judgment entered in favor of Calvary and Nelson (the Church
defendants).

Scharf was a parishioner of Calvary. Nelson was Calvary’s pastor. Calvary leased the premises for
the church from Coop, trustee of the Coop Family Trust. In January 2005, Calvary was retrofitting
audio/visual technology on its premises.
Scharf, an audio/visual technician, volunteered “as part of his
ministry” to install the necessary cables and wiring. In the process of doing so, he fell off the
top of an unfinished wall.

At the time of the incident, Scharf was in a secretarial
office in Calvary’s chapel attempting to
direct cable and wiring down the interior space of a wall toward an opening for
an electrical outlet. Unbeknownst to
Scharf, there was a room on the other side of the wall, which housed a shower. The wall on the shower room side was unfinished,
such that there was no wallboard to force the cable and wire down toward the
electrical outlet. In attempting to
determine why the cable and wire were not moving toward the outlet, Scharf
hoisted himself onto the top of the wall.
After balancing himself, he fell and suffered serious injuries as a
result.

Defendants moved for summary judgment on the bases that
they did not owe a duty of care to Scharf and their conduct or lack thereof was
not a cause of injury. Although
defendants did not rely on Privette v.
Superior Court (1993) 5 Cal.4th 689 (Privette)
and the parties did not brief issues regarding the doctrine of peculiar risk,
the trial court granted summary judgment based on Privette and its progeny.href="#_ftn3" name="_ftnref3" title="">>[3]

On appeal, Scharf argues that Privette and the peculiar risk doctrine does not apply and that it
was improper for the trial court to base its decision on a line of cases not
raised by the defendants and not briefed by either side.href="#_ftn4" name="_ftnref4" title="">>[4] In response, defendants submit that Scharf,
by focusing exclusively on the trial court’s rationale, waived arguments on
appeal as to duty and causation because of his failure to address the
“pertinent legal issues.” Additionally,
and for the first time in this matter, defendants submit that >Privette and its progeny support the
proposition they did not owe a duty to Scharf.href="#_ftn5" name="_ftnref5" title="">>[5]

II. FACTS

As the owner of the property, Coop initially leased the
premises to Calvary sometime in the
1980’s. Title to the property was
thereafter transferred to the Coop Family Trust, and Coop, as its trustee,
entered into another lease with Calvary in 1995.href="#_ftn6" name="_ftnref6" title="">[6]

Upon the expiration of the initial lease, Coop went to
the property and, according to his deposition testimony, “was familiar with the
premises.” He did not thereafter inspect
the premises or hire a general contractor for purposes of making repairs or
performing maintenance of the premises.
Before the incident, his involvement with the property was limited to
the outside landscaping, which was done on an as needed basis by employees who
worked on his ranch.

The original blueprint of the subject property was of an
unimproved building. All of the internal
work on the chapel was performed by a firm hired by Calvary. While Coop recalls receiving documents
whereby Calvary sought permission to
remodel the subject property and “put up walls,” he does not recall ever
receiving any documentation concerning the building of a “shower room
improvement.” Nor was he ever informed
by anyone associated with the leased property that Calvary built a “shower room
improvement.” He indicated that he first
became aware of the existence of the shower room years after the incident in
question.

At the time of the alleged incident on January
23, 2005,
Scharf’s professional trade was audio/visual technician. As an audio/visual technician, Scharf
performs all of the work that would allow an entity to have its audio/visual
technology operating. Scharf began
working in the field of audio/visual technology in 1988, and since that time
completed about one-half dozen courses on consumer electronics. These courses were designed to train
audio/visual technicians on the installation and running of overhead
audio/visual communication cables and wires.
Other than specific tools used to connect audio/visual equipment, which
vary depending on the type of electrical system installed, there is not a
specific tool unique to the work of an audio/visual technician; the tools are
the same that are used by general contractors.
Prior to January 23, 2005, Scharf had accumulated 17 years of experience
working in the field of audio/visual technology. He worked as an audio/visual technician
throughout those years, installing and running communication cables, and at one
time or another, owned (either wholly or via partnership) three separate
audio/visual companies dealing primarily with commercial clientele.

Scharf first attended services at Calvary in 1997. He met Nelson about a month later. While Scharf was not a member of Calvary, he
attended services on a weekly basis up to the time of the incident.

In approximately 2000, Nelson approached Scharf about
heading up the “tape ministry,” whereby Scharf would be charged with recording
all of Nelson’s sermons and reproducing each onto audiotapes or compact disks
for the purposes of sale. Scharf stated
that he “served faithfully in that ministry for four (4) years” immediately
preceding the incident. “Quite a few
times” over that period of time he volunteered his expertise and services for
other construction work on Calvary’s premises.
Specifically, Scharf wired what is now called the old sanctuary and
office spaces with audio/visual technology via a tunnel he constructed under
the parking lot. Immediately following
that project, which involved “put[ting] everything in from overhead down to
each station,” Scharf commenced another wiring job “going . . . from
the sanctuary to the youth building.”
Scharf never received monetary compensation for his work at the church.

In January 2005, a large remodeling project of the chapel
and its related facilities began. The
corporate board of Calvary approved the construction project, held meetings
regarding what needed to be done, and authorized Nelson to be in charge of the
project.

Thereafter, Nelson approached Scharf and asked him, as an
audio/visual technician, to install various telephone, facsimile, and DSL
communication cables throughout the chapel and connect them to the new offices,
which were being constructed as part of the renovation and remodeling of the
premises. Nelson explained that the
cables were to be pulled to specific locations in specified rooms, and that he
wanted the new audio/visual technology to be set up the way Scharf had set up
the wiring in the old building.

Nelson further informed Scharf that his work at the
church had to be finished before 7:00 a.m. on Monday, January 24, 2005, because
Nelson had scheduled an appointment with a telecommunications company to come
to the church at that time. Nelson had
agreed that the wiring would be ready for the telephone company by that
morning. Although Scharf told Nelson,
“that’s really pushing it” and he would have to “revamp [his] schedule,” he
nonetheless assured Nelson that “[w]e’ll find a way to get it done if we’ve got
to work all night.”href="#_ftn7" name="_ftnref7"
title="">[7] Scharf understood it was imperative that he
finish his work before the arrival of the telecommunications company because
the services of the telecommunications company depended upon the basic
technological infrastructure that he was charged with installing. Further, Scharf was also aware that the
appointment with the telecommunications company had originally been set for a
prior date, but due to construction delays it was rescheduled for Monday, a
change for which Nelson incurred a monetary penalty.

In performing his work as part of the January 2005
project, Scharf had full access to the supply of tools owned by Calvary, which
included ladders, drills, lighting fixtures, and whatever else he wanted to
use. When asked in a deposition whether
he considered himself an employee or volunteer for the purpose of his work with
the January 2005 remodeling project, Scharf replied it was a part of his
ministry.

Throughout the week leading up to the incident, Scharf
and an employee worked intermittently at the chapel. However, on the Sunday of the incident,
Scharf was alone at the church when he commenced work at approximately 4:30
p.m.; at this point, Scharf planned to be finished with his responsibilities
upon the completion of one last “pull” of the cable lines.

The last pull was to be made from the new secretarial
office. Once inside that office, Scharf
placed a five- or six-foot ladder on top of a “work counter with cabinets that
[were] built into the wall.” After
appropriately aligning the ladder with the top of the wall, Scharf climbed the
ladder until he reached the step “second from the top.” He removed two ceiling tiles to access the
area above the ceiling. Extending his
head approximately two feet above the ceiling, Scharf attempted to establish a
“hole guide” for drilling holes in the top “sill” of the wall, which is the top
foot of a wall located above the ceiling.
In doing so, he discovered that one hole had already been drilled,
presumably for this purpose, so he only had to make one other hole. After making the hole, he pushed the cable
lines down the interior of the wall.

In a deposition, Scharf was asked if he had any reason to
climb above the ceiling. He explained
that when the wire does not fall after the initial push, one must generally get
up on the wall and determine why the wire is not falling toward its intended
target. Scharf testified that he
encountered this precise problem here and was unable to see the other side of
the wall by using the ladder alone.
Therefore, in order to determine what, if anything, was precluding the
wires from falling down inside the wall, Scharf took his feet off the ladder
and pulled himself onto the wall.

With his midsection lying on top of the wall and his body
positioned slightly crooked along the sill to give him more stability, Scharf
saw a refrigerator and shower in the adjacent room. Scharf also noticed that the wallboard on the
shower room side of the wall did not go all the way up to the sill, leaving the
top portion of the wall open. As a
result, his wires were not forced down into the interior of the wall, but were
left sticking out into the air. This is
Scharf’s last recollection of the day of the incident.

Scharf testified that he had performed the
top-of-the-wall balancing maneuver on thousands of prior occasions. He indicated that in performing this type of
work, it is standard practice to put one’s stomach and body weight on top of a
wall as he did on the day of the incident.


When asked whether or not he recalled or noticed any
instability with the wall within the seconds that he was lying atop the wall,
Scharf testified: “I can’t remember
any. I mean, [it was] too quick.” Although Scharf does not have any idea >how he fell, when asked whether he knows
that he in fact fell, Scharf replied, “I feel like I fell.”

Nelson testified in his deposition that prior to the
incident he had never informed Scharf about the existence of the shower located
in the adjacent room. He testified
further that he is not aware of any fact that would indicate Scharf knew there
was a shower behind the wall.

III. DISCUSSION

A General
Standard of Review Regarding Motion for Summary Judgment

A trial court properly grants summary judgment when there
are no triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) “The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.
[Citation.]” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.)

name="#HN;F11"> A
moving party defendant is entitled to summary judgment if it establishes a
complete defense to the plaintiff’s causes of action, or shows that one or more
elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 849.) A moving
party defendant bears the initial burden of production to make a prima facie
showing that no triable issue of material fact exists. Once the initial burden of production is met,
the burden shifts to the responding party plaintiff to demonstrate the
existence of a triable issue of material fact.
(Id. at pp. 850-851.) From
commencement to conclusion, the moving party defendant bears the burden name="sp_4041_848">of persuasion that there is no
triable issue of material fact and that the defendant is entitled to judgment
as a matter of law. (Id. at p.
850.)

On appeal following the grant of summary judgment, we review
the record de novo, considering all of the evidence except that to which
objections were made and sustained. (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Ibid.) “We need not concern ourselves with the trial
court’s reasons for granting summary judgment.
‘[W]here there is no genuine issue of material fact, the appellate court
should affirm the judgment of the trial court if it is correct on any theory of
law applicable to the case, including but not limited to the theory adopted by
the trial court. [Citations.] Thus, we must affirm so long as any of the
grounds urged by [the moving party], either here or in the trial court,
entitles it to summary judgment.
[Citation.]’ [Citation.]” (Le
Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049,
1057, fn. 10.)

name="#HN;F12"> “Our
review of the summary judgment motion requires that we apply the same
three-step process required of the trial court.
[Citation.] ‘First, we identify
the issues framed by the pleadings since it is these allegations to which the motion
must respond by establishing a complete defense or otherwise showing there is
no factual basis for relief on any theory reasonably contemplated by the
opponent’s pleading. [Citations.] [¶]
Secondly, we determine whether the moving party’s showing has
established facts which negate the opponent’s claim and justify a judgment in
movant’s favor. [Citations.] . . . [¶]
. . . [T]he third and final step is to determine whether the
opposition demonstrates the existence of a triable, material factual
issue. [Citation.]’ [Citation.]”
(Todd v. Dow (1993) 19 Cal.App.4th 253, 258.)

B. Summary
of Holding

For the reasons discussed below, we reverse the summary
judgment as to the Church defendants.
Regardless of whether the issue of duty is analyzed under the >Rowland v. Christianhref="#_ftn8" name="_ftnref8" title="">>[8]
line of cases or under Privette and
its progeny, defendants failed to submit undisputed facts with supporting
evidence that they did not know nor should have known of the condition (i.e.,
the incomplete construction of the wall in the shower room) and its
risk-creating potential; further, assuming that defendants did know of the
condition and its risk-creating potential to individuals in Scharf’s position,
triable issues exist as to the other considerations of duty.href="#_ftn9" name="_ftnref9" title="">[9] In addition, our record demonstrates that
defendants failed in their burden of production as to causation and implied
assumption of the risk. As to Coop, we
conclude that summary judgment was properly granted.

C. Duty of
Care

1. Substantive
Law

“The threshold element of a cause of action for
negligence is the existence of a duty to use due care toward an interest of
another that enjoys legal protection against unintentional invasion. [Citations].”
(Bily v. Arthur Young & Co.
(1992) 3 Cal.4th 370, 397.) “[W]hether a
duty of care exists in a given circumstance, ‘is a question of law to be
determined [by the court] on a case-by-case basis.’ [Citation.]”
(Parsons v. Crown Disposal Co.
(1997) 15 Cal.4th 456, 472.)

“As a general principle, a ‘defendant owes a duty of care
to all persons who are foreseeably endangered by his conduct, with respect to
all risks which make the conduct unreasonably dangerous.’” (Tarasoff
v. Regents of University of California (1976) 17 Cal.3d 425, 434-435.) Thus, a person “is liable for injuries caused
by his failure to exercise reasonable care in the circumstances.” (Rowland,
supra, 69 Cal.2d at p. 112; see Civ. Code, § 1714.) This duty to conform to the legal standard of
reasonable conduct in light of the apparent risk is always the same in
negligence cases. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th
269, 279 (Vasquez), citing Prosser
& Keeton, Torts (5th ed. 1984) § 53, p. 356.) The existence of a duty “is not an immutable
fact, but rather an expression of policy considerations leading to the legal
conclusion that a plaintiff is entitled to a defendant’s protection.” (Ludwig
v. City of San Diego (1998) 65 Cal.App.4th 1105, 1110.)

“At
common law the duties of landowners and occupiers were based upon artificially
classifying the plaintiff as either a trespasser, licensee, or invitee.” (Mora
v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 778.) A “trespasser” is generally one who enters or
remains upon land without a privilege to do so.
(Rowland, supra, 69 Cal.2d at
p. 113.) Whether someone is an invitee
or a licensee depends upon “‘the purpose for which a person is upon the
premises of another . . . .’”
(Bylling v. Edwards (1961) 193
Cal.App.2d 736, 739, quoting Popejoy v.
Hannon (1951) 37 Cal.2d 159, 169.)
Moreover, “an invitee is one who by express or implied invitation is
brought or comes on to the premises for the land possessor’s advantage, or
their mutual benefit or common interest.”
(Beauchamp v. Los Gatos Golf
Course (1969) 273 Cal.App.2d 20, 27 (Beauchamp).)

Although the California Supreme Court curtailed these
common law classifications in Rowland,
it nevertheless reaffirmed the common law notion that the purpose of a
plaintiff’s presence on the land, though not determinative, may have some
bearing on the issue of liability. (>Rowland, supra, 69 Cal.2d at p. 119.) Accordingly, “[t]his purpose therefore must
be considered along with other factors weighing for and against the imposition
of a duty . . . .” (>Ann M. v. Pacific Plaza Shopping Center (1993)
6 Cal.4th 666, 675, fn. omitted, disapproved on another point in >Reid v. Google, Inc. (2010) 54 Cal.4th
512, 527, fn. 5.) As one court
explained: “‘[W]hether a possessor of
the premises has acted as a reasonable man toward a plaintiff, in view of the
probability of injury to him, will tend to involve the circumstances under
which he came upon defendant’s land; and the probability of exposure of
plaintiff and others of his class to the risk of injury; as well as whether the
condition itself presented an unreasonable risk of harm, in view of the
foreseeable use of the property.’” (>Williams v. Carl Karcher Enterprises, Inc.
(1986) 182 Cal.App.3d 479, 487, overruled on another point in >Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 574, 580, quoting Beauchamp,
supra, 273 Cal.App.2d at p. 25.)

Rowland thus fashioned
the following rule applicable to the facts in that case: “Where the occupier of land is aware of a
concealed condition involving in the absence of precautions an unreasonable
risk of harm to those coming in contact with it and is aware that a person on
the premises is about to come in contact with it, the trier of fact can
reasonably conclude that a failure to warn or to repair the condition
constitutes negligence. Whether or not a
guest has a right to expect that his host will remedy dangerous conditions on
his account, he should reasonably be entitled to rely upon a warning of the
dangerous condition so that he, like the host, will be in a position to take
special precautions when he comes in contact with it.” (Rowland,
supra, 69 Cal.2d at p. 119.)href="#_ftn10"
name="_ftnref10" title="">[10]

The fact that a condition of property may be open and
obvious does not necessarily negate a
defendant’s duty of care. In >Beauchamp, supra, 273 Cal.App.2d 20, the
plaintiff, an experienced golfer wearing golf shoes with half-worn spikes,
slipped and fell on a concrete path, or veranda, leading from the parking lot
to the starting area. (>Id. at p. 23.) Although safer means of access to the course
were available, it was common practice for golfers to put their golf shoes on
in the parking area and walk on this concrete path. (Id.
at pp. 23-24.) The plaintiff sued the
owners of the golf course for damages and the trial court granted the
defendant’s motion for nonsuit. (>Id. at p. 24.) The Court of Appeal reversed.

Based upon the principles enunciated in >Rowland, the Beauchamp court framed the factual issue as one involving “whether
the club foresaw or reasonably should have foreseen that as constructed and
maintained, there was an unreasonable risk of harm to golfers using the veranda
so constructed with due care, wearing golf shoes with metal spikes. Whether or not a different facility should or
could reasonably have been provided, should warning of the danger of slipping
have been given to users wearing golf shoes with spikes?” (Beauchamp,
supra, 273 Cal.App.2d at p. 31.)
“[T]he obvious nature of the risk, danger or defect . . .
[cannot] be said per se to abridge
the invitation given by the possessor of land, or to derogate his [or her] duty
of care, so as to make [the possessor’s] liability solely a matter of law to be
determined on a nonsuit.” (>Id. at p. 33.)

A similar conclusion was reached in Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th
1179. In that case, the plaintiff
brought a negligence/premises liability cause of action against a property
owner/possessor, after she slipped and fell on the property owner’s wet
driveway. In reversing summary judgment
for the landowner, the Court of Appeal began its analysis with the acknowledgment
that “the allegedly dangerous condition plaintiff encountered—the water and
wetness at the area (sidewalk or driveway) where she fell—was ‘open and
obvious[,]’. . . and plaintiff—who admitted having seen the wetness
before stepping on it—did not dispute this.”
(Id. at p. 1184.)

On the question of “duty,” the court noted that the fact
“that the hazard was open and obvious did not relieve defendant of all possible
duty, or breach of duty, with respect to it.”
(Martinez v. Chippewa Enterprises,
Inc., supra, 121 Cal.App.4th at p. 1184.) More specifically, the court explained that
“the pavement appears to have provided a principal if not sole access way from
the street to defendant’s building,” and consequently “the obviousness of a
condition does not necessarily excuse the potential duty of a landowner, not
simply to warn of the condition but to rectify it.” (Id.
at pp. 1184-1185.) Accordingly, pursuant
to the “modern and controlling law on this subject,” the court held that
“‘although the obviousness of a danger may obviate the duty to >warn of its existence, if 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), there may be a duty to remedy the danger . . . .’ [Citations.]”
(Id. at p. 1184.) Moreover, “‘“[I]t is foreseeable that even an
obvious danger may cause injury, if the practical necessity of encountering the
danger, when weighed against the apparent risk involved, is such that under the
circumstances, a person might choose to encounter the danger. . . .”’ [Citation.]”
(Lopez v. Superior Court
(1996) 45 Cal.App.4th 705, 716-717, quoting Krongos
v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

Thus, under Rowland
and its construing case law, a landowner owes a duty of care to protect
against injury to persons foreseeably using the property if he or she knows or
should know that a condition of property, when considering all of the
circumstances, creates an unreasonable risk of injury; and, 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.

This general rule and its relevant considerations are no
different under the Privette line of
cases. The most
pertinent of these cases is Kinsman,
supra, 37 Cal.4th 659.href="#_ftn11" name="_ftnref11" title="">[11]
In that case, the Supreme Court confronted the question of “when, if
ever, is a landowner^{[href="#_ftn12"
name="_ftnref12" title="">[12]]}
that hires an independent contractor liable to an employee of that contractor
who is injured as the result of hazardous conditions on the landowner’s
premises?” (Kinsman, supra, at p. 664.)
There, an employee of an independent contractor hired by Unocal to
perform scaffolding work was exposed to airborne asbestos. Years later he developed mesothelioma; he
sued Unocal. Following a detailed analysis
of Privette, and its citing
authority, the court discussed Rowland
and the Restatement Second of Torts, section 343, and their applicability to
the case at hand. (Kinsman, supra, at pp. 672-673.)
First, the court acknowledged that where there is a known safety hazard
on the hirer’s premises that can be addressed by the independent contractor
through the implementation of reasonable safety precautions, liability should
not attach to the hiring property owner.
(Id. at pp. 673-674.)

The Kinsman
court continued by stating: “However, if
the hazard is concealed from the contractor, but known to the landowner, the
rule must be different. A landowner
cannot effectively delegate to the contractor responsibility for the safety of
its employees if it fails to disclose critical information needed to fulfill
that responsibility, and therefore the landowner would be liable to the
contractor’s employee if the employee’s injury is attributable to an
undisclosed hazard. Nothing in the >Privette line of cases suggests the
contrary. . . . [T]he hirer’s
liability in such circumstances would be derived from the hirer’s rather than
the contractor’s negligence. [¶] . . . [W]hen the landowner knows or
should know of a concealed hazard on its premises, then under ordinary premises
liability principles, the landowner may be liable for a resultant injury to
those employees.” (Kinsman, supra, 37 Cal.4th at p. 674, fn. omitted.)

The court concluded “that a landowner that hires an href="http://www.fearnotlaw.com/">independent contractor may be liable to
the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of
a latent or concealed preexisting hazardous condition on its property, the
contractor did not know and could not have reasonably discovered this hazardous
condition, and the landowner failed to warn the contractor about this
condition.” (Kinsman, supra, 37 Cal.4th at p. 664, fn. omitted.)

In sum, under Rowland
or Kinsman, the law regarding the
duty of a landowner/hirer is, for our purposes, the same. A landowner/hirer owes a duty of care to warn
an invitee/contractor of a condition which the landowner/hirer knows or should
know, under all of the circumstances, creates an unreasonable risk of injury to
those using the property in a foreseeable manner.

As to a condition which poses an obvious danger, a
landowner maintains a duty to protect the invitee against the risk of href="http://www.sandiegohealthdirectory.com/">injury if “‘“the practical
necessity of encountering the danger, when weighed against the apparent risk involved,
is such that under the circumstances, [the invitee] might choose to encounter
the danger. . . .”’” (>Lopez v. Superior Court, supra, 45
Cal.App.4th at p. 716.) And under >Kinsman, a landowner/hirer has an equal duty to protect against a
contractor’s injury if the contractor’s knowledge of the hazard is inadequate
to prevent injury. (Kinsman, supra, 37 Cal.4th at p. 673.)

2. Application
of Substantive Law to the Issue of Duty as Presented by the Summary Judgment
Motion

name="SDU_15"> “‘The purpose of a href="http://www.fearnotlaw.com/">summary
judgment proceeding
is to permit a party to show that material factual claims arising from the
pleadings need not be tried because they are not in dispute.’ [Citation.]
Materiality depends on the issues in name="SDU_109">the case, and what matters are at issue is determined by the
pleadings, the rules of pleadings, and the substantive law. [Citation.]
‘The complaint measures the materiality of the facts tendered in a
defendant’s challenge to the plaintiff’s cause of action.’ [Citation.]”
(Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172, italics
added.)

Here, as part of their allegations relative to
defendants’ “duty of care,” Scharf alleged that he “was working inside the
upper ceiling area . . . installing the overhead telephone and
technical cabling . . . . Adjacent to this area was a shower
stall, which [Scharf] now believes may not [have] been constructed to code;
missing . . . dry wall . . . . [¶]
. . . [Scharf] alleges that this same ceiling area and/or the
walls (including the dry wall areas) in which [Scharf] was working
. . . constituted previous substandard construction . . .
which was left substandard and incomplete, creating a hazardous condition;
and/or was a preexisting hazardous condition that had been constructed, created
and/or maintained by [Nelson] and [Calvary].
[¶] . . . Yet,
Defendants . . . knew that this faulty, dangerous, unfinished,
substandard, unsafe condition, constituted at least one of the areas in which
[Scharf] would be forced to traverse in order to complete his requested job
duties. Notwithstanding, not one of the
Defendants had warned [Scharf] of this condition, . . . despite their
knowledge that [Scharf] would be forced to work in this area in order to
complete the work requested by [Nelson], within the time deadline dictated by
[Nelson].”

name="SDU_16"> To be entitled to summary judgment as it relates to the
element of duty of care, defendants therefore had to negate the above “material
factual allegation.” (Crouse v.
Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534-1535 [the
burden rests with the defendant to affirmatively negate the existence of a
duty].)

name=B018162024329715> To negate this material factual allegation as it pertains
to the issue of duty, defendants must set forth those material facts that would
entitle them to judgment as a matter of law.
As explained in Teselle,
this is accomplished through the undisputed statement of material facts: “The purpose [of summary judgment] is carried
out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring
the moving party to include in the moving papers ‘a separate statement setting
forth plainly and concisely all material facts which the moving party contends
are undisputed . . . [together with] a reference to the supporting evidence.’ ‘The complaint measures the materiality of
the facts tendered in a defendant’s challenge to the plaintiff’s cause of
action’ [citation], hence the moving party’s separate statement must address
the material facts set forth in the complaint.” (Teselle v. McLoughlin, supra, 173
Cal.App.4th at p. 168, italics added.)
As set forth in United Community Church v. Garcin (1991) 231
Cal.App.3d 327, 335, the purpose of the separate statement is “to afford due
process to opposing parties . . . .” “Where a remedy as drastic as summary
judgment is involved, due process requires a party be fully advised of the
issues to be addressed and be given adequate notice of what facts it must rebut
in order to prevail.” (San Diego
Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.)

name="#HN;F16"> Under
the present facts, it was incumbent on defendants to set forth in their
separate statement of undisputed facts clear statements negating the element of
duty. name="SDU_17">As
our discussion of the law of duty indicates, Scharf must establish that
defendants knew or should have known of the condition and that it posed an
unreasonable risk of injury.href="#_ftn13" name="_ftnref13" title="">>[13] To negate this aspect of duty, defendants
must set forth in their separate statement of undisputed facts (supported by
competent evidence) that they did not know nor should have known of the
condition and its dangerousness. This
the Church defendants did not do.

While the Church defendants did set forth undisputed
facts that they did not control or direct Scharf as to the manner in which the
job was to be completed, there is nothing in the separate statement indicating
that they did not know of the condition or its risk-creating potential. The closest statement addressing this issue
is undisputed material fact No. 16, wherein it is stated: “Nelson had no experience as an electrician;
his only construction-related experience was as a painter.”href="#_ftn14" name="_ftnref14" title="">>[14] This statement simply does not address the
issue of whether the Church defendants knew or should have known about the
condition and its risk-creating potential.
As such, the Church defendants failed to meet their initial burden of
production as it relates to this all important consideration.

We now move to discuss the other factual considerations
in analyzing duty, bearing in mind that summary judgmentname="#HN;F17"> is a “drastic remedy.” (See Mateel Environmental Justice
Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) As stated in Anderson v. Metalclad
Insulation Corp. (1999) 72 Cal.App.4th 284, 289 and 290: “The defendant must demonstrate that under no
hypothesis is there a material factual issue requiring trial. [Citation.]
If the defendant does not meet this burden, the motion must be
denied.” (Italics added.)

The Church defendants argue that even if they were aware
of the missing wallboard on the shower room side of the wall, Nelson had no
duty to warn or protect Scharf against it if that condition was not dangerous;
i.e., if it did not create an unreasonable risk of injury to those using the
property in a foreseeable manner.
“‘“[A]s to what constitutes a dangerous or defective condition no
hard-and-fast rule can be laid down, [and] each case must depend upon its own
facts.” [Citation.]’” (Kasparian
v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28, fn. omitted.) In determining whether a condition creates an
unreasonable risk of injury to foreseeable users, we must take into
consideration not only the condition itself, but also the likelihood and manner
in which individuals may foreseeably encounter it.href="#_ftn15" name="_ftnref15" title="">[15] As such, if “‘sufficient evidence has been
presented so that reasonable minds may differ as to whether the defect is
dangerous, the court may not rule . . . the defect is not dangerous
as a matter of law.’” (>Ibid., fn. omitted.)

Here, the record clearly supports a determination that
Scharf was a “business invitee” at the time of injury. “An invitee or business visitor is generally
defined as a person who is invited or permitted to enter or remain on land in
the possession of another for a purpose directly or indirectly connected with
business dealings between them.” (>Clawson v. Stockton Golf Etc. Club
(1963) 220 Cal.App.2d 886, 889.) Scharf
entered the premises upon Nelson’s request that Scharf volunteer his expertise
in the remodeling of the church, and remained thereon after agreeing to do
so. Moreover, the injury at issue
occurred while he was acting within the scope of this invitation, specifically,
as he attempted to complete the installation of the communication network.

Under >Kinsman, Scharf, as a volunteer
contractor, was clearly performing work in an area contemplated under his
agreement with Nelson. As such, Scharf
was a foreseeable user of the property dealing with the property in a
reasonably foreseeable manner.

The evidence demonstrates that the shower room side of
the wall was unfinished. Defendants’
expert declared that the wallboard on the shower room side of the wall was
approximately two feet shorter than the wallboard on the office side of the
wall. Although defendants’ expert
declared that the subject wall was nonload bearing and not required to have
full-height drywall, plaintiffs’ experts declared that the wall was not built
to code and lacked proper anchoring and bracing. Plaintiffs’ experts further indicated that
the wall was not documented in any of the plans and was not permitted.

Scharf stated that when he pushes wires through the holes
at the top of a wall, they will normally hit the opposing wallboard and move
down the interior of the wall to the intended electrical outlet. He testified that on this occasion when he
pushed the wires they did not move down the wall. In order to determine what the problem was,
he hoisted himself onto the sill on top of the wall and noticed that the wallboard
on the shower room side of the wall did not go to the top and that his wire was
escaping and dangling out into the shower room.
Upon redirecting the wire, he fell.
He further declared that he “would have never been forced” to get into
the area above the ceiling had the wire not been allowed to escape. (Italics omitted.)

While the condition of an unfinished wall might not
create an unreasonable risk of injury under most circumstances, it nonetheless
can create a significant risk of injury to individuals “pulling wire” to
various electrical outlets, who depend upon certain structural components being
present. Here, there were no plans
showing the shower room or the unfinished nature of the wall to which Scharf
could look for guidance. The electrical
outlet to which the wire was to be pulled had been previously cut out from the
wallboard in the secretarial office and had been discussed with Nelson. Scharf was informed that the telephone
company was coming the following morning and that the wiring needed to be done
by then. Upon realizing that the wires
were not moving down the wall as expected, it is reasonable that an individual
in Scharf’s line of work would attempt to determine the nature of the problem
by hoisting himself onto the top of the sill to investigate. At the time of the incident, the only access
into the room with the unfinished wall was a doorway which was blocked by a
refrigerator and microwave.

Because Scharf was not
informed of the doorway to the shower room—a doorway which would have provided
Scharf with a means to deal with the issue from the shower room side of the
wall—it is foreseeable that he would attempt to deal with the problem in the
manner that he did and, for one reason or another, fall.href="#_ftn16" name="_ftnref16" title="">[16] Given this setting, triable issues of fact
exist as to whether the unfinished wall created an unreasonable risk of injury
to individuals in Scharf’s position, giving rise to a duty on the part of the
Church defendants to either warn of or abate the condition.

Here,
Scharf was using the property in a foreseeable manner consistent with the
reason for his being on the property. In
so doing, he was exposed to a risk of injury because of the unfinished nature
of the shower room wall. And while an
unfinished wall may not create an unreasonable risk of injury to those
encountering it under different circumstances, there is nonetheless under the
present circumstances a triable issue of fact as to whether the condition
created an unreasonable risk of injury to Scharf of which the Church defendants
had a duty to warn or otherwise protect Scharf against. (See Bigbee
v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57 [“One may be held
accountable for creating even “‘the risk of a slight possibility of injury if a
reasonably prudent [person] would not do so.”’”].)href="#_ftn17" name="_ftnref17" title="">[17]

A triable issue of fact also exists as to the obviousness
of the condition and its risk-creating potential. It is clear that Scharf did not know that the
wall of the shower room was unfinished.
It would appear that triable issues exist as to whether the condition
was concealed to such an extent that Scharf was unable to appreciate the
condition and the risk it created until he had already hoisted himself onto the
top of the sill. As such, in order to
discover the defect, he had to expose himself to the risk created by the defect.href="#_ftn18" name="_ftnref18" title="">[18]

Under the
Rowland line of cases, to the extent
Scharf was aware of the dangerous condition and nevertheless encountered it by
climbing onto the wall, his actions must be considered in light of the time
constraints to finish the job by the following morning and the fact that there
was no apparent way of completing the job other than by doing as he did. And given the time frame within which he
gained knowledge of the condition, it was arguably too late to prevent his
injury. (See Kinsman, supra, 37 Cal.4th at p. 673.)

Further,
and assuming that the Church defendants knew of the condition and its
risk-creating potential, the policy considerations set forth in >Rowland, supra, 69 Cal.2d at page 113,
do not negate a finding of duty. As set
forth in Ann M. v. Pacific Plaza Shopping
Center, supra, 6 Cal.4th at page 675, footnote 5, those policy
considerations include “‘the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the moral
blame attached to the defendant’s conduct, the policy of preventing future
harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of insurance for the risk
involved.’”

Within
this context, foreseeability is a question of law for the court. (Scott
v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 516.) A conclusive determination thereof is
appropriate “only if, ‘under the undisputed facts there is no room for a
reasonable difference of opinion.’” (>Bigbee v. Pacific Tel. & Tel. Co.,
supra, 34 Cal.3d at p. 56.) As
explained by the California Supreme Court: “In pursuing this inquiry, it is well to
remember that ‘foreseeability is not to be measured by what is more probable
than not, but includes whatever is likely enough in the setting of modern life
that a reasonably thoughtful [person] would take account of it in guiding
practical conduct.’ [Citation.] . . . Moreover, it is settled that
what is required to be foreseeable is the general character of the event or
harm—e.g., being struck by a car while standing in a phone booth—not its
precise nature or manner of occurrence.”
(Id. at pp. 57-58.) In analyzing duty, the court’s focus “‘“is
not to decide whether a particular
plaintiff’s injury was reasonably foreseeable in light of a >particular defendant’s conduct, but
rather to evaluate more generally whether the category of negligent conduct at
issue is sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed on the negligent party.” [Citation.]’”
(Scott v. Chevron U.S.A., supra,
at p. 516.) Thus, “foreseeability with
respect to duty is determined by focusing on the general character of the event
and inquiring whether such event is likely enough in the setting of modern life
that a reasonably thoughtful person would take account of it in guiding
practical conduct . . . .”
(Laabs v. Southern California
Edison Co. (2009) 175 Cal.App.4th 1260, 1262 [Fourth Dist., Div. Two].)

Here, the
general nature of the alleged negligent
conduct is the failure of defendants to warn of or ameliorate a concealed
condition which will be encountered by an individual who is working at or above
ceiling height. Clearly, in dealing with
an unexpected condition, there is a foreseeable risk of falling. Defendants concede as much when they state: “Scharf sustained injury while performing an
aspect of his job that carried an inherent risk of injury. Surely no one can contest installing
audiovisual cables through ceilings and walls—often requiring use of a ladder
or otherwise being placed in elevated locations—exposes one to many risks,
including the risk of falling and sustaining injury.”

As to the
“closeness of connection” and “moral blame,” we begin by saying that it is
doubtful that a typical landowner would realize or appreciate the risk created
by an unfinished wall to an individual running audio/visual wiring. In such a scenario, one’s duty under the
factors laid out in Rowland and >Kinsman (premises liability), would
probably be nonexistent. The “closeness
of connection” and “moral blame” factors would weigh against finding a
duty.

Here,
however, assuming the Church defendants knew or should have known of the
condition and its risk-creating potential, the closeness of connection and
moral blame would be patent. Clearly
under such a scenario, if a defendant with knowledge of the condition and its
risk-creating potential had notified Scharf of the condition, he would probably
have taken precautions so as to complete the job in a safe and workmanlike
manner.

In short,
as to the element of knowledge—i.e., whether the landowner knew or should have
known of the condition and its risk-creating potential—we conclude that the
Church defendants failed to meet their initial burden of production. Assuming for purposes of the present motion
that the Church defendants knew or should have known of the condition and its
risk-creating potential, triable issues of material fact exist as to the other
considerations of duty.

3. Defendants Failed to Satisfy Their Initial
Burden of Production That Scharf Impliedly Assumed the Risk

Relying
primarily on this court’s decision in Hamilton
v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 (>Hamilton) [Fourth Dist., Div. Two],
defendants argue that they had no duty to warn or protect Scharf because he
impliedly assumed the risk of injury. We
believe defendants misconstrue Hamilton.

Within
the employment setting, implied assumption of the risk applies when the
plaintiff is injured as a result of “the very negligence that makes [his or
her] employment necessary” and the defendant’s conduct or lack thereof does
nothing to increase the risk of injury inherent in the employment.href="#_ftn19" name="_ftnref19" title="">[19] (Neighbarger
v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538-541 (>Neighbarger).) Defendants failed to satisfy their initial
burden of production in both respects.

The crux
of defendants’ argument is: “Like the
plaintiff in Hamilton . . . Scharf
sustained injury while performing an aspect of his job that carried an inherent
risk of injury. Surely no one can
contest installing audiovisual cables through ceilings and walls—often
requiring use of a ladder or otherwise being placed in elevated
locations—exposes one to many risks, including the risk of falling and
sustaining injury.” As previously
discussed, we fully agree with defendants.
The risk of falling is not only an inherent risk of installing
audio/visual wiring, but also a foreseeable one. Crucial, however, to the issue of assumption
of the risk within the employment setting is whether the plaintiff was injured
by the very hazard he was hired to confront and whether the defendants’ conduct
or lack thereof increased the risk of that already inherent in the
employment. (Neighbarger, supra, 8 Cal.4th at p. 541; Hamilton, supra, 110 Cal.App.4th at pp. 1022-1027.)

In >Neighbarger, the plaintiff was employed
by an oil company as a safety supervisor with special training in
firefighting. (Neighbarger, supra, 8 Cal.4th at p. 535.) A maintenance worker employed by a third
party caused a valve to release a flammable petroleum product. When the plaintiff moved to shut off the
valve, the escaping product ignited, burning the plaintiff. He sued the employer of the maintenance
worker for damages. (>Ibid.)

The trial
court granted the defendant’s summary judgment motion and the Court of Appeal
affirmed, holding that a private safety employee assumes the risk of injury
when the employee responds to emergencies on the job. (Neighbarger,
supra, 8 Cal.4th at p. 536.) Both
the trial and appellate courts further held that the plaintiff’s claim was
barred by the firefighter’s rule. Under
this rule, one who negligently starts a fire owes no duty of care to assure
that the firefighter who responds to the fire is not injured thereby. (Id.
at p. 538.)

The
Supreme Court reversed. In so doing, it explained
that the firefighter’s rule should be viewed as an example of the proper
application of the doctrine of assumption of the risk. (Neighbarger,
supra, 8 Cal.4th at p. 536.) The
court further indicated: “We have never
held that the doctrine of assumption of risk relieves all persons of a duty of
care to workers engaged in a hazardous occupation.” (Id.
at p. 538.)

Although
the firefighter’s rule had been based in part on the fact that a firefighter,
with knowledge of the risks, voluntarily confronts that risk, the >Neighbarger court declared that the rule
can no longer “be said to rest on the plaintiff firefighter’s voluntary
acceptance of a known risk of injury in the course of employment, and we
disregard that element of the justification . . . .” (Neighbarger,
supra, 8 Cal.4th at pp. 539, 541.)
Instead, the Neighbarger court
explained that, in determining whether a duty of care was present, the focus of
the inquiry must be “the nature of the defendant’s activities and the
relationship of the plaintiffs and the defendant to that activity
. . . .” (>Id. at p. 541.) “‘[I]t may be accurate to suggest that an
individual who voluntarily engages in a potentially dangerous activity
. . . “consents to” or “agrees to assume” the risks inherent in the
activity . . . itself . . . . But it is thoroughly
unrealistic to suggest that, by engaging in a potentially dangerous activity
. . . , an individual consents to (or agrees to excuse) a breach
of duty by others that increases the risks inevitably posed by the activity
. . . itself, even where the participating individual is aware of the
possibility that such misconduct may occur.’
[Citation.]” (>Id. at p. 537.)

In
finding that assumption of the risk did not apply to its facts, the court
indicated that while the firefighter’s rule may protect the defendant who
negligently starts a fire from liability based on the starting of the fire, it
does not protect the same defendant from independent acts of negligence. (Neighbarger,
supra, 8 Cal.4th at pp. 538, 541.)
That is, although the firefighter cannot complain about a defendant’s
negligence in starting the fire because it is the very reason for the
firefighter’s employment, the firefighter may complain if the defendant does
some independent act which increases the risk of injury above that which is
already inherent in the employment.

Hamilton is in accord.
There, a probation corrections officer was involved in unarmed defensive
tactics training. (Hamilton, supra, 110 Cal.App.4th at p. 1016.) She was injured when she was performing a
ground fighting maneuver with the instructor.
(Id. at pp. 1017-1018.) She sued the instructor. In affirming summary judgment on implied
assumption of the risk and the firefighter’s rule, the court indicated that the
plaintiff could not complain about receiving an injury while training to do a
physical maneuver which was the “‘“‘“‘“very occasion
for [plaintiff’s] engagement.”’”’”’” (>Id. at p. 1023.) Further, nothing the instructor did during
the training increased the risk of injury otherwise inherent in the maneuver
itself. (Id. at pp. 1026-1027.)

Here, if
Scharf had been hired to remedy the unfinished wall and had fallen in the
process of doing so, and there was no independent act by defendants that
increased the risk of injury, Scharf could not complain; the reason for his
employment would have been to remedy the unfinished wall and defendants would
have done nothing to increase the risk of injury above that already inherent in
that employment. However, such is not
the case under our facts. Here, the
reason for Scharf’s employment was not the repair of an unfinished wall, but
rather the installation of wiring and cables for an audio/visual system. As such, defendants’ assertion of implied
assumption of the risk falls short.

Moreover,
while Scharf could be said to assume some risk of falling in connection with
his work, he does not assume the increased risk of injury that results from the
failure to warn him of or abate a concealed condition of which defendants know
or should know creates an unreasonable risk of href="http://www.sandiegohealthdirectory.com/">injury. By not informing Scharf of the condition, he
was unable to take appropriate precautionary steps so as to safely encounter
the condition, or avoid it. As a result,
defendants’ conduct, or lack thereof, arguably increased the risk of injury
inherent in his work.href="#_ftn20"
name="_ftnref20" title="">[20]

Defendants’
separate statements of undisputed facts with supporting evidence are therefore
deficient in multiple respects in that they do not address these necessary
considerations.

D. The
Church Defendants Failed to Negate the Element of Causation

Defendants argue summary judgment was proper because the
undisputed evidence proves that their failure to advise Scharf of the “shower
room improvement” did not cause his injury.
They contend (1) the reason Scharf suffered injury was his decision to
work in the manner he did, not their failure to tell Scharf about the shower
room, and (2) nothing in the record shows Scharf’s knowledge of the shower room
would have altered his behavior.

In a negligence action the plaintiff must allege the
defendant’s act or omission was a cause of the plaintiff’s injury. (Vasquez,
supra, 118 Cal.App.4th at p. 288.)
The element of causation consists of two separate questions: (1) was the defendant’s conduct the cause in
fact of the plaintiff’s injuries, and (2) are there policy factors that may
preclude the imposition of liability. (>Huitt v. Southern California Gas Co.
(2010) 188 Cal.App.4th 1586, 1596.) The
second question “is a normative or evaluative one that asks whether the
defendant should owe the plaintiff a legal duty of reasonable care under the
circumstances of the case.” (>Vasquez, supra, at p. 288.) Because we have concluded that the relevant
policy considerations suggest that the Church defendants owed a duty to Scharf,
assuming they knew or should have known of the condition and its risk-creating
potential, the second question of causation is already answered.

As to the first component of causation, the question of
cause-in-fact is resolved “if the defendant’s act or omission is ‘>a substantial factor’ in bringing about
the plaintiff’s injury.” (>Vasquez, supra, 118 Cal.App.4th at p.
288.) “‘A substantial factor in causing
harm is a factor that a reasonable person would consider to have contributed to
the harm. It must be more than a remote
or trivial factor. It does not have to
be the only cause of the harm. [¶] Conduct is not a substantial factor in
causing harm if the same harm would have occurred without that conduct.’” (Raven
H. v. Gamette (2007) 157 Cal.App.4th 1017, 1025, quoting CACI No.
430.)

The question of causation is “factual, and thus
constitute questions for the jury.” (>Ewing v. Cloverleaf Bowl (1978) 20
Cal.3d 389, 399.) Ordinarily, this issue
may not be resolved on summary judgment.
(Vasquez, supra, 118
Cal.App.4th at p. 288, citing Nichols v.
Keller (1993) 15 Cal.App.4th 1672, 1687.)
However, while a court may properly examine the causal nexus of the
alleged injury at the demurrer stage (Alejo
v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1190), a grant of summary
judgment is improper unless from the undisputed facts “‘only one reasonable
conclusion could be drawn’” (Pacific
Sunwear of California, Inc. v. Olaes Enterprises, Inc. (2008) 167
Cal.App.4th 466, 484).

Here, as the moving parties, defendants have the burden
of demonstrating as a matter of law 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)(2).) Defendants
argue “[t]he reason why Scharf suffered injury was his decision to work in the
manner he did, not the failure of [defendants] to tell Scharf about the shower
room.” Moreover, they contend that
“Scharf fell because he lost his balance while perched precariously on the sill
of the wall . . . [a]nd nothing in the record shows Scharf’s
knowledge of the shower room would have altered his behavior.”

To support the assertion that the failure to inform
Scharf of the shower room was not a