Filed 5/19/22 Eiges v. All American Asphalt CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

STEPHEN EIGES,

Plaintiff and Appellant,

v.

ALL AMERICAN ASPHALT,

Defendant and Respondent.

B309241

(Los Angeles County

Super. Ct. No. BC648577)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Deirdre Hill, Judge. Reversed.

Law Office of Steve A. Hoffman and Steve A. Hoffman for 

Plaintiff and Appellant.

Murchison & Cumming, Edmund G. Farrell, and Matthew 

E. Voss for Defendant and Respondent.

_________________________________
2

INTRODUCTION

Plaintiff and appellant Stephen1 Eiges used to live at a 

mobile home park in Gardena. Immediately to the south of his 

property was an office and warehouse park (the SVF Property).2 

Immediately to the west of his property was an auto yard

operated under the name Westway Auto Dismantlers, Inc. 

(Westway). In February and March of 2015, respondent All 

American Asphalt (AAA) removed and replaced several thousand 

square feet of cement driveway at the SVF Property. Also in 

2015, there was heavy machinery operating on the Westway

property. 

In a lawsuit he filed in 2017, Eiges alleged that dust both 

from AAA’s driveway work on the SVF Property and heavy 

machinery operating on the Westway property made him ill and 

damaged his property. He sought damages under negligence, 

premises liability, trespass, and nuisance theories. In 2020, after 

taking discovery, AAA moved for summary judgment pursuant to 

Code of Civil Procedure section 437c,3 on all of Eiges’s claims on 

1 Appellant has been variously referred to herein as 

“Stephen,” “Steven,” and “Steve.” We use the spelling from the 

caption in the trial court for consistency.

2 We refer to this property as the SVF Property because SVF 

Broadway Center Corporation was respondent All American 

Asphalt’s customer at the time All American Asphalt performed 

the work there. SVF Broadway Center Corporation is not a party 

to this action.

3 Undesignated statutory references herein are to the Code of 

Civil Procedure.
3

the theory that “there is no evidence of Plaintiff’s exposure to 

toxic cement dust for which AAA is responsible.” Eiges opposed 

the motion and submitted evidence in support, including 

10 exhibits attached to various declarations. AAA objected to 

nine of Eiges’s 10 exhibits.

The trial court determined that AAA’s summary judgment 

evidence was sufficient to shift the burden of production to Eiges. 

It sustained all of AAA’s evidentiary objections and then ruled as 

follows on Eiges’s negligence and premises liability claims:

“Based on the court’s rulings on the evidentiary objections, 

plaintiff has not provided substantial competent evidence to raise 

a triable issue of material fact that defendant breached a duty or 

that defendant was a substantial factor in causing plaintiff 

damages.” It referred back to its conclusions on negligence and 

premises liability in disposing of Eiges’s trespass and nuisance 

claims. Accordingly, it granted AAA’s motion and entered 

judgment that Eiges take nothing from AAA. 

On appeal, Eiges contends that the trial court erred by: 

(1) shifting the summary judgment burden to him; (2) admitting 

all of AAA’s evidence to which he objected; (3) disregarding his 

declaration evidence which was not subject to objection; 

(4) excluding all of his evidence to which AAA objected; and 

(5) finding no triable issues of material fact exist. We reverse the 

judgment based on points (3), (4), and (5), and therefore need not 

address points (1) and (2).

DISCUSSION

We review an order granting summary judgment de novo. 

(Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 810

(Strobel).) In doing so, “we consider all the evidence set forth in

the moving and opposition papers except that to which objections
4

have been made and properly sustained.” (Pipitone v. Williams

(2016) 244 Cal.App.4th 1437, 1452.) Accordingly, we first

consider the trial court’s rulings on AAA’s evidentiary objections

and then consider the merits of AAA’s motion with the inclusion

of evidence as to which AAA’s objections should have been

overruled.

I. The Trial Court Erred in Sustaining AAA’s 

Evidentiary Objections

Fourteen evidentiary objections were asserted below, two 

by Eiges and twelve by AAA. Without explanation, the trial court 

overruled both of Eiges’s objections and sustained all of AAA’s 

objections. The consequence of these rulings was devastating to 

Eiges’s case. The trial court itself recognized that the rulings 

directly resulted in its finding that Eiges failed to “provide[] 

substantial competent evidence to raise a triable issue of material 

fact . . . .” We focus our review on the disposition of Eiges’s 

objections and find error by the trial court.

A. Standard of Review

The parties both recognize that we review the trial court’s 

evidentiary rulings at the summary judgment stage for abuse of 

discretion. (Ducksworth v. Tri-Modal Distribution Services (2020) 

47 Cal.App.5th 532, 544, overruled on other grounds in Pollock v. 

Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932.) 

“ ‘An abuse of discretion will be “established by ‘a showing the 

trial court exercised its discretion in an arbitrary, capricious, or 

patently absurd manner that resulted in a manifest miscarriage 

of justice.’ ” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 605–

606.) “ ‘The discretion of a trial judge is not a whimsical, 

uncontrolled power, but a legal discretion, which is subject to the 

limitations of legal principles governing the subject of its action, 
5

and to reversal on appeal where no reasonable basis for the 

action is shown. [Citation.]’ ” (Westside Community for 

Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) 

Limits on a trial court’s discretion take on heightened importance 

“when, as here, its exercise implicates a party’s ability to present 

its case.” (Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 773 (Sargon Enterprises).) We 

therefore carefully review whether the trial court’s evidentiary 

rulings reflect a permissible exercise of judicial discretion.

B. Discussion

Because the trial court failed to specify the rationale for its 

rulings, we are left to divine its reasoning on our own. We are at 

a loss to do so. The trial court’s evidentiary rulings appear 

contrary to governing legal principles and prevented Eiges from 

presenting his case. For the reasons that follow, we find that, to 

the extent the trial court considered and exercised discretion in 

sustaining all of AAA’s evidentiary objections, it abused that 

discretion.

i. Did the Trial Court Adequately Consider 

AAA’s Objections Before Sustaining 

Them?

The trial court’s failure to explain why it 

categorically sustained AAA’s objections, despite promising to do 

so, raises doubt as to whether its rulings were well founded. At 

the hearing on AAA’s motion, Eiges asked the court to explain 

the grounds for its tentative ruling sustaining all of AAA’s 

objections. This was necessary because AAA’s objections were of

the “kitchen sink” variety. Each included the same six generic 
6

grounds4 followed by one or more additional grounds that either 

(i) reiterated one of the generic grounds with minimal 

elaboration, or (ii) asserted some non-substantive failure 

(e.g., noncompliance with Cal. Rules of Court, rule 3.1350(g)). 

The trial court acknowledged that its tentative did not state the 

grounds but offered that, “you know, for one reason or another, 

all of them were sustained . . . .” After some colloquy that 

provided no definitive explanation as to why any particular 

objection was sustained,5 the trial court said “[o]kay. The court 

will be more specific as to each objection and ground.” But the 

court did not follow through on this commitment in its minute 

order. 

4 These were: “Insufficient foundation. (Evid. Code §§ 403, 

405.) Calls for speculation. (Evid. Code §§ 702, 800.) Hearsay. 

(Evid. Code § 1200.) Manifestly Irrelevant. (Evid. Code §§ 210, 

350, 351.) Writing is not properly authenticated. (Evid. Code 

§§ 1400, 1401.) Probative value is substantially outweighed by 

the probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.

(Evid. Code § 352.)” 

5 Much of the discussion concerned Eiges’s presentation of 

exhibits common to multiple declarations by attaching the 

exhibits after all of the declarations instead of to each one 

separately. The trial court seemingly endorsed this practice 

when, after Eiges’s counsel explained “attaching the same exact 

photographs four times would have been a big, cumbersome 

waste,” the court replied “[o]kay, thank you. I hear you on that 

one.” 
7

We recognize that trial courts are under no general 

obligation to state the reasons for their evidentiary rulings. 

(Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 512, 

fn. 15, disapproved on other grounds in Noel v. Thrifty Payless, 

Inc. (2019) 7 Cal.5th 955, 986, fn. 15.) However, under the 

particular facts here, a more detailed ruling would have been 

necessary to give us confidence that the court indeed exercised its 

discretion. (Cf. Twenty-Nine Palms Enterprises Corp. v. Bardos

(2012) 210 Cal.App.4th 1435, 1447 (Twenty-Nine Palms)

[“Although summarily ruling on numerous evidentiary rulings is 

a common labor-saving practice in law and motion courts, the 

objections in this case needed individual attention”].) This is not 

a case where the reasons for granting the objections were selfevident. Specifically, the rulings were dispositive in adjudging 

Eiges’s claims against AAA, but AAA’s objections were generic 

and included multiple grounds, making it impossible to 

determine the basis on which the trial court relied. Most of the 

summary judgment hearing concerned the evidentiary rulings

but yielded no satisfactory explanation as to the basis for any,

and the trial court promised to articulate a basis for its rulings

but then failed to do so. Under these circumstances, we are 

deeply concerned that the trial court did not adequately consider 

AAA’s objections in ruling on them.

Our concerns are validated by decisions of our sister courts 

addressing blanket rulings excluding summary judgment 

evidence where the successful objections included frivolous 

grounds. (See, e.g., Nazir v. United Airlines, Inc. (2009) 

178 Cal.App.4th 243, 255–256 [trial court ruling that summarily 

sustained 763 out of 764 evidentiary objections, many of them 

frivolous, was abuse of discretion]; Greenspan v. LADT LLC
8

(2010) 191 Cal.App.4th 486, 522 (Greenspan) [abuse of discretion 

found where trial court’s unexplained ruling sustaining all but 

one of defendants’ objections to plaintiff’s exhibits, where 

multiple objections were made to most exhibits, was “cryptic”]; 

Twenty-Nine Palms, supra, 210 Cal.App.4th at pp. 1447–1449 

[sustaining all of plaintiff’s evidentiary objections without 

reasoning constituted abuse of discretion where some of the 

objections were “unreasonable”].) In effect, frivolous objections 

serve an unintended quality assurance function because 

sustaining them indicates that “the trial court did not consider 

the individual objections.” (Twenty-Nine Palms, supra, at 

p. 1447.)6

Here, for the reasons more fully discussed below, many of 

the grounds AAA advanced for objection were frivolous, further 

indicating that the trial court inadequately considered AAA’s 

objections.

We are also troubled by the appearance that the identity of 

the person making the objection, and not substantive merit, was 

determinative of the trial court’s rulings. In contrast to AAA’s 

many frivolous but successful objections, Eiges made targeted, 

well-founded objections that were overruled (again without 

6 The Supreme Court in Reid v. Google (2010) 50 Cal.4th 512 

admonished litigants “to raise only meritorious objections to 

items of evidence that are legitimately in dispute and pertinent 

to the disposition of the summary judgment motion” and warned 

of “informal reprimands or formal sanctions for engaging in 

abusive practices.” (Id. at p. 532.) As shown in Nazir, 

Greenspan, and Twenty-Nine Palms, another potential 

consequence of making frivolous objections is introducing a new 

ground for reversal on appeal.
9

explanation). Both of Eiges’s objections included a hearsay 

objection to AAA documents that were not properly 

authenticated. These documents—AAA’s purported contract for 

work at the SVF Property and purported daily work reports for 

the same—were attached to a declaration of AAA’s counsel 

declaring them “true and correct” copies of the originals but 

offering no other basis for their admission aside from a 

boilerplate claim of “personal knowledge of the facts stated in this 

declaration.” 

Of course, these documents are inadmissible hearsay 

unless subject to an exception. (Evid. Code, § 1200, subds. (a), 

(b); Faigin v. Signature Group Holdings, Inc. (2012) 

211 Cal.App.4th 726, 749.) The only relevant exception for which 

the documents might qualify is the business records exception 

contained in section 1271 of the Evidence Code. But none of the 

facts necessary to show the applicability of that section are found

in AAA’s counsel’s declaration. As such, the business exception 

was not established. (See Sanchez v. Hillerich & Bradsby Co.

(2002) 104 Cal.App.4th 703, 720 [“[Counsel’s declaration] did not

specify that he was the custodian of these exhibits, or that these

documents were prepared in the regular course of business, or

that he personally prepared these documents or knew of the

conditions under which they were prepared so that he could

verify their trustworthiness . . . [¶] The trial court correctly 

ruled that they were inadmissible”].) A trial court’s discretion in 

admitting or excluding evidence is bounded by the legal 

principles reflected in the Evidence Code. (Sargon Enterprises, 

supra, 55 Cal.4th at p. 773.) Holding one party, but not the 

other, to its requirements would not be a proper exercise of 

judicial discretion.
10

ii The Trial Court’s Rulings on AAA’s 

Objections Were an Abuse of Discretion 

Because They Fell Outside the Limits of

the Governing Legal Principles

Objections Based on Format of Presentation (All Objections).

Each of AAA’s objections included some technical format 

ground. The only rule AAA cited in support of these format

objections is California Rules of Court, rule 3.1350(g):

“If evidence in support of or in opposition to a motion exceeds 

25 pages, the evidence must be separately bound and must 

include a table of contents.” 

To the extent that Eiges failed to comply with California 

Rules of Court, rule 3.1350(g), it would not, standing alone, 

provide a basis for sustaining AAA’s objections. We have held 

that noncompliance with rule 3.1350’s separate statement 

requirements does not warrant an adverse summary judgment 

ruling absent extenuating circumstances, notwithstanding 

section 437c, subdivision (b)’s provision that “failure to comply 

with th[e] requirement of a separate statement may in the court’s 

discretion constitute a sufficient ground” for granting or denying 

the motion. (See, e.g., Collins v. Hertz Corp. (2006) 

144 Cal.App.4th 64, 74 [discussing cases].) This is a fortiori true 

for rule 3.1350(g) violations, as section 437c does not authorize an 

adverse ruling based on failure to properly bind exhibits. To the 

extent the trial court based its decision on rule 3.1350(g), it was 

an abuse of discretion.

Objections to Deposition Excerpts (Objections 9–12)

Eiges offered excerpts of depositions of Mitali Datta and 

Rodolfo Chacon, inspectors for the South Coast Air Quality 
11

Management District (AQMD), and of Dr. Jennifer Chi-Ching 

Wang and Patricia Naylor, N.P., medical professionals that 

treated Eiges after the exposure alleged in his complaint. AAA’s 

objections to these were on its six generic grounds and California

Rules of Court, rule 3.1350(g) only. Tellingly, AAA makes no 

attempt to defend these objections on appeal. We do not see how 

it could. First, AAA’s rote foundation, speculation, hearsay, and 

Evidence Code section 352 objections are entirely unsupported. 

To the extent they applied to any specific portion of the 

deponents’ testimony, AAA did not specify (a violation of 

Cal. Rules of Court, rule 3.1354(b)). In any event, the objections 

plainly cannot apply to all of their testimony and the objections 

therefore could not serve as a basis for excluding the deposition 

transcripts entirely. (See Ambriz v. Kelegian (2007) 

146 Cal.App.4th 1519, 1528 (Ambriz) [“As to respondents’ 

objections on the grounds of improper opinion, lack of foundation 

and speculation, at least some portion of the proffered deposition 

testimony did not constitute improper opinion, did not lack 

foundation, and did not call for speculation . . . . The court should 

not have excluded this evidence.”].)

The deposition transcripts were also plainly relevant. 

Indeed, AAA thought that Inspectors Datta’s and Chacon’s 

testimonies were sufficiently relevant to offer excerpts of the 

same in support of its motion. AAA cannot be heard to make a 

blanket relevance objection to Eiges offering additional context 

for those excerpts that AAA offered. As to the declarations of 

Eiges’s healthcare providers, testimony that Eiges developed new 

symptoms consistent with cement dust exposure at the time he 

alleges AAA was generating cement dust that came into his home 

could hardly be more relevant to his claims.
12

Finally, as to authentication, Eiges authenticated each 

deposition transcript either through the declaration of his counsel 

that attended the deposition; by including the reporter’s 

certificate; or both. (See Greenspan, supra, 191 Cal.App.4th at 

p. 523 [attorney authentication and reporter certification 

acceptable alternative means of deposition transcript 

authentication].) Moreover, with respect to Datta’s and Chacon’s 

deposition excerpts, AAA “[r]aising an objection as to lack of 

authentication of an excerpt from the same deposition [AAA] 

relied upon in [its] motion is disingenuous.” (Ambriz, supra,

146 Cal.App.4th at p. 1527.)

The trial court abused its discretion in excluding 

Exhibits G, H, I, and J of Eiges’s counsel’s declaration in 

opposition to AAA’s motion.

AAA’s Objections to Eiges’s Photographs and Videos (Objections 

1–4)

Eiges offered three photograph exhibits and eight videos as 

evidence that AAA generated “cement dust” and Westway 

generated “airborne powder which looked like smoke,” each of 

which entered Eiges’s home. AAA made its generic objections to 

these, embellished with the assertion that they lack foundation 

because Eiges “fails to state the date” any were taken. 

On appeal, AAA does not explain how the photographs and 

videos are objectionable except that “no foundation for any of the 

photographs or video clips was properly laid” and that they are 

“inadmissible.” These assertions, unsupported by any authority, 

are unhelpful. In contrast, Eiges argues that he met the flexible 

photograph authentication requirements articulated in People v. 
13

Goldsmith (2014) 59 Cal.4th 2587 by declaring that he took the 

photographs during a specified time period and that they depict

activities on parcels adjoining his home and items in his home. 

We agree with Eiges.

First, a proponent need not provide the precise date that a 

photograph was taken in order to authenticate it. (Smith v. 

ACandS, Inc. (1994) 31 Cal.App.4th 77, 92, disapproved on other 

grounds in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 

1245, [testimony that photograph showed working conditions in 

industrial plant sufficient foundation even without identification 

of exact date and place depicted].) Second, Eiges did provide date

information that was sufficient under the circumstances to both 

authenticate the photographs and show their relevance. He 

declared that he saw AAA workers using heavy equipment and 

blowing cement dust onto his property “[d]uring the period of 

about February 14, 2015 through March 2015.” He then explains 

that his photographs and videos of AAA workers were taken 

“[o]ver time, on different days.” Obviously, he could only have 

taken the photographs of AAA workers on the days that he saw 

7 “A photograph or video recording is typically authenticated

by showing it is a fair and accurate representation of the scene

depicted. [Citations.] This foundation may, but need not be,

supplied by the person taking the photograph or by a person who

witnessed the event being recorded. [Citations.] It may be

supplied by other witness testimony, circumstantial evidence,

content and location.” (People v. Goldsmith, supra, 59 Cal.4th at 

pp. 267–268.)
14

AAA workers on the jobsite.8 Thus, his testimony is that he took 

the photographs and videos of AAA workers during the period of 

about February 14, 2015, through March 2015. As this 

approximate date range aligns with the dates that AAA claims it 

was working at the SVF Property (February 19, 2015 through 

March 16, 2015), which AAA’s own evidence shows is adjacent to 

Eiges’s property, we see no reason for greater date exactitude to 

justify admission of the evidence. This placed an undue hurdle 

before Eiges in making his case. To the extent that the trial 

court excluded the photographs based on its erroneous finding 

that “Plaintiff only gave a range of time of March 2015 and 2016 

as the date on which the photos and video were taken,” this was 

8 In addition to asserting there was no foundation for the 

photographs, AAA also contends on appeal that it objected to the 

content of Eiges’s declaration and two other declarations he 

submitted in opposition to AAA’s summary judgment motion. 

By rule, all written objections must be made in a separate 

evidentiary objection. (Cal. Rules of Court, rule 3.1354(b).) 

We have carefully reviewed AAA’s separate evidentiary objection, 

which is entitled “Defendant, All American Asphalt’s Objections 

to Exhibits Offered as Evidence in Support of Plaintiff’s 

Opposition to Motion for Summary Judgment” (italics added), 

and find no objection to the substance of these declarations. 

Nor does AAA provide a record citation to any objection to the 

substance of these declarations. And, the trial court’s minute 

order does not reflect that it ruled on any such objection. 

Whatever merit may lie in AAA’s criticism of these declarations, 

including that Eiges lacked foundation to identify the workers on 

the SVF Property as AAA employees or that their work was the 

source of the dust that sickened him, AAA waived any objection 

by failing to properly raise it below. (§ 437c, subd. (b)(5).)
15

also an abuse of discretion. (People v. Surplice (1962) 

203 Cal.App.2d 784, 791 [“To exercise the power of judicial 

discretion all the material facts in evidence must be both known 

and considered . . . .”].)

Having been properly authenticated with a sufficient 

foundation, we do not see how the trial court could have 

sustained AAA’s objections to the photographs and videos on 

AAA’s other stated grounds. They are plainly relevant to show 

the dust intrusion that is at the heart of Eiges’s claims. They are 

not hearsay because photographs and video images that depict 

non-communicatory conduct are not statements. (See Evid. 

Code, § 1200 [defining “hearsay” as out-of-court “statement”]; 

§ 225 [defining “statement” as “oral or written verbal expression 

or . . . nonverbal conduct of a person” intended as a substitute for 

oral or written expression]; People v. Garton (2018) 4 Cal.5th 485, 

506 [“photographs are not statements”].) And we simply see no 

basis for AAA’s speculation and Evidence Code section 352 

objections, and neither AAA nor the trial court suggested any.

The trial court abused its discretion in excluding 

Exhibits A, B, C, and D of Eiges’s declaration in opposition to 

AAA’s motion.

AAA’s Other Objections (Objections 5–7; 8)

Some of the photographs that Eiges authenticated were

also referenced in other declarations. AAA objected that those

declarations failed to authenticate the photographs (along with

its other generic grounds) and the trial court sustained the

objections (Objections 5–7). It is unnecessary for us to address

these rulings because we find those photographs should have

been admitted pursuant to Eiges’s declaration.
16

Eiges also submitted a purported Google Maps printout to

which AAA made its generic objections and the trial court

sustained the objection (Objection 8). Eiges concedes this

printout is unnecessary to present his case, i.e., it is not a

material fact, so we do not review the trial court’s decision to

exclude it. 

II. The Trial Court Erred in Granting AAA’s Motion for

Summary Judgment

A. Standard of Review

On appeal of summary judgment in favor of a defendant, 

we exercise de novo review. “We independently review the 

papers supporting and opposing the motion” (Jimenez v. 24 Hour 

Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 553–554), and 

“ ‘ “ ‘must decide independently whether the facts not subject to 

triable dispute warrant judgment . . . as a matter of law. 

[Citations.]’ [Citation.] Put another way, we exercise our 

independent judgment, and decide whether undisputed facts 

have been established that negate [the] plaintiff’s claims.” ’

[Citation.] We ‘ “accept as true the facts . . . in the evidence of the 

[plaintiff] and the reasonable inferences that can be drawn from 

them.” ’ [Citation.] And in undertaking our analysis, ‘ “we must 

‘ “view the evidence in the light most favorable to [the 

plaintiff[]] . . .” and “liberally construe [the plaintiff[’s]] 

evidentiary submissions and strictly scrutinize [the] defendant[’s] 

own evidence, in order to resolve any evidentiary doubts or 

ambiguities in [the plaintiff[’s]] favor.” ’ ” ’ [Citation.]” (Strobel,

supra, 70 Cal.App.5th at p. 810.) 

Summary judgment must be denied when “genuine” or 

“triable” issues of material fact remain—that is, when “the 

evidence would allow a reasonable trier of fact to find the 
17

underlying fact in favor of the party opposing the motion in 

accordance with the applicable standard of proof.” (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

B. Discussion

AAA moved for summary judgment on the grounds that

“there is no evidence of [Eiges’s] exposure to toxic cement dust for

which AAA is responsible.” More particularly, it claimed “[Eiges]

cannot demonstrate that fugitive dust traveled from the SVF

[Property], the area in which AAA was working, to [Eiges’s

home].” Absent any such evidence, AAA continued, Eiges cannot

establish the breach or cause elements of negligence or premises

liability; the occupation or cause elements of trespass; or the

predicate invasion of Eiges’s property necessary to sustain a

nuisance claim. We disagree given the record evidence of the

following facts:

9

9 Our recitation of these facts includes references to Eiges’s 

declaration submitted in opposition to AAA’s motion. We agree 

with Eiges’s third point of error that the trial court erred in 

weighing, discounting, disregarding, or excluding this and other 

declaration testimony, as to which AAA had made no objection, in 

granting AAA’s motion. (See Avivi v. Centro Medico Urgente 

Medical Center (2008) 159 Cal.App.4th 463, 467 [“When deciding 

whether to grant summary judgment, the court must consider all 

of the evidence set forth in the papers (except evidence to which 

the court has sustained an objection), as well as all reasonable 

inferences that may be drawn from that evidence, in the light 

most favorable to the party opposing summary judgment”].) 

We do not repeat the trial court’s error in our de novo review so 

the point merits no further discussion.
18

On January 27, 2015, Eiges saw Dr. Wang, his family 

medicine doctor, and had no pulmonary symptoms. Indeed, prior 

to the exposure complained of, he had not had any respiratory 

symptoms since the 1960’s. 

On February 14, 2015, Eiges noticed construction starting

on the SVF Property. He does not recall the first day he noticed 

dust coming from the SVF Property but it was after February 14. 

He did notice concrete dust coming from the SVF Property not 

later than February 19, 2015, when he called the AQMD. The 

AQMD recorded his complaint as “ ‘[c]oncrete dust in 

neighborhood. White dust making ill, Gardena.’ ” AAA, which 

had contracted to perform “Concrete Drive Replacement” ’ at 

15621 South Broadway (the SVF Property), was there that day

“jackhammer[ing] concrete 3 feet deep” to locate gas lines and 

“scarify[ing] top 12 [inches]” of some surface. 

On February 20, 2015, AQMD Inspector Datta went to 

investigate Eiges’s complaint. However, she went to 

15507 Broadway instead of 15621 South Broadway. Having 

visited a location that AAA was not working, she unsurprisingly 

“witnessed no activity at the site.” Had she gone to 15621 South 

Broadway on that day, she would have witnessed AAA workers 

engaged in “saw cutting” and more “scarify[ing].” 

On February 28, 2015, Eiges again complained to the 

AQMD, which recorded his complaint as about “a construction 

site next door causing powder dirt, and his home is full of dirt. 

The fence has been removed and dust all over his property.” On 

that particular day, AAA was “scarify[ing]” again and “plac[ing] 

2 [feet] of new fill.” Because of the poor subgrade in some 

sections, AAA workers “also spread[] powder cement into base to 

add extra strength.” 
19

AQMD did not investigate Eiges’s February 28 complaint 

until a few days later, about March 4, 2015. That time Inspector 

Datta’s records show she went to a “[c]onstruction site on 

Redondo Beach Boulevard, Gardena, California”—again not the 

address of the SFV Property—and found that that site (whatever 

it may have been) was “[o]perating in compliance.”

Eiges made another complaint on March 4, 2015, which 

Inspector Datta described as being about “fugitive cement dust.” 

When Inspector Datta investigated this complaint the next day, 

she encountered “ ‘All American Asphalt[]’ ” workers engaged in 

paving activity—she had found the SVF Property. She spoke 

with Eiges10 who, per her report, told her “ ‘that the dust from the 

paving of an alley directly south of [his] property was coming into 

his home and causing health issues.’ ” Eiges “ ‘also showed [her] 

the area where the fence separating the two properties was 

broken[,] causing dust [to come] into the area.’ ” Inspector Datta 

did not “ ‘see any fugitive dust in the air’ ” at that time, but did 

inform Victor Correa, an AAA supervisor, of Eiges’s dust 

complaint.11 Correa told her “ ‘that he was trying to keep 

everything wet in order to mitigate the dust’ ” and “ ‘offered to fix 

the broken fence at the property line in order to contain any dust 

from the paving work.’ ” However, AAA never fixed the fence. 

10 Although Inspector Datta was “not sure” whether Eiges 

was the complainant she spoke with, AAA concedes that, “[a]side 

from Plaintiff’s, there were no other complaints regarding 

fugitive dust from the SVF Project site made to the AQMD.” 

11 AAA’s daily work reports show that Victor Correa was on 

the jobsite for 10 hours that day. The “field notes” portion of that 

report reflects no interaction with AQMD (it is blank). 
20

The same day Eiges told Inspector Datta AAA’s cement 

dust was causing him health issues, and on March 5, 2015, he

was seen by Dr. Wang at Kaiser Permanente. He complained to 

Dr. Wang “about exposure to breathing in concrete dust.” 

Dr. Wang confirmed, based on her history of seeing Eiges, that 

his “very first” pulmonary symptoms began “when he had started 

the concrete dust exposure.” Even though she believed he had 

underlying conditions relating to a history of smoking and 

asthma, “[h]e had no symptoms before he was exposed to concrete 

dust.” On this basis, Dr. Wang considered his concrete dust 

exposure was “more probably than not” the trigger of his 

pulmonary symptoms. 

Eiges took steps to document the dust intrusion into his 

home. On various dates in February and March 2015, he took 

photographs and videos of AAA workers “blowing big clouds of 

cement dust” which he declares entered his home. While the 

referenced photographs and videos show light-colored airborne 

dust above the SVF Property, they do not clearly show airborne 

dust crossing the property line.12 However, Eiges also provides 

photographs of certain “home items coated with AAA’s blown 

cement dust.” Consistent with our standard of review, we 

reasonably infer from the evidence that this dust entered his 

home by crossing the property line.

12 Video clip number 7 shows airborne dust crossing the 

property line over a broken fence, but Eiges’s testimony appears 

to be that this occurred after AAA was no longer working at the 

SVF Property. 
21

These facts would manifestly allow a reasonable trier of

fact to find, by a preponderance of the evidence, that AAA’s

cement entered Eiges’s property and caused him the harms

claimed. Perhaps anticipating this, AAA attempts to negate this

evidence. However, its efforts only underscore the need for a trial

to resolve disputes about the facts.

First, AAA asserts that it could not have been the source of

the dust because it was at the SVF Property only from February

19, 2015, to March 16, 2015, but Eiges claimed the dust came

towards his house before this—“on February 14, 2015”—and

continued after—“daily until June 2015.” This is a patent

misrepresentation of Eiges’s testimony. What Eiges said at his

deposition is that construction started on February 14 but the

dust began later. AAA’s counsel questioning him at the

deposition understood this nuance:

“[Eiges]: February 14, it was a Saturday, Valentine’s day,

is the day the construction started.

[Counsel]: Right. But when did you first notice the dust?

[Eiges]: I’m going to say the beginning of March.” 

Further, it is plausible that there was activity at the SVF 

Property, such as erecting temporary fencing, that preceded 

AAA’s arrival. Indeed, AAA’s daily work reports show a 

temporary fence was removed on March 11, 2015, but no earlier 

report shows that such a fence was erected. 

Nor did Eiges testify “that the cement dust came toward his 

home continuously until June 2015.” He did say the “cement 

dust [was] coming . . . daily” but did not specify when or for how 

long. He specified June 2015 only as the date through which the 

“dust contamination lasted.” (Italics added.) The continued 

presence of AAA’s dust does not require AAA’s continued 
22

presence at the SVF Property.

AAA also argues that AQMD’s failure to witness a dust rule 

violation proves that AAA did not commit one. AAA fails to 

explain the logic of how evidence that one witness did not observe 

dust negates evidence that another witness observed dust. 

Strictly construing AAA’s evidence, we can discern that AQMD

visited the SVF Property just once while AAA was working 

there.13 During that visit, though the inspector observed no 

airborne dust actively crossing the property line, she did see an 

“ ‘area where the fence separating the two properties was broken 

causing dust [to come] into the area.’ ” For summary judgment 

purposes we infer that, as dust does, it traveled by air to get

there. Moreover, the AAA supervisor at the site acknowledged 

the dust problem, explaining “ ‘he was trying to keep everything 

wet in order to mitigate the dust’ ” and “ ‘offered to fix the broken 

fence at the property line in order to contain any dust from the 

paving work.’ ” Finally, the record does not show whether Eiges’s 

subsequent complaints to AQMD after AAA had allegedly 

completed the job were about airborne dust or residual dust on 

his property. 

13 The evidence indicates that during the same period AQMD 

twice visited an incorrect location—15507 Broadway on February 

20, 2015, and a “[c]onstruction site on Redondo Beach Boulevard” 

on March 4, 2015. Moreover, AQMD’s sole confirmed visit to the 

site during the time AAA was working there was on a different 

day than Eiges complained to AQMD, meaning that the activities 

that day may have been different than the activities on the day of 

the complaint.
23

Similarly, AAA argues that the absence of complaints from 

persons other than Eiges shows that there was no intrusion into 

his mobile home park. First, the absence of complaints does not 

negate the presence of a hazardous condition. (Cf. Eriksson v. 

Nunnink (2011) 191 Cal.App.4th 826, 850 [that trainer had 

received no complaints about a horse’s fitness for competition did 

not negate possibility that trainer knew horse was unfit].) 

Second, two of Eiges’s neighbors signed declarations that cement 

dust was being blown over a fence onto their property “in the 

earlier part of 2015” and that it gave them coughs and affected 

their breathing. 

Finally, AAA intimates that the presence of dust from the 

Westway property renders Eiges unable to show AAA was the 

cause of his injuries. We disagree. There is substantial evidence 

to support a conclusion that AAA’s dust generated in 

jackhammering, saw cutting, and scarifying existing cement and 

“spread[ing] powder cement” caused Eiges’s illness. First, the 

evidence would permit the conclusion that only AAA created 

cement dust. Whereas Eiges’s photographs show AAA’s cement 

dust was light gray, they show Westway’s “powder which looked 

like smoke” was dark grey, i.e., different than AAA’s cement dust. 

The testimony and photographic evidence could thus support the 

conclusion that Westway’s substance was something other than 

cement dust. Second, Eiges and his doctor each testified that he 

began experiencing pulmonary symptoms while AAA admits it 

was working on the SVF Property. While this temporal 

connection is not enough to show causation (see Sanderson v. Int’l

Flavors & Fragrances (C.D.Cal. 1996) 950 F.Supp. 981, 985 

[applying California law]), Eiges’s doctor confirmed that his 

symptoms were consistent with concrete dust exposure, and that 
24

concrete dust exposure was more likely than not the cause of his 

symptoms given the timing of the onset. 

None of this is to say that the evidence would compel a 

finding that AAA’s cement dust entered Eiges’s home and 

sickened him. A reasonable fact finder could certainly find to the 

contrary. But Eiges is not the summary judgment movant. Eiges 

submitted admissible evidence that would allow a trier of fact to 

find in his favor on the issues for which AAA said he lacked 

evidence. With that showing, he was entitled to denial of the 

summary judgment motion. We need not address whether any of 

AAA’s evidence should have been excluded.

DISPOSITION 

The judgment of the trial court is reversed, and the case 

remanded for proceedings consistent with this opinion. Costs are 

awarded to Eiges.

HARUTUNIAN, J.*

We concur:

STRATTON, P. J.

GRIMES, J.

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.