Judge Anne Hwang, Case Number: 23STCV10010, Date: 2024-08-21 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment, or in the alternative, Summary Adjudication

1. Plaintiff’s Opposition; Memorandum of Points and Authorities; Declaration of Khashayar Eshraghi

On May 4, 2023, Plaintiff Sheila Tuchin (“Plaintiff”) filed a complaint against Defendants Hollywood Versailles Tower, Regency Towers Housing Partners, and Does 1 to 50 for negligence and premises liability. Plaintiff alleges that on November 30, 2022, she was on Defendants’ property at 7135 Hollywood Blvd., Los Angeles, when she tripped and fell over a speed bump. (Complaint, 4.) Plaintiff alleges the premises were in a dangerous condition and Defendants failed to properly warn or protect against the condition. (Id.)

On July 21, 2023, Plaintiff filed an amendment to the complaint substituting Hollywood Versailles Tower Homeowners Association as Doe 1.

Defendant Hollywood Versailles Tower Homeowners Association (“Defendant”) now moves for summary judgment, or alternatively, summary adjudication, arguing that the negligence and premises liability causes of action fail because: (1) the speed bump was not in a dangerous condition, and (2) the speed bump was open and obvious. Plaintiff opposes and Defendant replies.

The Court declines to rule on Defendant’s objections to Plaintiff’s evidence as they have no effect on the ruling herein.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the 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, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action.” (Aguilar, supra, 25 Cal.4th at 855.) Alternatively, “[t]he defendant may […] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admission by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id.)¿This must be supported with evidence “including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’” (Id. at 854–55 [quoting Code Civ. Proc. § 437c(b)].)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp.¿(1989) 215 Cal.App.3d 1611, 1619; see Civil Code § 1714.)

“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]’ [Citation.]” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 215.) This is known as “the no-duty exception for open and obvious dangerous conditions ….” (Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 993.) “[T]he rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger.” (Id. at p. 994.)

“[T]he 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.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184 (hereafter Martinez).)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but “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, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122 (hereafter Osborn).)

Although “the existence of a duty of care is a matter of law,” “[t]he foreseeability of a particular plaintiff’s injury is a question of fact.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1330, fn. 9.)

“‘It is ordinarily a question of fact … whether [a] particular danger was obvious, [or] whether an invitee was contributorily negligent ….’ [Citations.]” (Henderson v. McGill (1963) 222 Cal.App.2d 256, 260; see also Curland v. Los Angeles County Fair Ass’n (1953) 118 Cal.App.2d 691, 695–696 [“Whether [a] danger was obvious to plaintiff [is] a question of fact for the jury. [Citations.] Whether a person, under the circumstances, made a reasonable use of his faculties is also a question for the jury. The law presumes that a person possessing the normal faculties of sight must have seen that which was in the range of his sight”].)

The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition.¿ (Martinez, supra, 121 Cal.App.4th at p. 1184.)¿ In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer).¿ (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.)¿

Here, the following is undisputed. Defendant is the homeowners’ association for the multi-unit condominium building, located at 7135 Hollywood Boulevard, Los Angeles, California. (UMF 8.) Plaintiff is a resident at the subject premises, Unit 106, and has lived at this location continuously for more than 20 years. (UMF 7.) The incident occurred inside the parking garage of Hollywood Versailles Tower on November 30, 2022, while Plaintiff was walking over a speed bump. (UMF 9.)

- Plaintiff tripped between the letters “S” and “T” that form the word “STOP” that are adjacent to the speed bump. (UMF 10.)

- The subject speed bump was installed in the parking garage in October 2022, three to four weeks before the incident. (UMF 11.)

- There were no modifications or repairs made to the subject speed bump from the time it was installed to the date of the incident. (UMF 12.)

- For the past 30 years, and the entirety of Plaintiff’s over 20-year residency at Hollywood Versailles Tower, there had been a speed bump in the same location where the subject speed bump was installed. (UMF 13.)

- Plaintiff had used the back entrance into the lobby before the incident hundreds of times as it was the entrance that residents were required to use if they had a shopping cart with groceries. On at least 20 occasions before the incident, Plaintiff walked over and past the speed bumps at that location without any trouble walking and without tripping or falling. (UMF 17.)

- As Plaintiff walked to the back entrance at the time of the incident, there were no pedestrians, vehicles, or obstructions in front of Plaintiff or behind Plaintiff blocking her view of the speed bump. (UMF 18.)

- For the more than 20 years that Plaintiff resided at Hollywood Versailles Tower, she had never tripped or fallen on any speed bump until November 30, 2022. (UMF 20.)

- The subject speed bump is white in color in contrast to the surround dark gray concrete. (UMF 21.)

Defendant has also produced video surveillance footage of the incident. (Exh. H.) Though the subject speed bump and Plaintiff’s fall is situated in the background of the recording, one can clearly see the white speed bumps. Additionally, the photograph of the speed bump presents a close-up view and shows it was painted white and clearly contrasted with the gray pavement. (Rivas Decl., Exh. G.) Defendant has also established that it was not reasonably foreseeable that Plaintiff would expose herself to the risks associated with tripping over a speed bump in a parking garage. The Court finds Defendant has met its burden.

In opposition, Plaintiff disputes that Defendant’s exhibit G accurately portrays how the speed bump looked. However, Plaintiff’s photographs offered in opposition, show that the speed bump was still painted white, albeit not as brightly as Defendant’s photo. (Pl. Exh. B, Rivas Depo., Exh. 3-5.) In both photographs, the speed bump clearly contrasts with the surrounding darker gray pavement and is accompanied by the word “STOP.” Although Plaintiff argues that the speed dump was a “different material, size, and shape than the prior speed bumps,” Plaintiff does not dispute that a speed bump was previously in that same location,[1] and the speed bump in place at the time of the fall was painted a different color than the surrounding gray. (Opposition at p. 9.)

Next, Plaintiff presents facts that the subject speed bump was installed one month prior to the incident, that no permits were obtained for its installation, that the board did not approve it, and that unlicensed staff installed it (See PAMF 2, 4, 16-18.) However, these do not speak to the obviousness of the speed bump.

Therefore, construing the evidence and all reasonable inferences in the light most favorable to Plaintiff, Plaintiff has failed to meet her burden to show a triable issue of fact.

As a result, the motion for summary judgment is granted. Because the motion is granted, the Court declines to address Defendant’s argument that the speed bump did not constitute a dangerous condition.

Therefore, Defendant Hollywood Versailles Tower Homeowners Association’s motion for Summary Judgment/adjudication is GRANTED. Defendant shall file a proposed judgment within ten days.

Defendant shall provide notice of the Court’s ruling and file proof of service of such.

[1] Accordingly, it is not clear why any lack of notice of a new speed bump would impact the analysis regarding an open and obvious condition, given that the new speed bump simply replaced an old one in the same location.

DEPARTMENT	32
HEARING DATE	August 21, 2024
CASE NUMBER	23STCV10010
MOTION	Motion for Summary Judgment, or in the alternative, Summary Adjudication
MOVING PARTY	Defendant Hollywood Versailles Tower Homeowners Association
OPPOSING PARTY	Plaintiff Sheila Tuchin