Judge Jill Feeney, Case 19STCV41274 2022-09-13 Tentative Ruling

This is an action for negligence and premises liability arising from a trip and fall accident which took place on October 10, 2019. Plaintiff Stacey Babbitt filed her Complaint against the owners and managers of the property at issue—Defendants Teri Hertz, Lisa Dick, and Caronlynn Properties, LLC (“Defendants”)—on November 15, 2019.

Defendants argue they are entitled to summary judgment because: (1) The alleged dangerous condition was open and obvious; (2) Defendants had no actual or constructive notice of the dangerous condition; and (3) Plaintiff assumed the risk associated with the open and obvious nature of the alleged dangerous condition.

Plaintiff argues that triable issues of fact exist as to whether: (1) A combination of factors made the dangerous condition at issue difficult to perceive; (2) Defendants had constructive notice; and (3) Plaintiff subjectively knew the existence and magnitude of the risk such that she could have assumed it. Plaintiff also offers case law for the proposition that secondary assumption of risk, as alleged by Defendants, necessary requires the application of comparative negligence principles by a jury.

Defendants respond by focusing on the open and obvious nature of the alleged dangerous condition. Defendants present case law for the proposition that expert testimony does not create a triable issue of fact when admissible photographs of the allegedly dangerous condition speak for themselves. In the alternative, Defendants object to the declaration offered by Plaintiff’s expert on similar grounds—that it contradicts what can clearly be determined from photographs and thus lacks evidentiary support.

The Court cannot rule on these objections. California Rules of Court require each written objection to “[q]uote or set forth the objectionable statement or material.” (Cal. R. Court, rule 3.1354(b)(3).) Here, Plaintiff objects to material facts as paraphrased or summarized by Defendant in their Separate Statement, but the Court can only rule on objections to actual evidence. For the Court to rule, Plaintiff must quote or set forth the declaration, deposition testimony, or exhibit to which she objects. However, in ruling on the instant motion the Court does consider Plaintiff’s dispute of Material Facts listed in Defendant’s Separate Statement.

In 2019, Plaintiff was hired by Defendants to list and stage the Property for sale. On October 10, 2019, while removing furniture from the Property, Plaintiff was walking along a path made of paved cement and wood planks (“the Path”). While walking on the Path, Plaintiff tripped over the wooden border between the last paver and the sidewalk.

Prior to the incident in question, Plaintiff visited the Property about 25 times. Plaintiff used the Path about 4 to 5 times the day before the incident, and another 3 to 4 times on the day of the incident before falling. The parties do not dispute the condition of the Path at the time of the incident.

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The purpose of a motion for 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.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action...cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant...has met that burden, the burden shifts to the plaintiff...to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (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.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 22 Cal.App.4th 994, 998.) Therefore, the issues raised by Defendants in their Motion for Summary Judgement apply to both of Plaintiff’s claims.

Plaintiff is required to show that Defendants owed her a legal duty of care with respect to the condition that caused her injury. As a general matter, the existence of a duty is a question of law to be determined by the court. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. [Citation.] ‘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.” (Montes v. Young Men's Christian Association of Glendale, California (2022) 81 Cal.App.5th 1134, quoting Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.)

However, there may be a duty of care owed even if a condition is open and obvious when “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).” (Montes v. Young Men's Christian Association of Glendale, California (2022) 81 Cal.App.5th 1134, quoting Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)

Here, Defendants offer photographs of the Path from the house to the sidewalk which serve as convincing evidence that the wood border between the last paver on the Path and the sidewalk was open and obvious. (Hertz Depo., Exhibits 1,3.) Defendant Hertz properly establishes the foundation and authenticity of these photographs. (Hertz Depo., 39:19-40:13; 75:13-15.) The Court notes that Plaintiff does not dispute the condition of the Path in her Separate Statement of Material Facts.

With respect to whether it was foreseeable that the open and obvious condition might still cause injury, i.e., because necessity would force an individual to encounter the condition, Defendants proffer the Declaration of Defendant Hertz. Defendant Hertz explains that in addition to Path on which Plaintiff fell there were two other ways to reach the sidewalk or the street, a fully paved walkway running straight from the front door to the sidewalk and a walkway in the backyard. (Hertz. Decl. Para. 9.) Defendants also include pictures of this fully paved walkway to the sidewalk. (Hertz. Depo., Exh. 2.) As is clear from the pictures, the pathway is smooth and does not include a wooden border between the end of the path and the sidewalk. It is also clear from the pictures that the wooden plank serves as a border for the Property’s entire front yard and is broken only where the paved path straight from the front door reaches the sidewalk. (Hertz Depo., Exh. 3.) It is also clear from the pictures that the Path on which Plaintiff fell (the path to the side of the front door) and the straight path from the front door to the sidewalk which contained no obstructions were very close to one another. (Hertz Depo., Exh. 3.) Under these circumstances, Defendants have established that it was not necessary for Plaintiff to use the Path.

Plaintiff responds by offering a declaration from Mark Burns, a mechanical engineer and certified building inspector. Mr. Burns opines that the hazard presented by the wood plank border would not be readily apparent to approaching pedestrians. (Burns Decl. ¶ 11.) Specifically, Mr. Burns states that the height differential of the wood plank would have been relatively difficult to perceive at the time of the incident, and that the wood plank is similar in color and texture to wood chips along the subject paver walkway which would tend to conceal the height differential and where the wood plank begins and ends. (Id. ¶ 10.) Plaintiff provides no other evidence to dispute the open and obvious danger posed by the wood plank border in question.

The Court does not need expert opinions on the condition of the path in this case. Evidence Code Section 801 limits expert testimony about a topic “sufficiently beyond the common experience” such that the expert’s opinion would assist the trier of fact. (See Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 (expert opinion not necessary to determine if a defect is trivial).)

Defendants have offered admissible photographs, and Plaintiff does not dispute the condition of the Path at the time of the incident. (UMF, 22.) The photographs show that the wood plank border was clearly visible. Furthermore, Plaintiff does not dispute that she had been to the Property about 25 times before the incident. (UMF, 9.) Nor does Plaintiff dispute that she had already used the Path 4 to 5 times the day before the incident, and another 3 to 4 times the day of the incident. (UMF 10,11.)

“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...” (Avivi, supra, 159 Cal.App.4th at p. 467.) Here, it is reasonable to conclude that the because the wood plank border was clearly visible—and because Plaintiff had already used the path and encountered the wood plank border several times—any danger posed by the wood plank border was open and obvious. Moreover, it is further reasonable to conclude that it was unnecessary for Plaintiff to use the Path.

Therefore, Defendants Motion for Summary Adjudication on this issue is granted. Since an open and obvious finding negates Defendants’ duty, Plaintiff cannot establish causes of action for negligence or premises liability. Accordingly, Defendants’ Motion for Summary Judgment is granted.