Department 30, Spring Street Courthouse

January 4, 2022 

20STCV04498

Motion for Summary Judgment filed by Defendant James M. Welch Trust, Trustee

The motion is granted.

Moving party to serve and electronically file a proposed form of  judgment within 20 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order. 

This is an action for premises liability arising from a slip and fall incident which took place in February 2018. 

Defendant filed a motion for summary judgment on July 22, 2022.

Defendant argues that the piece of carpet which Plaintiff used as a doormat in his apartment was not a dangerous condition because it would not have alerted a reasonable person of a dangerous condition. Additionally, Plaintiff had the freedom to remove the mat after moving in and chose not to for two years. Defendant also argues it is not liable for Plaintiff’s injuries on the grounds that the piece of carpet was personal property and not real property. Defendant also had no notice of the alleged defect. Lastly, Defendant argues that the alleged dangerous condition was open and obvious.

 

Plaintiff argues that Defendant created the alleged dangerous condition by leaving the piece of carpet in Plaintiff’s apartment even after having notice of rainwater flooding the apartment. Plaintiff argues that Defendant’s argument that the condition of open and obvious is without merit.

Defendant argues that Plaintiff fails to offer admissible evidence sufficient to raise triable issues of material fact to support his claims. Defendant objects to Plaintiff’s deposition and argues that Plaintiff relies on an unpled theory of liability to oppose Defendant’s motion. 

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).) 

Defendant objects to Plaintiff’s deposition submitted in support of his opposition to Defendant’s motion for summary judgment.

The following objections are overruled: 1, 2, 3, 4, 5.

Defendant moves for summary judgment, or in the alternative, summary adjudication, on the grounds that the carpet was not a dangerous condition, Plaintiff was free to remove the carpet and did not for two years, Defendant had no notice of the alleged condition, the carpet was personal property, and the condition was open and obvious.

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) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th  at p. 36.) 

Because the owner is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it.¿ (Ortega, 26 Cal.4th at 1203, 1206.)

“Historically, the public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition.”  (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510; Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 778.) This policy is based n the principle that the landlord has surrendered possession and control of the land to the tenant and has no right to enter without permission. (Id. at 511.) “[B]efore liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’” (Stone v. Center Trost Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) 

“The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord’s obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” (Id. at p. 782.) 

Here, Defendant’s evidence shows that in March 2019, Plaintiff slipped and fell in his apartment at 1454 Monterey Boulevard, Apt #106, Hermosa Beach, California 90254. (UMF No. 1) Upon entering his apartment, Plaintiff slipped and fell on a piece of carpet inside his apartment door. (UMF No. 3.) When Plaintiff first viewed the apartment, there was a small carpet remnant just inside the door and another separate, long carpet strip covering the carpet. (UMF No. 4.) Plaintiff moved into his apartment in April 2017 and noticed the long carpet strip was removed and the smaller remnant remained just inside the door. (UMF Nos. 2, 5.) Plaintiff believed the carpet pieces were used by Defendant to protect the clean carpet during apartment viewings. (UMF No. 7.) Photographs of the remnant show that it is a rectangular piece of carpet sitting on tile up against the apartment door. (Compendium, Exh. G.) The small remnant remained just inside the door from the first time Plaintiff viewed the apartment until he moved out. (UMF No. 6.) 

Defendant never told Plaintiff the carpet would be placed there for him when he moved in, nor is the carpet included as personal property maintained by the landlord. (UMF No. 10; Defendant’s Compendium, Exh. C.) Plaintiff does not know who left the carpet in the apartment. (UMF No. 8.) Plaintiff never previously slipped or felt unsteady when he stepped on the carpet in two years of using the carpet as a floor mat prior to the accident. (UMF No. 11.) Plaintiff never cleaned the carpet piece in the two years it had been sitting in the apartment. (UMF No. 12.)

Defendant’s evidence shows that the carpet remnant did not pose an unreasonable risk of danger at the time Plaintiff moved in. An examination of photographs of the carpet reveals that the carpet itself is small and flat to the ground with no other remarkable features. Plaintiff used the carpet continuously for two years without slipping or feeling unsteady. There are no facts showing Defendant should have inspected the carpet prior to Plaintiff taking possession of the apartment. Thus, the carpet itself was not a dangerous condition at the time Plaintiff moved in. As Plaintiff’s landlord, Defendant is not liable for a dangerous condition that came into existence after Plaintiff took possession of the apartment. Once Plaintiff took possession of the apartment, Plaintiff was free to move the remnant because it was not a piece of personal property maintained by Defendant, such as the refrigerator, stove, or blinds. At that point, Defendant was not empowered to correct any subsequent dangerous condition because it could not enter the apartment without permission. Defendant meets its burden of showing no triable issues of material fact exist over whether the carpet remnant constituted a dangerous condition at the time Plaintiff moved into the apartment.

The burden shifts to Plaintiff. Plaintiff relies exclusively on his declaration to oppose Defendant’s motion. Plaintiff argues that Defendant had notice of rainwater leaking into Plaintiff’s apartment and was on notice that the combination of the carpet remnant and the leak created a dangerous condition. However, on summary judgment, a plaintiff cannot raise new, unpled issues in the opposition to the motion. (Jacobs v Coldwell Banker Residential Brokerage Co. (2017) 14 CA5th 438, 444–445.) Here, Plaintiff’s Complaint alleges that “Plaintiff slipped and fell from a rug placed by defendant’s rental unit, which had no rubber backing hence creating a dangerous condition.’ (Compl., p.4.) The Complaint does not mention rainwater as a cause of Plaintiff’s fall and Plaintiff is precluded from raising this issue in opposition to Defendant’s motion for summary judgment. 

The remainder of Plaintiff’s opposition consists solely of citations and legal conclusions with no other facts showing the carpet remnant created an unreasonable risk of harm. Plaintiff fails to meet his burden of showing triable issues of material fact exist over whether the carpet remnant constituted a dangerous condition.

Defendant also contends that to the extent that the piece of carpet constituted a dangerous condition, the condition was open and obvious.  

Plaintiff is required to show that Defendant owed Plaintiff a legal duty of care with respect to the condition that caused Plaintiff’s 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.)

In ordered to impose a duty, a court must consider a variety of factors. The most important of those factors is foreseeability of harm to another. 

“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, Defendant has demonstrated that the fact that a piece of carpet resting on tiles would not have the same type of adhesive properties as a door mat would have been obvious to Plaintiff or anybody else. Moreover, this is not a situation where necessity required Plaintiff to encounter the piece of carpet. The remnant could have been moved or thrown way by Plaintiff. Plaintiff provides not evidence or argument to the contrary.    

For these reasons, the motion is granted.