Department 30, Spring Street Courthouse

January 13, 2023

20STCV47825

Motion for Summary Judgment filed by Defendant Alma C. Pulido

The motion is denied.

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 2020. Plaintiff Victor Robles filed his Complaint against Alma C. Pulido on December 15, 2020. 

Defendant filed its motion for summary judgment on October 27, 2022.

Moving Arguments

Defendant argues that she did not owe a duty to protect Plaintiff from the palm tree balls that fell on his driveway because Plaintiff had been in exclusive possession of the subject property and had personal use of the driveway. Defendant also argues that the condition was open and obvious. Plaintiff also argues the balls were a trivial defect. Finally, Defendant argues no conduct on her part caused Plaintiff’s injuries.

Opposing Arguments

 

None filed.

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 moves for summary judgment on the grounds that (1) she had no duty to protect Defendant from the palm balls he fell on because he had been in possession of the property and had personal use of the driveway for six years, (2) the palm balls were open and obvious, (3) the palm balls were a trivial defect, and (4) Defendant’s conduct did not lead to Plaintiff’s injuries.

Defendant requests judicial notice of Plaintiff’s Complaint. The request is denied as unnecessary. The Court may always refer to the pleadings in the case at hand.

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.)

Here, Defendant’s evidence shows that on February 23, 2020, Plaintiff slipped and fell on the driveway of the property at 15418 Pioneer Boulevard, Norwalk, California 90650. (UMF No. 1.) Defendant owned the property which she rented out to Plaintiff and his family for six years at the time of the incident. (UMF No. 2.) 

Defendant slipped on palm balls that were present on the driveway and regularly fell from a palm tree nearby. (UMF No.4.) On the date of the incident, Plaintiff was taking his dogs into the yard when he slipped on the palm balls after taking a few steps out of the garage. (UMF Nos. 10-12.) Plaintiff was looking up and straight ahead and did not see the palm balls before he fell. (UMF No. 13.) 

Plaintiff’s family lived at the subject property under two leases, one from 2014 and another from 2018. (UMF No. 6.) The balls had been present at the property for the entire time Plaintiff had lived there from 2014 to the date of the incident. (UMF No. 5.) Plaintiff had exclusive use of garage and driveway at the property. (UMF No. 7.) Both the 2014 and 2018 leases provided that Plaintiff was responsible for keeping the property in a clean and sanitary condition. (UMF No. 8.) Plaintiff cleaned up the palm balls from the time he moved in to the date of the incident. (UMF No. 9.) Plaintiff and his family had walked on the driveway with no issues in the six years prior to the incident. (UMF No. 14.) Plaintiff would not have let his children walk on the driveway if he had been concerned for their safety. (UMF No. 15.)

“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 on 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.) 

Defendant’s evidence fails to show that there is no genuine issue of material fact with respect to her lack of duty to protect Plaintiff from the palm tree balls. Firstly, there is no evidence showing whether the condition of the driveway where Plaintiff fell necessitated an inspection. There are no photographs or descriptions of the state of the driveway when Plaintiff fell other than his own testimony at deposition, where he stated that the palm balls fell “all over” the driveway. (Robles Depo., 28:14-22.) Although Defendant’s separate statement states that the balls were about the size of a green pea, there is no evidence in the deposition testimony, discovery responses, or photographs that show what the seeds looked like or how big they were. Given the lack of any evidence showing the nature of the alleged dangerous condition, Defendant fails to meet her burden of showing she had no duty to protect Plaintiff from the alleged dangerous condition. 

Plaintiff also stated in his deposition that he would report the seeds covering his driveway to Defendant via text message. (Robles Depo. 55:5-55:15.) In response, Defendant would text that she would send somebody over to clean the palm trees. (Id.) Because Defendant had notice of this issue and Plaintiff’s permission to maintain the palm trees causing the falling seeds, Defendant had notice of the palm seeds and was empowered to cure the defect. Moreover, to the extent this was a dangerous condition caused by the trees, Defendant was clearly aware of it as all the evidence provided shows that the tree was constantly shedding seeds all over the driveway. This is not a situation where Defendant would need to conduct a daily inspection of the property to be aware of the condition. Rather, it was apparently a constant condition that predated Plaintiff’s tenancy and continued throughout that tenancy.    

Defendant also argues that that she did not breach a duty to Plaintiff because Plaintiff himself took responsibility to sweep or clean the seeds and no conduct on Defendant’s part was a substantial factor in causing his injuries. 

As discussed above, the facts are insufficient to show that Defendant owed no duty to protect Plaintiff from the alleged dangerous condition. To the contrary, Plaintiff’s deposition testimony shows that Plaintiff did report the palm seeds to Defendant, who replied that she would send someone over to clean the palm trees. Given that Defendant appears to have had notice of the condition and the power to enter to cure the defect, Defendant has not met the burden of establishing the lack of any genuine issue of material fact regarding Defendant’s duty to protect Plaintiff from the palm seeds. 

Defendant argues that the seeds were an open and obvious condition because Plaintiff had observed the palm seeds continuously for six years.

A property owner owes no further duty to make a condition reasonably safe or give an adequate warning of a condition when the danger of the condition is so obvious that the condition itself serves as a warning.  (Kinsman v. Unocal Corp (2005) 37 Cal.4th 659, 673.) “[I]f the 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 unless harm was foreseeable despite the obvious nature of the danger.”  (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 122.) Whether a condition is obvious and whether the obviousness negates a property owner’s duty of care are legal questions for the court.  (See Jacobs v. Coldwell Banker  Brokerage Co. (2017) 14 Cal.App.5th 438, 446-450 (affirming a trial court’s granting of summary judgment based on a finding that a dangerous condition was obvious.) 

The obvious character of the condition does not negate a property owner’s duty of care to remedy a conspicuous danger when it is foreseeable that a person will encounter the danger despite the danger’s obviousness. (Martinez v. Chippeqa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185 (indicating a dangerous condition encountered on a sole access way from the street to the defendant’s building would not negate the defendant’s duty of care owed to the plaintiff; see also Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123 (finding an employee did not assume the risk of an obvious danger when the employee’s employment required him to encounter a dangerous condition).)

Here, photographs and Plaintiff’s deposition testimony show that the only way to access the back driveway and yard from the house is by walking through the garage onto the driveway. 

“Q: How do you get outside from the kitchen when you walk out?

…

A: It’s a small little door, like doorway, like small little hallway to go into the garage.

Q: and then you have to walk through the garage to go outside. Right?

A: Yes.”

(Robles Depo., 46:2-13.) Robles testified that he had to use the driveway to exit the premises at all. (Robles Depo., 93: lns. 4-7.)  

Given that the driveway is the only route through which a tenant may exit the property, it is foreseeable that a tenant would walk on the driveway, slip on the alleged dangerous condition, and fall. Hence, Defendant has not Defendant’s burden to establish no genuine issue of material fact.   

Defendant next argues that the seeds constitute a trivial defect.

Whether a condition is¿trivial¿as a matter of law, “[t]he legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a¿trivial¿defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.”¿(Stathoulis¿v. City of Montebello¿(2008) 164 Cal.App.4th 559, 567-568.)

As discussed above, Defendant provided no evidence as to the size and quantity of the seeds at issue other than Plaintiff’s own vague description that they were all over his driveway. Without information about the size and type of the defect along with additional factors, such as weather, lighting, and visibility at the time of the incident, the Court cannot find that the defect was trivial based on the evidence provided and hence Defendant has not met Defendant’s burden on this issue either.