Judge Jill Feeney, Case 21STCV01552 2023-02-09 Tentative Ruling

Defendants move for summary judgment, or in the alternative, summary adjudication on the grounds that (1) Plaintiffs’ causes of action fail because the alleged water at the pool was an open and obvious condition, (2) Plaintiffs’ causes of action fail because Plaintiff assumed the risk of injury participating in a recreational activity, (3) Plaintiffs’ causes of action fail because there are no triable issues fact as to the element of causation, and (4) there is no underlying liability to support a claim for loss of consortium.

Plaintiffs argue that Defendants’ open and obvious argument fails because the risk of Ahmad slipping on the pool deck was foreseeable and he was obligated to encounter the risk to oversee his five young children using the pool. Plaintiffs also argue that Ahmad did not assume the risk of participating in the use of the pool because he was not engaged in any sport. Plaintiffs also argue that there is evidence that the pool deck was slippery and caused Ahmad’s fall. Plaintiffs argue that there is evidence of standing water on the deck and of other people slipping on the pool deck. Plaintiffs also argue that Ahmad’s shoulder injury was exacerbated by the fall.

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).)

Defendants object to Plaintiffs’ evidence submitted in opposition to the motion for summary judgment. Defendants object to the declaration of Lance Wilson because the declaration is based on an unnoticed site inspection and Plaintiffs never designated him as a retained expert.

A party seeking to conduct discovery through inspection, copying, testing, or sampling is required to make a demand under Code Civ. Proc., section 2031.020 and in compliance with section 2031.030. Additionally, retained experts must be disclosed during a simultaneous exchange of information under Code Civ. Proc., section 2034.210. If a party fails to designate an expert, a party who has complied with designation requirements may move to exclude the expert’s opinion from evidence. (Code Civ. Proc., section 2034.300.)

Defendants move for summary judgment on the grounds that (1) the alleged dangerous condition was open and obvious, (2) Ahmad assumed the risk of using the pool, (3) Plaintiffs cannot provide evidence that Ahmad’s injuries were caused by the fall, and (4) there is no underlying liability to support Nafiseh’s cause of action for loss of consortium.

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, Defendants’ evidence shows that on March 31, 2019, Plaintiffs were staying at the Marriott Warner Center as guests. (UMF No.1.) Ahmad took his children and grandchildren to the hotel pool for three to four hours and supervised them as they played in the indoor pool. (UMF No. 1.) As Ahmad stood from his seat and walked towards the pool, he slipped and fell within two feet of the edge of the pool. (UMF No. 2.) Ahmad does not know what caused him to fall, why the floor was slippery, or whether there was water on the ground. (UMF No.3.) Photographs of the area where Ahmad fell show that he fell on the pool deck near the stairs leading into the pool. (Motion, Exh. B.)

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, Defendants provide photographs showing that there was water on the floor immediately adjacent to the pool where Ahmad’s grandchildren were splashing for 3 hours leading up to the incident. (UMF No. 5.) Defendants argue that the fact that there would be water present due to use of the pool is open and obvious. Plaintiff fell very close to the pool and had been observing the water around the pool for over three hours.

Defendants’ evidence shows that the portion of the pool deck where Ahmad fell is very close to the stairs leading into and out of the pool. (Motion, Exh. B.) It is foreseeable that patrons using the stairs to access the pool would slip on a wet, slippery surface immediately adjacent to the stairs. Thus, Defendants are not relieved of the duty of remedying danger even if the water around the pool was open and obvious. Defendants fail to meet their burden of showing no triable issue of fact exists over whether they owed a duty to Plaintiffs to remedy the danger of a slippery surface around the pool.

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [“[p]rimary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms”].) “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].)

“Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . . Whether a duty exists ‘does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on [1] the nature of the activity or sport in which the defendant is engaged and [2] the relationship of the defendant and the plaintiff to that activity or sport.’ If a duty is found not to exist, primary assumption of risk applies, and a defendant is liable only if he intentionally injures the plaintiff or engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity.” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866 (citing Knight v. Jewett (1992) 3 Cal.4th 296, 313).) There is also a duty not to unreasonably increase the risks of injury to participants beyond those inherent in the activity. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162.) The doctrine of primary assumption of risk applies “where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport [or activity] itself.’” (Saville, supra, 133 Cal.App.4th at p. 867.)

To evaluate the applicability of the primary assumption of risk doctrine, a court must examine “the nature of the sport itself,” as well as “the defendant’s role in, or relationship to, the sport.” (Knight, supra, 3 Cal.4th at p. 317.) “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’” (Nalwa, supra, 55 Cal.4th at p. 1156 [citing Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658].)

Here, Defendants allege that Ahmad was engaged in the activity of walking around a pool. Walking around a pool is not a recreational activity or sport that involves an inherent risk of injury. Although Defendants rely on Stimson v. Carlson, (1992) 11 Ca.App.4th 1201, Stimson involved parties engaged in the sport of sailing. Here, Ahmad was not swimming or engaging in any other recreational activity, but walking around the edge of the pool to supervise his children playing in the pool. The mere act of walking around the edge of a pool is not a sport or recreational activity. Therefore, the doctrine of primary assumption of the risk does not apply here. The burden does not shift to Plaintiff.

Defendants next argue that Plaintiffs cannot prove that Defendants’ negligence was the cause of the subject incident. Defendants argue that they are not liable for Plaintiffs’ injuries unless their conduct was a “legal cause” of plaintiff’s injury.

In support of their argument, Defendants offer Plaintiff’s testimony that he did not know why he fell or what he slipped on. However, Plaintiff’s own lack of knowledge of the cause of his fall alone is insufficient to show that he can produce no evidence that Defendants’ negligence caused his fall. Moreover, there is a reasonable inference based on the evidence that Plaintiff fell due to slick surface on the edge of the pool. Even if Defendants did meet their burden, Plaintiffs offer evidence of their son-in-law and one of their grandchildren slipping shortly after the incident. (Gonzalez Decl., ¶¶23-24.) Thus, a dispute remains over whether Defendants’ negligence caused Ahmad’s fall.

Defendants also argue that there is no evidence their negligence was the proximate cause of Ahmad’s shoulder injury because he had a previous injury from a vehicle collision that existed prior to the fall. Defendants provide an operative report describing shoulder surgery Plaintiff underwent in December 2019. (Motion, Exh. C.) Defendants also provide medical evaluations by Dr. Randy Rosen and Dr. Philip Conwisar describing shoulder and spine injuries from his earlier vehicle collision. (Motion, Exh. D, E.)

The existence of the earlier vehicle collision and his injuries from the incident alone fail to show that Defendants’ negligence did not contribute to any of Ahmad’s injuries. Defendants only provide documentation of Plaintiff’s 2019 shoulder surgery and his injuries from the 2017 vehicle collision. The 2019 report does not discuss the cause of Ahmad’s shoulder injury. Ahmad also testified at deposition that he suffered injuries to his neck, back, shoulder, wrist, and hip as a result of the fall. (Ahmad Depo. 87:11-18.) Defendants provide no evidence of the injuries Ahmad is claiming in the current action. Thus, Defendants fail to show no triable issues of material fact exist over whether their negligence caused Ahmad’s injuries. Even if they did meet their burden, Plaintiffs provide evidence in opposition that Ahmad’s shoulder injury was further exacerbated by the fall. (Josephson Decl., ¶¶3-4.)

Defendants finally argue that Nafiseh’s cause of action for loss of consortium fails as a matter of law because there is no underlying liability for Ahmad’s injuries. Because Defendants’ other grounds for summary judgment fail, this argument also fails.