Judge Jill Feeney, Case 21STCV09335 2022-10-13 Tentative Ruling

This is an action for premises liability, negligence, negligent hiring, training, supervision, and retention, and negligent infliction of emotional distress arising from a trip and fall incident which took place in August 2020. Plaintiff Alma Rosa Sanchez-Arroyo filed her Complaint against Smart One Investments, LLC and Superior Plus Real Estate Group on March 10, 2021.

Defendants argue that (1) there was no dangerous condition on defendants’ property which presented an unreasonable risk of injury to Plaintiff, (2) Plaintiff lacks evidence to establish the existence of a dangerous condition on defendants’ property, (3) Defendants did not have any notice of any dangerous condition on the premises and had no reason to know of any dangerous condition, and (4) the speedbumps were open and obvious and therefore not unreasonably dangerous.

Plaintiff argues that summary judgment should be denied because she specified that the speedbumps were poorly maintained and not visible. Additionally, Plaintiff claims she never stated she did not check her surroundings before she began walking backwards. Plaintiff also alleges that Defendants should have taken notice of the deterioration of the speedbumps and properly maintained them. Plaintiff also argues the speedbumps were not open and obvious because they were deteriorated. Lastly, Plaintiff argues that the management company did not properly maintain the premises and the owner did not supervise the work that was to be done on the speedbumps.

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) 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 in order to avoid exposing others to an unreasonable risk of harm. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)

“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.) “[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.)

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 Residential 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.)

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p. 1054.) To be liable for negligent supervision and hiring, there must be a connection between the employment and injury. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. (Id. at 1339.) “The tort has development in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Id. at pp. 1339-1340.)

“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)

“[T]here is no duty to avoid¿negligently¿causing emotional distress to another, and¿[]¿damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) “[U]nless¿the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Id. at p. 985.) “Even then, with rare exceptions, a¿breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Ibid.)

The Court initially notes that Plaintiff’s allegations of premises liability and negligence are duplicative. They are based on the same theory of recovery (negligence) and the same facts (Plaintiff tripped and fell over a speedbump). Accordingly, the Court treats both of Plaintiff’s causes of action for premises liability and negligence as one.

Defendants’ evidence shows that Plaintiff’s incident took place in August 2020 at 5032 Elizabeth Street, Cudahy, California, where Plaintiff has lived for seven years. (UMF No.1.) The incident took place in a drive aisle between two apartment buildings where cars drive through within the property. (UMF No. 2.) Plaintiff was returning from a shopping trip with her daughter-in-law and grandson, and rode as a passenger in a truck. (UMF Nos. 4-5.) Plaintiff stepped out of the truck from the rear driver’s side door and walked around to the passenger side door to retrieve her grandson. (UMF No. 6.) While carrying her grandson in her left hand, Plaintiff stepped backwards and tripped on a speedbump. (UMF Nos.7-8.) Plaintiff alleges that her fall was caused by a poorly maintained and not visible speedbump. (UMF No. 20.)

Defendant’s evidence shows Plaintiff knew the speedbumps were on the premises during her entire tenancy and had walked over them without incident on many occasions. (UMF No. 11.) The ground was dry and nothing had been spilled on the speedbump to make it more slippery. (UMF No. 14.) There were no cracks or holes on the speedbump or any other damage that caused her fall. (UMF Nos. 14-15.) Plaintiff had never made a complaint about the speedbump before or after the incident. (UMF No. 16.) No person has ever complained to Defendants about the speedbump. (UMF No. 17.) There have been no other accidents involving the speedbumps on the property. (UMF No.19.)

(Sanchez Arroyo Depo., 17:1-18.) Defendants also submit photographs of the speedbumps at issue and they appear to show asphalt speedbumps with faded white paint marking them, as well as a few cracks in the surrounding asphalt. (Defendants’ Compendium, Exhibit 1.)

Defendants’ evidence shows that the speedbumps at issue were not a dangerous condition. There is no significant damage or other defect with the speedbumps that would make them particularly dangerous. Their placement in a drive aisle between two buildings is not unusual because vehicles use the aisle to cross the property. The weather was dry and no other conditions appear to have made the speedbumps dangerous. Although there are cracks and faded paint on the speedbumps, there is no evidence that the cracks contributed to her fall or that she fell because she could not see the bumps. There is also no evidence that the lack of a sign made the speedbumps dangerous. Thus, there is no evidence of a dangerous condition or any facts suggesting Defendants should have inspected the speedbumps. It appears Plaintiff was stepping backwards carrying her grandson and unexpectedly encountered the speedbumps. Her fall was thus not caused by any dangerous condition of the speedbumps themselves, but from her own actions stepping backwards while encumbered.

Even if the speedbumps were dangerous, there is no evidence Defendants ever received any notice of a dangerous condition involving the speedbumps. Defendants have never received any complaints about the speedbumps. There have also been no other incidents involving the speedbumps. Thus, Defendants, as landlords, would not have had actual or constructive notice of any defects with the speedbumps. Given the lack of notice or any indication there was a defect in the speedbumps, there is no evidence that Defendants were required to investigate the speedbumps or that they acted unreasonably. Defendants meet their burden of showing no triable issues of material fact remain over whether there was a dangerous condition on the property that Defendants had notice of.

Plaintiff’s evidence shows that she was looking straight ahead when she took two steps backwards, but she did not state that she was not looking where she was going prior to taking those steps. (UMF No. 9.) Plaintiff also alleges Defendants’ photographs show the speedbump was cracked and damaged. (UMF No. 15.) Plaintiff then disputes whether Defendants received any complaints about the speedbump by pointing out the existence of this matter. (UMF No. 16.) Plaintiff also disputes Defendants’ assertion that she has no evidence of the existence of an unreasonably dangerous condition by alleging Defendants should have demanded further responses to their Special Interrogatories. (UMF No. 21.)

First, Plaintiff’s argument that she did not state she was not looking where she was going does not shift her burden. As described in her depositions, Plaintiff picked up her grandson and took two steps backwards. Plaintiff does not describe looking at her surroundings, nor does she describe the faded paint as the reason for her fall. An examination of Defendants’ photographs reveals that although the paint around the speedbumps is faded, the bump is still clearly marked and visible. Although Plaintiff states in her deposition that there were no signs indicating the bump was there, it appears from her deposition that Plaintiff fell because she did not see the bump while walking backwards carrying her grandson. Thus, the fall is not attributable to any defect with the speedbump.

No triable issues of material fact remain over whether Defendants were negligent because there is no evidence the speed bumps at issue were dangerous. Because Plaintiff’s causes of action for NIED and negligent hiring are dependent upon the cause of action for premises liability, these causes of action also fail.