Judge: Lee S. Arian, Case: 22STCV25091, Date: 2024-11-05 Tentative Ruling
Case Number: 22STCV25091 Hearing Date: November 5, 2024 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
Hearing Date: 11/5/24
CASE NO./NAME: 22STCV25091 MARTHA GARCIA vs
JADE ENTERPRISES, LLC et al.
Moving Party: Defendants JADE
ENTERPRISES, LLC, LAKE ONE CAPITAL, LLC, LAKE TWO CAPITAL, LLC, and BEVERLY
MANAGEMENT GROUP, INC.
Responding Party: Plaintiff
Notice: Sufficient
Ruling: MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION ARE DENIED
Background
On August 5, 2020, at
3:45 p.m., Plaintiff exited the Union Bank located at 70 South Lake Avenue,
Pasadena, California 91101, walked to her vehicle, and tripped and fell over a
speed bump located in the parking garage of the Property. Defendants JADE ENTERPRISES,
LLC ("Jade Enterprises"), LAKE ONE CAPITAL, LLC, LAKE TWO CAPITAL,
LLC ("Lake Two Capital"), and BEVERLY MANAGEMENT GROUP, INC.
("Beverly Management") (collectively "Defendants") move the
Court for summary judgment or, in the alternative, summary adjudication on the
following issues:
Issue No. 1: Defendants
are entitled to summary adjudication as to Plaintiff’s First Cause of Action
for Negligence because the condition of which Plaintiff complains was open and
obvious, and Defendants did not owe any further duty to protect against the
incident.
Issue No. 2: Defendants
are entitled to summary adjudication as to Plaintiff’s Second Cause of Action
for Premises Liability because the condition of which Plaintiff complains was
open and obvious, and Defendants did not owe any further duty to protect against
the incident.
Issue No. 3: Defendants
are entitled to summary adjudication as to Plaintiff’s Third Cause of Action
for Breach of Warranty because the condition of which Plaintiff complains was
open and obvious, and Defendants did not owe any further duty to protect against
the incident.
Issue No. 4: Lake Two
Capital and Beverly Management are entitled to summary adjudication as to
Plaintiff’s Fourth Cause of Action for Strict Liability because the alleged
dangerous condition of the speed bump is not a product.
Issue No. 5: Jade
Enterprises is entitled to summary adjudication as to Plaintiff’s First Cause
of Action for Negligence and Second Cause of Action for Premises Liability
because it did not own or manage the subject premises.
Legal Standard
In reviewing a motion
for summary judgment or adjudication, courts must apply a three-step analysis:
“(1) identify the issues framed by the pleadings; (2) determine whether the
moving party has negated the opponent’s claims; and (3) determine whether the
opposition has demonstrated the existence of a triable, material factual
issue.”¿(Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
“[T]he initial burden
is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.”¿(Code
Civ. Proc., § 437c, subd. (p)(2).)¿If
the moving party fails to carry its burden, the inquiry is over, and the motion
must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare
(2001) 91 Cal.App.4th 454, 468.)¿Even
if the moving party does carry its burden, the non-moving party will still
defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)
To meet this burden of
showing a cause of action cannot be established, a defendant must show not only
“that the plaintiff does not possess needed evidence” but also that “the
plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar,
supra, 25 Cal.4th at p. 854.)¿It
is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero
v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The
defendant “must also produce evidence that the plaintiff cannot reasonably
obtain evidence to support his or her claim.”¿(Ibid.)¿The
supporting evidence can be in the form of affidavits, declarations, admissions,
depositions, answers to interrogatories, and matters of which judicial notice
may be taken.¿(Aguilar, supra, 25
Cal.4th at p. 855.)
“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not
merely rely on allegations or denials of its pleadings to show that a triable
issue of material fact exists, but instead, “shall set forth the specific facts
showing that a triable issue of material fact exists as to the cause of
action.”¿(Ibid.)¿“If
the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463,
467.)
The court must “liberally construe the evidence in
support of the party opposing summary judgment and resolve all doubts
concerning the evidence in favor of that party,” including “all inferences
reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25
Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore
consider what inferences favoring the opposing party a factfinder could
reasonably draw from the evidence.¿While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only
when the inferences are indisputable may the court decide the issues as a
matter of law.¿ If the evidence is in conflict,
the factual issues must be resolved by trial.”¿(Binder
v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further,
“the trial court may not weigh the evidence in the manner of a factfinder to
determine whose version is more likely true.¿[Citation.]¿Nor
may the trial court grant summary judgment based on the court’s evaluation of
credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex
rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts
deciding motions for summary judgment or summary adjudication may not weigh the
evidence but must instead view it in the light most favorable to the opposing
party and draw all reasonable inferences in favor of that party”].)
Evidentiary Ruling
Plaintiff’s objection
to Defendants' use of their discovery responses to meet their initial burden is
sustained (Code Civ. Proc., § 2030.410). Plaintiff’s objection to the
Declaration of Krauss is overruled. Defendants’ objections No. 1-3 are
overruled. The parties did not make any other objections to evidence that were
material to the Court’s ruling (CCP § 437c(q)).
Undisputed Facts
·
On August 5, 2020, after exiting the
Union Bank located at 70 South Lake Avenue, Pasadena, California 91101
(“Property”) at around 3:45 p.m., and while walking to her parked vehicle in
the parking garage, Plaintiff tripped and fell over a speed bump located in the
parking garage of the Property (the “Incident”).
·
The speed bump is approximately one foot
wide, four feet long and two inches tall.
·
At the time of the Incident, the speed bump
was black with yellow stripes and signs of wearing.
·
The speed bump was located on gray
concrete flooring near a section of flooring that was painted a darker grey
with blue, black, and white striping.
·
Plaintiff did not notice any debris on
the speed bump at the time of the Incident.
·
Plaintiff testified that there were
lights in the parking garage at the time of the Incident but does not recall
the brightness of the lights.
·
The Incident happened during the day
while it was sunny outside with also light shining through the entrance from
Green Street, which is the same entrance Plaintiff drove through to enter the
parking garage.
·
There was enough space in the parking
garage that a person could walk around the speed bump.
·
Plaintiff’s husband (Jose Mercado), her
attorney (Estela Richeda), and her granddaughter (Katlin Torres), were walking
along with her in the parking garage at the time of the Incident.
·
Prior to leaving the parking garage that
day, Plaintiff’s attorney, Estela Richeda, notified a third-party security
guard, Robert Magallanes) (“Magallanes”) of Allied University Security
Services, of the Incident, who then prepared an incident report and took photos
of the speed bump.
Strict Liability
Plaintiff has dismissed
her cause of action for strict liability against Lake Two Capital and Beverly
Management. Therefore, summary adjudication No. 4 is moot.
Jade Enterprise
Defendant Jade
Enterprises argues that it is entitled to summary judgment or adjudication as
to Plaintiff’s First Cause of Action for Negligence and Second Cause of Action
for Premises Liability because it did not own or manage the subject premises.
Jade Enterprises cites Undisputed Material Facts (UMF) 2, 3, and 4; however,
these undisputed facts are supported solely by Defendants’ discovery responses.
No declaration, documents, or other evidence besides Defendants’ own discovery
responses have been produced to meet Defendant Jade’s initial burden.
“At the trial or any
other hearing in the action, so far as admissible under the rules of evidence,
the propounding party or any party other than the responding party may use any
answer or part of an answer to an interrogatory only against the responding
party.” (Code Civ. Proc., § 2030.410, italics added.) Thus, the responding
party may not use its own interrogatory responses in its own favor. (Great
American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445,
450.)
Jade Enterprises relies
solely on the defendants' discovery responses, which are admissible only
against the defendants/responding party and not Plaintiff; therefore, it has
failed to meet its initial burden.
Furthermore, Plaintiff
produced the general liability policy of insurance for the subject building,
where Jade Enterprises is the named insured on a $2,000,000 policy (Plaintiff’s
Exhibit “I”), raising a triable issue of fact relating to Jade Enterprises’
control over the Property.
Summary adjudication as
to Issue no. 5 is DENIED.
Notice of the Dangerous Condition
Defendants argue that
they lacked prior notice of the hazard posed by the speed bump. To support
this, Defendants present several pieces of evidence, including their own discovery
responses. However, as previously noted, discovery responses are only
admissible as evidence against the responding party. In this case, Plaintiff
did not provide or rely on these responses, leaving the deposition testimony of
Magallanes as the only admissible evidence offered by Defendants to support
their contention that they lacked notice. (Deposition testimony of Robert
Magallanes at 83:13-16.) Defendants did not provide any declarations or reports
demonstrating the absence of notice.
Magallanes’ testimony provides
conflicting information. Magallanes testified that he heard from his supervisor
about people tripping at the location (Magallanes Depo. 20:22-23:12). Contrary
to Defendants’ objections, this testimony is not inadmissible hearsay when used
to show that Defendants were aware of potential hazards. (See People v.
Fields (1998) 61 Cal.App.4th 1063, 1068 (statements are not hearsay if they
are offered to demonstrate awareness or knowledge of a condition rather than to
prove the truth of the matter asserted)).
Defendants argue in their
Reply that Plaintiff omitted Magallanes’ statement, “I heard of people tripping
but I'm not a witness and I've never heard about anyone actually falling.” This
statement appears to distinguish between tripping and falling. However,
Defendants have not demonstrated why this distinction is significant in
determining whether the speed bump was hazardous. Reports of tripping incidents
are sufficient to raise a triable issue of fact regarding whether Defendants
had notice of a potential hazard, and Defendants have not provided sufficient
reasoning to persuade the court otherwise. Accordingly, summary judgment based
on a lack of notice is DENIED.
Open and Obvious
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).)¿¿
The court may determine
a condition is open and obvious where “photographs prima facie establish[] the
obviousness” of the condition. (Martinez,
supra, 121 Cal.App.4th at 1184.)
In examining photographs, the court should consider: (1) the photograph’s
subject (i.e., its focal point); (2) the view of the subject (e.g., close-up,
distant isolated, in context); (3) the photograph’s perspective (e.g.,
eye-level, overhead, ground-level); (4) the use of any plain-view altering
devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5)
the characteristics of the photograph (e.g., sharp and clear, blurry, grainy,
color or black and white); (6) whether the photograph was taken under identical
or substantially similar conditions (e.g., timing, lighting, weather); and (7)
any other relevant circumstances (e.g., addition of extrinsic aids, such as a
ruler or pointer). (Kasparian v.
Avalonbay, (2007) 156 Cal.App.4th 11, 25.)
Defendants’ Initial Burden
Defendants’ initial
burden is supported by the following evidence:
·
The speed bump was approximately one
foot wide, four feet long, and two inches tall.
(Declaration of David A. Krauss, Ph.D., ¶ 6(a), and the deposition of
Robert Magallanes 49:5-24 [Ex. P].)
·
The speed bump was black with yellow
stripes and showed signs of wear at the time of the incident. (Declaration of
Dr. Krauss, Plaintiff’s deposition 48:7-13, 70:7-17, 72:2-20, Exhibit 3 [Ex.
C], and Magallanes’ deposition 80:2-7 [Ex. P].)
·
The speed bump was positioned on light
gray concrete flooring adjacent to a darker gray section marked with blue,
black, and white stripes. (Dr. Krauss’ declaration and Plaintiff’s deposition
48:7-13, 79:2-11, 94:9-25, 95:1-19 [Ex. C].)
·
Plaintiff confirmed that the parking
garage had lights and that daylight from the Green Street entrance provided
additional illumination. (Plaintiff’s Deposition 28:23-25, 29:1-5, 70:18-25,
71:2-3, 71:3-16, 80:7-20, Exhibit 3 [Ex. C].)
·
Plaintiff testified that there was no
debris on the speed bump. (Plaintiff’s deposition 70:7-11 [Ex. C].)
·
There was enough space in the garage to
walk around the speed bump. (Dr. Krauss’
declaration, Plaintiff’s deposition 62:5-13 [Ex. C], and Magallanes’ deposition
82:22-25, 83:1-4 [Ex. P].)
Defendants provided
photographs depicting the contrast between the black speed bump and the
surrounding light gray concrete, adequate lighting, and no obstructions. (Def’s
Ex. M and N.) Defendants’ expert, Dr. David Krauss, opined that an attentive
pedestrian in Plaintiff’s position would have been able to see the speed bump
and safely traverse or avoid it. (Krauss Decl. ¶ 6.) This evidence collectively
indicates that Defendants have met their initial burden by showing that the
speed bump was open and obvious.
Triable Issue of Fact
The aforementioned
facts regarding the physical features of the speed bump and its visibility are
not disputed by Plaintiff. However, in examining photographs, the court should
consider factors such as the view of the subject (e.g., close-up, distant, isolated,
in context) and the photograph’s perspective (e.g., eye-level, overhead,
ground-level) (Kasparian v. AvalonBay Communities, Inc. (2007) 156
Cal.App.4th 11, 25).
The court notes that
Defendant’s photographs, Exs. M and N, primarily depict the speed bump in
close-up shots or from an angle facing the bank. These perspectives do not
align with Plaintiff’s viewpoint when walking out of the bank toward the gate.
Plaintiff’s Ex. E and Fig. 1 of Dr. Krauss’ declaration show the speed bump
from Plaintiff’s perspective. From this angle, the court observes that the
speed bump does not necessarily appear open and obvious for several reasons.
First, it blends with the dark gray concrete floor in front of it. Second, half
of the yellow stripes on the speed bump are missing, with only those near the
adjacent yellow traffic divider remaining visible. Third, the speed bump spans
only about one-third of a single lane in the two-lane roadway. Fourth, there
are various colored stripes in front of the speed bump that could be
distracting.
This analysis is
supported by Plaintiff’s expert, Kuba Glazek, who opines that the speed bump
had lower contrast against its surroundings compared to other visual elements,
such as stripes and stencils, which could divert attention. (Declaration of
Kuba Glazek, ¶¶ 12-13.) Additionally, Plaintiff’s expert, Brad Avrit, states
that the speed bump was not open and obvious, explaining that pedestrians in
parking garages often scan for moving vehicles, signage, and their own vehicle,
and do not look directly down at their feet during normal walking. The speed
bump was in a foreseeable pedestrian pathway and was significant enough in
height to be a serious trip hazard while simultaneously being low enough to go
unnoticed by an unexpecting pedestrian. (Declaration of Brad Avrit, ¶ 10, 13.)
The present case is
similar to a line of cases where the obviousness of a condition does not
absolve defendants of liability. This applies when people would not expect to
find the condition in that location, are likely to be distracted as they
approach, or are otherwise unlikely to notice it, even though it could be
safely avoided if seen. Negligence may exist in maintaining an obvious
condition in a place where it might not reasonably be noticed. (Henderson v.
McGill (1963) 222 Cal.App.2d 256, 260–261.)
In Hodge v.
Weinstock, Lubin & Co. (1930) 109 Cal.App. 393, the plaintiff was
injured after tripping over the edge of a low, movable platform in an aisle of
the defendant’s store. Display counters were positioned on both sides of the
aisle at about 28 inches high, and the platform extended approximately 12
inches into the aisle. The plaintiff, distracted by the displays and moving
through a crowd, did not see the platform and tripped. The court noted that the
store had a duty to keep its aisles safe for customers, stating: "It was
the defendant’s duty, when it invited the public into its store, to exercise
ordinary care to keep the aisles and passageways reasonably safe and not expose
customers to unnecessary danger. Evidence showed the platform, only six inches
high, was placed where crowds gathered, encroached into the aisle, and was
surrounded by elevated displays that drew customers’ attention upward. This
created an environment where the platform could easily go unnoticed, justifying
the jury’s consideration of negligence."
Defendants contend that
the Court can disregard expert opinion on whether the defect was dangerous,
arguing that “there is no need for expert opinion. It is well within the common
knowledge of lay judges and jurors just what type of a defect in a sidewalk is
dangerous” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732).
The court notes that Fielder addresses trivial defects, not open and
obvious dangerous conditions. Defendants have not provided any case law
establishing that expert opinion can be disregarded when assessing an open and
obvious dangerous condition.
While Fielder
suggests that lay judges and jurors possess sufficient common knowledge to
determine the danger posed by sidewalk defects, there is an established body of
law specifying factors such as the size of the displacement that courts must
consider when determining whether a defect is trivial. Defendants have not
cited any comparable body of law guiding the court’s assessment of open and
obvious dangerous conditions.
Furthermore, based on
the photographic evidence taken from Plaintiff’s perspective, the court finds
that reasonable minds could differ as to whether the speed bump was open and
obvious, particularly when considering whether a person might be distracted as
they approach or otherwise unlikely to notice the condition, even if it could
be safely avoided if seen. (Henderson, 222 Cal.App.2d at 260–261.)
The speed bump blends with the dark gray
concrete directly in front of it, and half of its yellow stripes are missing.
Additionally, the speed bump is relatively small, and the presence of colored
stripes further complicates its visibility. These factors lead the court to
conclude that this is not a straightforward matter of common knowledge and may
require expert analysis to fully assess its visibility and potential danger.
Here, there are conflicting expert opinions, creating a triable issue of fact.
Thus, summary judgment is denied, and summary adjudication as to issues 1-3 are
DENIED.
PLEASE TAKE NOTICE:
If a party intends to submit on
this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT”
followed by the case number.¿The body of the email must include the hearing date and
time, counsel’s contact information, and the identity of the party submitting.
Unless¿all¿parties submit by email to this
tentative ruling, the parties should arrange to appear remotely (encouraged) or
in person for oral argument.¿You should assume that others may appear at the hearing
to argue.
If the parties neither submit nor
appear at hearing, the Court may take the motion off calendar or adopt the
tentative ruling as the order of the Court.¿ After the Court has issued a
tentative ruling, the Court may prohibit the withdrawal of the subject motion.