Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV03987, Date: 2025-01-15 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV03987, Date: 2025-01-15 Tentative Ruling

Defendant/Cross-Complainant/Cross-Defendant Scott D. Bader and Defendant/Cross-Defendant 93 Eighty LP (“Defendants”) move the Court for summary judgment or adjudication on the ground that Plaintiff Milaud Talebizadeh (“Plaintiff”) cannot prove that Defendants breached any duty of care because the pallet at issue was and should have been “open and obvious” to Plaintiff, Defendants did not have actual or constructive notice of the alleged dangerous condition, Defendants did not reside at the premises, did not own the pallet, and did not place it on the sidewalk, and the condition did not exist for a sufficient length of time for Defendants to become aware of its existence. Plaintiff opposes the motion on the ground that notice and whether the condition was open and obvious are questions of fact warranting denial of the motion.

The Court has not considered “Defendants [sic] Reply to Plaintiff’s Opposing Separate Statement Re Motion for summary Judgment” in support of their motion, as this document is a reply separate statement not authorized by statute, and Defendants failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].)

“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.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

In support of the motion, Defendants provide evidence that they own the premises located at 467 South Swall Drive in Beverly Hills, but neither Bader nor any representative of 93 Eighty, LP resided at or regularly occupied the premises at the time of the subject incident; a pallet was placed on the sidewalk near the premises on September 15, 2021 at approximately 5:00 p.m.; Plaintiff was walking on the sidewalk near the premises on September 17, 2021, looking at his phone, and failed to look up to check his surroundings when he tripped over the pallet; Defendants did not receive any complaints of any dangerous conditions or safety issues at the premises on the date of the subject accident or in the days prior; and at the time of the incident, the sidewalk was dry, and the weather was sunny and clear. (Defs.’ UMF Nos. 1-12.)

“A harm is typically not foreseeable if the dangerous condition is open and obvious. 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. 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.” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 145-146, quotations marks and citations omitted.) As to whether the condition was open and obvious, Plaintiff argues that Defendants’ evidence showing surveillance footage of the street with the wooden pallet placed on the sidewalk does not establish as a matter of fact and law that the dangerous condition was open and obvious because the screenshots show the pallet on the sidewalk, but a tree is located just before the pallet, so it is not clear that there is nothing obstructing Plaintiff’s view before the pallet. However, Plaintiff provides no evidence to this effect, i.e., Plaintiff could have provided his own declaration stating that his view was obstructed in some way, but he has not done so. Thus, the Court finds that Defendants have met their burden of establishing the dangerous condition was open and obvious, and Plaintiff has failed to provide competent evidence creating a triable issue of material fact as to that issue.

Defendants also argue they lacked notice of the dangerous condition. As to liability for a dangerous condition on one’s property, “[i]f the dangerous condition is brought about by third persons,” which the parties agree is the case here given Bader’s children are represented to have placed the pallet in the sidewalk, “then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. Actual knowledge is defined as express information of a fact, while constructive knowledge is that which is imputed by law.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1208-1209, quotations marks and citations omitted.) While it is undisputed that the pallet was placed on the sidewalk for two days, it is also undisputed that neither Bader nor an agent of 93 Eighty LP lived at the property, and Bader provides evidence that he was not aware of the condition and had not received any information or complaints about the condition. Plaintiff argues that it is not clear that Bader had not visited the property, but again, Plaintiff provides no evidence to this effect, and Plaintiff could have obtained information about Bader’s knowledge or presence at the property during Bader’s deposition. There is also no basis to conclude that a party can be held liable for the party’s children’s conduct simply based on blood alone, as Plaintiff asks the Court to do here, when Bader did not reside at the property with the children. Thus, the Court finds that Defendants have met their burden of establishing they lacked actual and constructive notice of the dangerous condition, and Plaintiff has failed to provide competent evidence creating a triable issue of material fact as to that issue.