Judge: Michael E. Whitaker, Case: 20STCV20281, Date: 2023-05-01 Tentative Ruling

Case Number: 20STCV20281    Hearing Date: May 1, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Motion for Summary Judgment by Kaiser Foundation Hospitals
2. Request for Judicial Notice
3. Separate Statement
4. Declaration of Stephanie Guerra in Support of Motion by Kaiser Foundation Hospitals for Summary Judgment

OPPOSITION PAPERS:

1. Opposition by Plaintiff Sofia Ashikian’s Memorandum of Points in Support of Opposition to Kaiser Foundation Hospitals Motion for Summary Judgment
2. Separate Statement
3. Declaration of Araksya Boyadzhyan in Support of Plaintiff Sofia Ashikian’s Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply in Support of Motion by Kaiser Foundation Hospitals for Summary Judgment

BACKGROUND

            Plaintiff Sofia Ashikian (“Plaintiff”) sued Defendant Kaiser Foundation Hospitals (“Defendant”) for negligence and premises liability on a slip-and-fall that occurred on premises owned and operated by Defendant. Plaintiff alleges she sustained injuries when she slipped and fell on a “substance/paint” that was left on the grounds of the premises. (Complaint, p. 4.)

Defendant moves for summary judgment on Plaintiff’s complaint. Here, Defendant moves for summary judgment on the ground that Defendant did not owe a duty of care because the dangerous condition was open and obvious, and there is no causation because Plaintiff’s distracted state caused her injuries despite the open and obvious condition.

            Plaintiff opposes the motion.  Defendant replies. 

LEGAL STANDARD – SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.”  (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“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.  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 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; 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”].)

REQUEST FOR JUDICIAL NOTICE

            Defendant requests that the Court take judicial notice of the Complaint filed in this action on May 28, 2020. The Court grants this unopposed request pursuant to Evidence Code sections 452 and 453.

DISCUSSION

1.      NEGLIGENCE AND PREMISES LIABILITY - ELEMENTS

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242.)  Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)

a.      OPEN AND OBVIOUS DANGEROUS CONDITION

Defendant argues that area where Plaintiff slipped and fell was painted red, and coupled with warning signs including “cones” and verbal cues, was open and obvious, and Plaintiff nevertheless traversed the area in question which led to her fall and injuries.  In other words, Defendant contends it is “no[t] liable for injury resulting from an obvious danger or one that could have been observed had [Plaintiff] exercised ordinary care . . . .”  (Mula v. Meyer (1955) 132 Cal.App.2d 279, 287.)  

To establish negligence, a plaintiff must prove duty, breach of duty, causation and damages. Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors.  These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty.  The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.  Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.

(Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].)  “Foreseeability of harm is typically absent when a 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.”  (Id. at p. 447 [cleaned up].)   Similarly, in Krongos, the Court of Appeal held “[g]enerally, 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.”  (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 (hereafter Krongos).)

“However, this is not true in all cases. It is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger may lead to the legal conclusion that the defendant owed a duty of due care to the person injured.”  (Krongos, supra, 7 Cal.App.4th at p.  393 [cleaned up].)  Stated differently, “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184 (hereafter Martinez).)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but if “if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122 (hereafter Osborn).)

Further, a court may determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition.¿ (Martinez, supra, 121 Cal.App.4th at p. 1184.)¿ In examining photographs, a 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 Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.)¿ 

Defendants argue that the wet red paint was an open and obvious condition. Defendants put forward evidence of photographs taken by Plaintiff after the accident. (Guerra Decl., Ex. A. [Plaintiff’s Depo. 23:15-19, 27:24-29:11, 32:6- 21]; Exs. D, E [photographs].) Defendants argue that these photographs show that there were multiple warning signs, including yellow barriers in front of the red painted crosswalk and orange cones located 2-3 feet from where Plaintiff fell. Although these photographs show yellow poles and “orange cones,” these objects are not clearly warning signs of the wet paint. As it appears from the photographs, both the yellow poles and the “orange cones” appear to be permanent traffic-related indicators, not warnings of the wet paint. The yellow poles appear to be permanently in the ground and appear to mark the boundary between the sidewalk and the road. As it appears from Exhibit C, the yellow poles line the front of the building along the sidewalk, not merely in front of the red paint. The orange cones appear to be marking parking in front of the building. As it appears from Exhibit D and E, the “orange cones” do not appear to be blocking access to the wet paint from anyone that is walking from the building towards the parking lot. Neither the yellow poles nor the orange cones contain any words stating, for example, “WET PAINT” or an arrow pointing out the presence of the wet paint.

Mr. Romero, an employee of Defendant, states in his deposition that he observed other people walking around the area that had been painted. (Guerra Decl., Ex. B. [Romero Depo. 43:4-44:2].) However, the fact that other people walked around the subject area does not show that the condition was open and obvious.

Thus, the photographs and Mr. Romero’s statement do not sufficiently show that the wet red paint was an open and obvious condition. Defendant’s burden is not met with this evidence. Further, even if this evidence did show an open and obvious condition, Plaintiff’s decision to encounter an obvious hazard will not entirely relieve Defendant of any duty but will be treated as an aspect of comparative fault.  “The unspoken but operative principle … is foreseeability: it is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.” (Osborn, supra, 224 Cal.App.3d at p. 122.) Defendant puts forward no argument or evidence that shows that it would not be foreseeable that any reasonable person would walk across the wet paint.

Moreover, Plaintiff testified that the “orange cones” were there every time that she went to the medical office. (Boyadzhyan Decl., Ex. A [Plaintiff’s Depo. 32:22-25].) The fact that Plaintiff saw the cones every time she went to the office creates a dispute about a material fact as to whether the “orange cones” sufficiently would have warned a patron about wet paint.  Even Mr. Romero’s deposition testimony raises triable issues of material fact as to whether the “orange cones” depicted in the pictures proffered by the parties are the same cones used to warn patrons of the red paint.  In particular, Mr. Romero testified that the “orange cones” in the pictures were not the cones placed by the painting crew:  “I don’t know who placed that.  We had already picked up our cones.”  (Boyadzhyan Decl., Ex. B [Romero Depo. 22:23-23:6; see also Romero Depo. 24:6-25:14].) 

b.      CAUSATION

Defendant also argues that Plaintiff cannot show causation because Plaintiff was distracted when she slipped and fell. Defendant puts forward the deposition of Mr. Romero, a Kaiser employee, who states that he saw Plaintiff talking on the phone prior to the fall. (Guerra Decl., Ex. B [Romero Depo. 21:19-23].) Mr. Romero also states that he told Plaintiff to “be careful” three times prior to the fall. (Guerra Decl., Ex. B [Romero Depo. 21:24-22:4].) It is also undisputed that Plaintiff was holding a baby and baby bag at the time of the fall. (UMF No. 7.)

This evidence does not meet Defendant’s burden of showing that there was no causation.

Causation consists of actual and proximate causation. Defendant’s negligence is the actual cause of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) The proximate cause doctrine relieves defendants from liability for injuries they in fact caused, based on considerations of policy and justice. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

Plaintiff’s own conduct can be the sole proximate cause, or superseding cause, of his or her harm and relieve a defendant of liability. (See e.g., Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 133.) The issue of superseding cause “is concerned with whether or not, assuming that a defendant was negligent and that his negligence was an actual cause of the plaintiff’s injury, the defendant should be held responsible for the plaintiff’s injury where the injury was brought about by a later cause of independent origin.” (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199.) This inquiry “revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant” is liable “towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff’s injuries.” (Ibid.)  “[F]or an intervening act properly to be considered a superseding cause, the act must have produced ‘harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.” (Kahn v. East Side Union High School (2003) 31 Cal.4th 990, 1016-1017.)

Here, Defendants do not attempt to argue that it is not foreseeable that a patron would be talking on a cell phone or holding a child when exiting the medical facility. Thus, Plaintiff’s own conduct cannot be a superseding cause such that Defendant is relieved from liability.

These statements by Mr. Romero, if anything, show Plaintiff’s comparative negligence. Plaintiff’s comparative negligence does not negate Defendant’s duty or causation, and the defense of comparative negligence is not an absolute defense, but only will reduce the amount of damages. (Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1259.)

Thus, Defendant has not met its burden of showing there is no causation. Even if this evidence met Defendant’s burden, Plaintiff puts forward evidence that disputes these facts. Plaintiff stated in her deposition that she was not holding anything else, and when asked if she was using a cell phone at the time of the fall, she states “No, not that I recall.” (Boyadzhyan Decl., Ex. A [Plaintiff’s Depo. 9:23-10:3].) Plaintiff also stated in her deposition that she did not hear anyone yell at her to stop and look out. (Boyadzhyan Ex. A [Plaintiff’s Depo. 21:8-16.) Thus, even if Defendant had met its burden with Mr. Romero’s deposition, Plaintiff’s deposition creates a dispute of material fact as to whether Plaintiff was on a phone call or if Defendant warned Plaintiff of the wet paint.

 CONCLUSION AND ORDER

            The Court denies Defendant’s motion for summary judgment because Defendant not met its initial burdens of production and persuasion that no triable issue of material fact exists. Even if the Court were to find that Defendant met its initial burdens, the Court would still deny the motion for summary judgment because Plaintiff has met burden of production to establish triable issues of material regarding Defendant’s Undisputed Material Facts Nos. 11, 14, 15, 16, 17, 18 and 19.  Stated differently, the Court is unable to find that as a matter of law Defendant is not liable to Plaintiff for the claims of negligence or premises liability. 

            The Clerk of the Court shall provide notice of the Court’s ruling.