Judge: Michael E. Whitaker, Case: 21STCV18928, Date: 2023-01-20 Tentative Ruling
Case Number: 21STCV18928 Hearing Date: January 20, 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
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DEPARTMENT |
32 |
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HEARING DATE |
January 20, 2023 |
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CASE NUMBER |
21STCV18928 |
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MOTION |
Motion for Summary Judgment |
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Defendants William Sadleir and Hannah Sadleir | |
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OPPOSING PARTY |
Plaintiffs Fatina Armaly and Haney Armaly |
MOVING PAPERS:
OPPOSITION PAPERS:
REPLY PAPERS:
BACKGROUND
Plaintiffs Fatina Armaly and Haney Armaly (collectively, Plaintiffs) sued Defendants William Sadleir and Hannah Sadleir (collectively, Defendants) for premises liability, general negligence, and loss of consortium. Plaintiffs allege that Plaintiff Fatina Armaly (Fatina) was standing on Defendants’ concrete patio when she took a step backwards onto the unexpectedly uneven grass, twisting her foot and falling to the ground. Plaintiffs therefore allege Defendants failed to maintain the property in a reasonably safe condition and failed to remove all known hazards present on the property.
Defendants move for summary judgment on Plaintiffs’ first amended complaint (FAC). Plaintiffs oppose the motion. Defendants reply.
LEGAL STANDARD – MOTION FOR 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”].)
JUDICIAL NOTICE
The Court grants Defendants’ request for judicial notice of Plaintiffs’ FAC.
EVIDENCE
The Court sustains Defendants’ evidentiary objections to the Declaration of Philip L. Rosecu , P.E., in its entirety, pursuant to Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.
DISCUSSION
Plaintiffs’ FAC asserts three causes of action against Defendants: (1) premises liability, (2) general negligence, and (3) loss of consortium. Defendants move for summary judgment on the FAC arguing that the subject condition was open and obvious.
The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) 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 cause for action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927).
Defendants move for summary judgment on the ground that Plaintiffs cannot establish that Defendants owed a duty to Plaintiffs. Defendants asserts they did not owe a duty to Plaintiffs because purported dangerous condition -- the varied height differential between the concrete patio and grassy area -- was open and obvious.
Generally, a defendant 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 “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.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)
“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant 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); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].)
Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence. The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)
Defendants advances the following Undisputed Material Facts (UMF) with supporting evidence in support of their proposition that the varied change in the elevation from the patio to the grass area was open and obvious:
The incident occurred when Plaintiff stepped back from the concrete patio in Defendants’ back yard.
Immediately before her accident, Ms. Armaly was standing on the concrete patio adjacent to the transition from the concrete patio to the lawn facing the house and with her back to the grass lawn.
As she stepped backwards with her right foot while facing forward, Ms. Armaly fell onto the lawn adjacent to the concrete patio.
The accident occurred in afternoon sun during which time Ms. Armaly was socializing with her son and Mrs. Sadleir.
The change in elevation from the patio deck surface to the lawn where Ms. Armaly fell is 2 ¾ inches, increasing to a maximum 9 ¾ inches where the lawn abuts steps in the patio. Those two points are approximately four feet, eight and one half inches (4’ 8.5”) apart. Between the two points, the grass surface was lower in elevation by no less than two and three-quarter inches (2.75”) and no more than nine and three-quarter inches (9.75”) than the patio deck surface.
The concrete patio area from where Ms. Armaly fell onto the lawn had a dry surface without bumps, cracks or other defects.
Ms. Armaly stepped backwards under her own motivation from the concrete patio on to the lawn, and she was not looking where she was stepping.
The weather was clear and sunny, and there was plenty of natural light on the afternoon of the accident.
There was a stark contrast delineating the transition between the light colored concrete patio deck and the darker and green lawn.
In the natural light, the transition between the deck surface and the grass lawn was plainly visible on casual inspection, including a small and notable difference in elevation between the two.
Ms. Armaly was familiar with the location, and the date of loss was not the first time that Ms. Armaly had visited the residence.
Exhibit 5 to the Deposition of Fatina Armaly shows the location of Plaintiff’s fall, and depicts how that location appeared on the day of Plaintiff’s fall.
(UMF, Nos. 4-5, 7-8, 11, 13-18, 25.)
In summation, Defendants argue that the afternoon sun, the stark contrast delineating the transition between the grey concrete to the dark green lawn, and the elevation change demonstrate the obviousness of the condition. Defendants further argue that it was not the condition of their property that caused Fatina to fall, but rather her failure to look where she was going, as the evidence shows she was stepping backward while facing forward when she fell.
However, the Court notes that while some of the photographs advanced by Defendants display the “stark” elevation change between the concrete patio and grass as open and obvious, other photographs, which are taken from a perspective likely closer or similar to that of Fatina at the time of the incident, give the appearance that the grass is either flush or nearly flush with the concrete patio. For example, the Court highlights the photos taken by Dean J. Vlahos which are marked as 20015-16, 20015-17, 20015-18, 20015-19 and 20015-21. (See Declaration of Dean J. Vlahos, Exhibit B.) The Court notes that the photos may demonstrate to a trier of fact that from the position of Fatina before she took a step backwards, the drop off or varied height differential between concrete and patio may have been obscured or difficult to perceive, and instead gave the appearance that the grass was flush or nearly flush with the concrete patio.
Accordingly, the Defendants have failed to establish that the purported dangerous condition related to the transition between concrete patio and grass was so open and obvious that a person could reasonably be expected to see it, and the condition itself served as a warning such that Defendants were under no further duty to remedy or warn of the condition. In short, the Court finds that Defendants have not met their initial burdens of production and persuasion. Consequently, the Court determines that the burden of production does not shift to Plaintiffs to produce evidence that raises triable issues of material fact.
CONCLUSION AND ORDER
In considering the competent evidence proffered by Defendants, and viewing the evidence in a light most favorable to Plaintiffs, the Court finds that there are triable issues of material fact as to whether the dangerous condition of the transition from the concrete patio to the grass was open and obvious, and thus cannot determine, as a matter of law, that Defendants are not liable for the claims of premises liability, general negligence and loss of consortium.
Therefore, the Court denies Defendants’ motion for summary judgment. The Clerk of the Court shall provide notice of the Court’s ruling.
[1] Defendants advance additional evidence in connection with their reply papers. The Court declines to consider that evidence (see Supplemental Declaration of William K. Enger), as Plaintiffs have not had an opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)