II. Motion for Summary Judgment 

Sussex contends they are entitled to judgment as a matter of law because Plaintiff stated she did not notice the parking block because she was looking straight ahead for potholes in the parking area. Sussex avers that even if the parking block/wheel stop had been painted a distinctive color, she still would have fallen. Furthermore, Sussex argues that Plaintiff has lived at the complex for four years prior to the incident, and she had never complained about the parking stop. Sussex has no record of any prior similar incidents in the complex comprised of at least 60 units. Sussex avers that the vertical portion of the wheel stop is sufficiently high as to be open and obvious to any normally attentive person, and Sussex did not create or fail to remedy a dangerous condition on its property. Sussex contends Plaintiff has no evidence of that a dangerous condition existed.  

In opposition, Plaintiff contends she had only entered the parking area from the north side of the building 1 or 2 times in the four years prior to the incident, and she was “scanning” the area as she walked from the raised walkway to her parking stall. Plaintiff contends another wheel stop had been painted yellow, but the wheel stop she tripped over was unpainted and provided her no notice that it was in her path. Therefore, Plaintiff contends the wheel stop was a dangerous condition for pedestrians stepping down from the walkway to cross the parking area because Plaintiff did not perceive it while looking forward.  

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.)   

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66, 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) 

“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.)  However, this is not always the case.  (Ibid.)  “[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.)  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.)   

Foreseeability is an elastic factor, and the degree of foreseeability necessary to warrant a finding of a duty will vary from case to case.  (Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 509.)  In determining whether a given harm was foreseeable, “it is necessary to review the ‘totality of the circumstances’ including the nature, condition and location of the defendant's premises [Citation], in light of the firmly established rule that ‘what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]’ ”  (Id.) 

The Court may, in appropriate circumstances, 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, 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 Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.) 

Plaintiff resided at The Willows beginning since 2014. (UMF 1.) Sussex owned and managed the property. (UMF 2.) The parking area included 30 wheel stops, each which extended across two parking spaces, for a total of at least 60 parking spaces. (UMF 3.) The wheel stops were 6 feet long, 7 inches wide, and had a total height of 5.125 inches, and the vertical height of the wheel stop was 2.5 inches. (UMF 4.) The day was sunny and there was no water or other substances on the sidewalk. (UMF 6.) Prior to the incident, Plaintiff never complained to management about the color of the wheel stop, and does not know if anyone else ever complained about falling. (UMFs 8-9.) There have been no prior similar incidents of others at the property tripping and falling on gray concrete wheel blocks. (UMF 11.) Plaintiff has produced no evidence of any statutory or code violations regarding the wheel stops on the property. (UMF 14.) 

Plaintiff described the event leading up to her fall as follows: 

Q. Understood. When you -- when you first stepped off the curb, where were you looking?