SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Barbara Boland (“Plaintiff”) filed this action against Defendant Golf & Tennis Management, Inc. dba Westlake Golf Course for damages arising from an alleged off-centered wheel stop on a parking lot. The complaint alleges causes of action for general negligence and premises liability. Plaintiff alleges the wheel stop was near the dirt path close to the driving range used by persons to enter and exit that general location, and that the off-centered wheel stop created a dangerous condition. (Compl. at p. 4.) 

Defendant Golf & Tennis Management, Inc., erroneously sued as Golf and Tennis Management, Inc. dba Westlake Golf Course (“Defendant”) now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.  

 

A. Moving Argument 

Defendant argues it is entitled to summary judgment because it was not negligent and that the condition alleged was open and obvious, such that defendant had no duty to protect Plaintiff from an open and obvious condition.   

 

B. Opposing Argument 

Plaintiff contends the condition was not open and obvious, because Plaintiff’s view was obstructed by her husband and by two cars parked in the parking stalls, and that Plaintiff had no choice but to encounter the wheel stop to access the pedestrian walking path. 

 

C. Reply Argument 

Defendant concedes it is undisputed the parking stops were placed off-center across the line dividing the two parking spaces. However, Defendant contends the parking stop was still an open and obvious condition based on its dimensions.  

 

II. Request for Judicial Notice and Evidentiary Objections  

Defendant requests the Court take judicial notice of (1) Plaintiff’s Complaint and (2) Plaintiff’s deposition transcript. Request 1 is granted. Request 2 is denied. 

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.) 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103. 

“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.) 

Here, Plaintiff’s complaint alleges that she incurred injuries and damages on March 30, 2021, when she tripped and fell while walking across the parking lot on Defendant’s property, known as the Westlake Golf Course and located at 4812 Lakeview Canyon Rod in Thousand Oaks/Westlake Village, California. (UMF 1). Plaintiff claims that she tripped and fell over a wheel stop within the golf course parking lot that was placed “off-center” across two parking spaces. (UMF 2). At the time of the incident, Plaintiff and her husband were walking in the parking lot toward the driving range. (UMF 3). At the time of the incident, Plaintiff was walking behind her husband, who was approximately 10 feet ahead of her. (UMF 4). Plaintiff was watching her husband’s body and shoulders but not his feet as she followed him toward the driving range. (UMF 5). The subject wheel stop is made of concrete, is light gray in color and measures approximately 5’11” wide. 7 ¾” long and 4 7/8” high. (UMF 6). The distance between the subject wheel stop and the curb is approximately 27 ½”. (UMF 8). The asphalt of the subject parking lot is dark gray/black in color. (UMF 9). 

Defendant’s sole argument is that the wheel stop was an open and obvious condition. Defendant submits 4 photographs of the subject wheel stop at issue at various distances, from 10 feet away at the farthest point and facing a dirt path. The Court reviewed the photographs, and it appears that the wheel stop directly cuts across the solid white parking aisle line. Furthermore, the location of the wheel stop is near the dirt path leading to the driving range of the golf course. Based on the evidence submitted, the Court is unable to conclude that the wheel stop at issue was sufficiently noticeable based on its placement and misalignment with the parking stalls. Therefore, Defendant does not meet its moving burden to show that it is entitled to judgment as a matter of law. 

Even if Defendant did meet its burden, there are triable issues of material fact. As Plaintiff contends, the subject wheel stop is directly in front of an intended and perceivable path of travel, which persons may take when traveling between the parking lot and the driving range of the subject property. Further, Plaintiff testified that her view was obstructed by her husband in front of her, and by the two vehicles parked in the parking aisles. A fact finder may conclude that the white solid parking aisle line may mislead a person into believing there would be no wheel stop cutting across the line, or that there would be a wheel stop placed between the line division in such a manner close to a pedestrian dirt path is not open and obvious. Viewed in a light most favorable to Plaintiff, the placement of the wheel block and the facts leading up to the incident create a triable issue of material fact as to whether the subject wheel stop was a dangerous condition and whether pedestrians encountering the wheel stop while walking through the parking lot toward the dirt path was foreseeable. 

 

Based on the foregoing, Defendant’s motion for summary judgment is DENIED.   

 

Moving Defendant is ordered to give notice.