Judge Richard S. Whitney, Case Number: 37-2022-00040640-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00040640-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00040640-CU-PO-CTL CREERY VS ANTARES COMMUNITY ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS ANTARES COMMUNITY ASSOCIATION AND CURTIS MANAGEMENT COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION is GRANTED.

Defendants ANTARES COMMUNITY ASSOCIATION and CURTIS MANAGEMENT COMPANY ('Defendants') challenge Plaintiff PATRICIA CREERY's ('Plaintiff') causes of action for premise liability and negligence. In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact.

(Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Defendants first argue Plaintiff does not have standing due to the fact she was not an owner of a unit that was part of the Antares Community. (Defendants' Separate Statement of Undisputed Material Facts ['SSUMF'] No. 1.) Defendants cite Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, for support. However, Martin is inapposite as it involved allegations that exclusively pled a duty arising 'out of the Davis–Stirling Act and the CC & Rs, not out of common law principles of negligence.' (Id. at 1037.) Here, Plaintiff does not allege a duty exclusively arising from out of the Davis–Stirling Act and/or the CC&Rs. (See Complaint generally.) Martin did not involve a claim of duty arising from common law negligence principles. Plaintiff's complaint may be interpreted as arising from common law negligence principles.

'[T]raditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents' safety in those areas under their control.' (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) 'The law is well settled that an owner or occupier of land is required to exercise ordinary care in the management of his property and the breach of such duty constitutes actionable negligence.' (Davert v. Larson (1985) 163 Cal.App.3d 407, 410.) 'A landowner or possessor owes a duty of care to persons who come on his property as well as to persons off the property for injuries due to the landowner's lack of due care in the management of his property.' (Id.) Defendants do not demonstrate the area where the incident occurred was not under their control. (See SSUMF generally.) In short, Defendants' first argument fails.

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3090132 72 CASE NUMBER: CASE TITLE: CREERY VS ANTARES COMMUNITY ASSOCIATION [IMAGED] 37-2022-00040640-CU-PO-CTL Next, Defendants assert they did not have a duty because the condition was open and obvious.

'[L]andowners have no duty to warn of open and obvious dangers on their property because such dangers serve as warnings themselves.' (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207–1208.) '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.' (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 [Citations and quotes omitted].) But the 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. The modern and controlling law on this subject is that 'although the obviousness of a danger may obviate the duty to warn of its existence, 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, 273 Cal.Rptr. 457; see id. at p. 121, 273 Cal.Rptr. 457; Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 33, 77 Cal.Rptr. 914.) (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.) 'The existence of a dangerous condition is ordinarily a question of fact but 'can be decided as a matter of law if reasonable minds can come to only one conclusion.'' (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347 [Citation omitted].) In Martinez there was an open and obvious condition – wet pavement – but 'the pavement appears to have provided a principal if not sole access way from the street to defendant's building, which housed a government office serving the public.' (Martinez, supra, 121 Cal.App.4th at 1185.) Under such circumstances, the 'defendant may have been charged with a duty of relieving the dangerous condition' based on an analysis of the Rowland factors. (Id.) In Jacobs, the 'potential buyers did not have to approach the dangerous condition (i.e., the empty pool) in order to inspect the backyard,' such that the landlord was not liable. (Jacobs, supra, 14 Cal.App.5th at 448.) Here, Plaintiff does not dispute that the paver walkway was not an exclusive path for egress from or ingress to the subject property. (SSUMF No. 14.) Plaintiff merely notes that it provided a convenient and inviting direct pathway. (Plaintiff's response to SSUMF No. 14.) Plaintiff does not demonstrate that the fact it was a convenient and inviting direct pathway is sufficient, in and of itself, to establish Defendants have a duty. However, the Court agrees it is a relevant fact that may affect this Court's determination as to whether Defendant owed a duty to remedy the condition.

'Duty is a question of law to be determined on a case-by-case basis.' (Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426.) ''Duty' is merely a conclusory expression used when the sum total of policy considerations lead a court to say that the particular plaintiff is entitled to protection.' (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 392–393.) The Court must balance the following considerations: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

(Rowland v. Christian (1968) 69 Cal.2d 108, 113.) 'The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care ... is whether the injury in question was foreseeable.' (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629 [Citation omitted].) [T]he Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that the court's task in determining duty 'is not to decide whether a Calendar No.: Event ID: TENTATIVE RULINGS

3090132 72 CASE NUMBER: CASE TITLE: CREERY VS ANTARES COMMUNITY ASSOCIATION [IMAGED] 37-2022-00040640-CU-PO-CTL 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....' (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 [Citation omitted].) Here, the evidence is that there were at least two paths to leave the residence – the path where the pavers were located or the garage. (SSUMF No. 14.) Plaintiff does not provide evidence to indicate that the path with the pavers was the 'principal if not sole access way' to the residence. (Martinez, supra, 121 Cal.App.4th at 1185.) Rather, the evidence indicates Plaintiff 'did not have to approach the dangerous condition.' (Jacobs, supra, 14 Cal.App.5th at 448.) The Court finds that under the circumstances Defendants did not have a duty to remedy the condition to the extent it was open and obvious. The Court cannot sanction the act of a person voluntarily taking a path with a dangerous condition where it is open and obvious to the person that the dangerous condition exists and that an alternative pathway may be taken so as to avoid the dangerous condition. This is especially true where the person is capable of immediately reporting the condition to the responsible parties such that the condition could be remedied. In the interim before the condition is remedied, the alternative path may be taken. While Plaintiff asserts in the opposition that she did not see the paver when she tripped, Plaintiff testified that she saw the pavers, the purported dangerous condition, prior to tripping. (See Plaintiff's Additional Material Facts ['AMF'] No. 19; Plaintiff's Deposition at 16:18-17:2.) Viewing the facts from a broad level of factual generality leads to the conclusion that it is not foreseeable a person would voluntarily take a dangerous path they can observe is dangerous, especially when there is an alternative route that is not dangerous. In short, the Court finds Defendants are not liable if the purported dangerous condition was open and obvious.

Defendants provide evidence that the spaced paver walkway leading to the stairs was open and obvious. (SSUMF Nos. 12-13.) Plaintiff offers photos that confirm the condition was open and obvious; however, the Court notes that Plaintiff failed to lay a foundation for the photos and the photos are hearsay which Plaintiff's expert impermissibly relied upon to come to his conclusions. (See Ruling on Objections; AMF No. 17.) Defendants met their burden such that Plaintiff is required to raise a triable issue of material fact.

Plaintiff attempts to raise issues of fact by asserting that there was little color variation between the adjacent soil and the pavers, as well as the assertion by Plaintiff's expert that the surrounding foliage likely caused shadows to cover the pavers at the time of day when the incident occurred. (AMF Nos.

17-18.) While the Court could have been inclined to find there is a triable issue of material fact were the photos not inadmissible as hearsay, Plaintiff must still confront the fact that she testified she saw the pavers prior to tripping. (AMF No. 19; Plaintiff's Deposition at 16:18-17:2.) Indeed, Plaintiff testified that before she tripped, she was standing on a paver (the third or fourth paver from the stairs). (Plaintiff's Deposition at 20:11-14, 21:9-19.) The Court cannot conclude, in the absence of evidence that Plaintiff was somehow transported to the paver she stood on without her knowledge, that Plaintiff did not see the obvious paver pathway. The Court concludes the purported dangerous condition was open and obvious.

The motion is granted.

Defendants' Objections to Evidence: Objections 1-4, 7-8, 9-10, 14: Overruled Objections 5-6, 11-13, 15: Sustained to the extent they rely upon the photos purportedly taken by Robert Jessen. (People v. Sanchez (2016) 63 Cal.4th 665, 684.) Calendar No.: Event ID: TENTATIVE RULINGS

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