Judge: Richard Y. Lee, Case: 30-2019-01109204, Date: 2022-08-04 Tentative Ruling
Defendants Icon Owner Pool 1 LA Business Parks, LLC and Icon Newco Pool 1 Texas, LLC (the “Icon Defendants” or “Icon”) move for an order granting summary judgment as to all causes of action in Plaintiff Sheri Moody’s Complaint. Alternatively, the Icon Defendants move for summary adjudication of the following issues:
ISSUE NO. 1: ICON is entitled to summary adjudication in its favor on Plaintiff’s first cause of action for negligence and second causes of action for premises liability because Plaintiff cannot prove that ICON had notice of the alleged dangerous condition.
ISSUE NO. 2: ICON is entitled to summary adjudication in its favor on Plaintiff’s first cause of action for negligence and second causes of action for premises liability because the alleged dangerous condition was open and obvious.
ISSUE NO. 3: ICON is entitled to summary adjudication in its favor as a matter of law that Plaintiff’s non-delegable duty argument does not apply to the facts in this case.
The Icon Defendants contend that they are entitled to summary judgment as Plaintiff Sheri Moody (“Plaintiff”) cannot meet her burden of proof establishing that the Icon Defendants owed a duty to Plaintiff because Plaintiff tripped and fell over a gas riser that was located within a public utility easement on property owned by the Icon Defendants, but which the Icon Defendants did not have any control. Specifically, the Icon Defendants argue that the public utility right-of-way easement was granted in favor of Defendant Southern California Gas Company (“SoCalGas”) on 3/20/73 and/or 3/6/74; that SoCalGas installed both the gas risers and the bright yellow bollards, the latter of which was installed in or about 2013; that the terms of the easement provide that the Icon Defendants cannot construct or maintain any condition on its Property that would interfere with the easement; and that SoCalGas installed new T-bar railings on either side of the gas riser in 2019 such that the Icon Defendants do not and did not control or have the right to control the easement or the gas riser located on the easement where Plaintiff tripped and fell, and that Plaintiff has not, and cannot, produce any evidence that the Icon Defendants took any affirmative action that could be considered an assertion of control over the gas riser or the easement.
Icon additionally and alternatively argues that the undisputed material facts establish that the Icon Defendants are entitled to summary adjudication on Plaintiff’s first and second causes of action for premises liability because (1) Plaintiff cannot prove that Icon had notice of the alleged dangerous conditions; (2) the alleged dangerous condition was open and obvious; and (3) Plaintiff’s non-delegable duty argument does not apply to the facts of this case.
In response, two oppositions have been filed, one by Plaintiff, and one by SoCalGas.
Plaintiff argues that Icon has not met their burden of production or persuasion as they have provided no competent evidence regarding the location of the easement and fail to show that the riser falls within the metes and bounds of the easement. Plaintiff also contends that Icon provides no evidence showing that they are not responsible for the walkway area immediately surrounding the riser. Plaintiff additionally argues that she meets her burden to create a triable issue of material fact as the riser did not fall within the easement location and was placed as a “Service Lateral” on the Icon premises, as identified by SoCalGas documents and witness testimony, including SoCalGas’s own Person Most Qualified (“PMQ”) on the topics of Land and Right of Way, Seth Rosenberg, and that the Public Utilities Commission Rule Number 21 outlines that Icon “shall exercise reasonable care to prevent Utility’s Service Lateral, meters, and other facilities owned by Utility on Applicant’s Premises from being damaged or destroyed” and that Icon “may be required to provide and install suitable protection (barriers, posts, etc)” in the act of reasonable care in protecting the riser. Plaintiff thus argues that the riser and its surrounding areas fell within the joint control of Icon and SoCalGas at the time of the incident. Plaintiff further argues that even if the easement encompassed the riser, Icon still owns and/or controls the subject area around the riser.
As to the first issue for summary adjudication, Plaintiff argues that the absence of prior incidents, concerns or complaints is not dispositive of the issue of a dangerous condition and that Plaintiff has provided competent evidence showing that triable issues of material fact exist as to actual or constructive notice of the dangerous condition based upon the mere existence of said condition, and the declaration of Plaintiff’s safety engineer and human factors expert, Brad P. Avrit, PE, CXLT. As to the second issue for summary adjudication, Plaintiff contends that Icon’s “open and obvious” argument fails as the undisputed facts show that Plaintiff simply opened the door that she had used at maximum three times prior, and immediately encountered the condition when stepping outside in foreseeable usable of the walkway and egress area, which happened in seconds; that the “open and obvious” argument does not absolve a defendant of its duty to protect from the foreseeable dangers of a condition, but speaks to contributory negligence; and that Icon provides no evidence showing that Plaintiff’s method of egress was unreasonable and unforeseeable. As to the third issue for summary adjudication, Plaintiff asserts that as a property owner, Icon has a non-delegable duty to make the walkway area safe for foreseeable usage.
SoCalGas contends that the assertion that that Icon cannot be liable because the incident occurred on a public utility easement owned and controlled SoCalGas is not true and is not supported by admissible evidence. SoCalGas admits that that the gas riser pipe Plaintiff alleges to have tripped over was and is owned, maintained and controlled by SoCalGas, and that the two bright yellow bollards protecting and providing notice of the gas riser are owned, maintained, and controlled by SoCalGas. However, SoCalGas argues that the two Right of Way documents attached by Icon are easements by meets and bounds, and that Icon would need a surveyor’s declaration to provide evidence of the areas of Icon’s property within each noted right of way, and that the gas riser and yellow bollards are items of infrastructure that are not located within an easement, and are located in an area owned by Icon without recorded encumbrance. SoCalGas also argues that the fact that it installed additional T-bar rails around the riser after Plaintiff’s fall is true, but is inadmissible under Evidence Code section 1151, as subsequently installed T-bars is admissible to show negligence or culpability. SoCalGas additionally provides that it joins Icon as to the first two issues for summary adjudication that the gas riser constituted a dangerous condition, and that the alleged condition was open and obvious, but that it opposes the motion as to the third issue for summary adjudication.
SoCalGas’s Partial Joinder
A party cannot join in another’s motion for summary judgment simply by filing a notice of joinder. (See Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal. App. 4th 26, 46-47 [finding notice of joinder in motion did not constitute actual motion for summary judgment and did not meet requirements of CCP § 437c].) The party must present a motion, with a separate statement of material facts, and supporting evidence under Code Civ. Proc. §437c(b). (Id. at p. 46; Frazee v. Seely (2002) 95 Cal. App.4th 627, 636-637.) The papers must be timely filed as well under the summary judgment statute. (Frazee, supra, 95 Cal.App.4th at 637.) 75-days’ notice is required on a motion for summary judgment. (Code Civ. Proc. § 437c(a)(2).) Code Civil Procedure section 437c(a)(2) states, “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. . . .”
Here, SoCalGas purports to partially join in Icon’s motion as to the first two issues for summary adjudication. To the extent that SoCalGas is seeking to join part of Icon’s motion, proper notice was not given, and SoCalGas did not file its own independent separate statement of material facts or evidence, instead relying on Icon’s separate statement and evidence. Moreover, Icon relies on the same material facts its motion for summary judgment and each of the three issues for summary adjudication, and SoCalGas disputes several facts which asserted to support summary adjudication as to the first two issues, and thereby undermines its own purported joinder. Further, as the purported joinder was first made in opposition to Icon’s motion, and SoCalGas’s opposition was filed and served on 7/21/22, any purported joinder was not timely filed for the hearing set for 8/4/22. Based on the foregoing, the Court DENIES SoCalGas’s joinder as to the first two issues of summary adjudication.
Plaintiff’s Evidentiary Objections to Icon’s Evidence
“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).)
California Rules of Court (“CRC”), rule 3.1352 requires that a party making objections to evidence for a summary judgment motion either submit objections in writing under rule 3.1354 or make arrangements for a court reporter to be present at the hearing. Plaintiff asserts objections under CRC, rule 3.1354.
Each written objection must be numbered consecutively and must (1) identify the name of the document in which the specific material objected to is located; (2) state the exhibit, title, page, and line number of the material objected to; (3) quote or set forth the objectionable statement or material; and (4) state the grounds for each objection to that statement or material. (CRC, Rule 3.1354(b)(1)-(4).) If the opposing party objects to the evidence upon which the moving party’s separate statement rests, the opposing party’s statement should state the objection by referring to the objection number of separately filed evidentiary objections. (CRC 3.1354(b).)
Initially, the Court notes that Plaintiff does not number the objections consecutively. In addition, Plaintiff improperly objects to facts, as opposed to the specific evidence, and the opposing separate statement does not state the objection by referring to the objection number. Despite these deficiencies, the Court treats the objections as objecting to the evidence upon which the purported material fact is based.
Plaintiff objects to Icon’s Separate Statement of Undisputed Material Fact (“SSUMF”) Nos. 4, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, as well as the entirety of the Declaration of Norma Lara attached as Exhibit B, and paragraphs 3, 4, 8, 12 thereto, as well as paragraph 2 of the Declaration of Rae Richardson.
The Court OVERRULES Plaintiff’s objections to SSUMF Nos. 4, 7, 8, 11, 12, 13, 14, 18, 19, 20, to the entirety of the Declaration of Norma Lara; to paragraphs 8 and 12 of the Declaration of Norma Lara; and to paragraph 2 of the Declaration of Rae Richardson.
The Court SUSTAINS Plaintiff’s objections to SSUMF Nos. 9, 10; and to paragraphs 3 and 4 of the Declaration of Norma Lara.
SoCalGas’s Objections to Icon’s Evidence
SoCalGas asserts written objections to the Declaration of Norma Lara (Objection Nos. 1-4) which is attached as Exhibit B to the motion, and to the deposition of Gordon Kuo (Objection No. 1) which is attached as Exhibit E to the motion.
Declaration of Norma Lara
The Court SUSTAINS Objection Nos. 1 through 4.
Deposition of Gordon Kuo
The Court SUSTAINS Objection No. 1 to page 53, line 25 through page 54, line 10 of the deposition of Gordon Kuo.
Motion for Summary Judgment - Merits
A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if he or she shows one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2).) Once the defendant has met that 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 a defense. (Ibid.) A plaintiff must set forth specific facts showing that a triable issue of material fact exists as to a cause of action or a defense thereto. (Ibid.)
“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc. § 437c(f)(2).)
A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff. (Code Civ. Proc. § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)
A cause of action has no merit if either (1) one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; or (2) a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc. § 437c(o).)
There is a three-step process in reviewing a summary judgment motion. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638.) The court first “ ‘identif[ies] the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.][¶].’ ” (Ibid.) Second, the court “ ‘determine[s] whether the moving party’s showing has established facts which negate the opponent’s claim and justif[ies] a judgment in movant’s favor. [Citations.] . . . [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]’ [Citation.]” (Ibid.)
The 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. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.)
“A ‘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.’ [Citation.] Once the moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525–526.)
In determining a motion for summary judgment, the court is “required to view the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment motion; doubts as to whether there are any triable issues must be resolved in favor of the opposing party; and equally conflicting evidence or inferences require denial of a summary judgment motion.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522.)
“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, . . . .” (Code Civ. Proc. § 437c(c).)
Here, the Complaint asserts two causes of action for General Negligence and Premises Liability against Defendants, Icon, and SoCalGas based upon the following allegations which support both causes of action.
As to SoCalGas, the Complaint alleges that it possessed an easement to enter and service property located at 7241 Garden Grove Blvd., Unit A, Garden Grove, California (the “Property”). (Form Complaint, at p. 4.) The Complaint alleges that SoCalGas “created, maintained, and allowed a hazardous and dangerous condition to exist, to wit, a utility fixture and/or pipe which had been installed directly in the path of a person’s exiting the adjacent storage unit. Said fixture/pipe is a few inches high, significantly below the eye level of persons encountering it.” (Ibid.) The Complaint also alleges that SoCalGas “failed to remove the hazard and allowed it to languish creating a dangerous condition,” that SoCalGas “created and maintained a dangerous and hazardous condition of property,” that “[i]t was foreseeable by [SoCalGas] that the continuous placement, control and maintenance of a below eye level and abandoned utility fixture/pip created an unreasonable risk of harm to person’s exiting door A,” and that “[SoCalGas] breached their duty of care to Plaintiff by creating a allowing a dangerous condition of property, failure to warn of it’s [sic] presence, failure to inspect the fixture/pip, absence and failure to monitor said pipe/fixture, and failure to remove the hazard.” (Continuation of Page 4 Form Complaint.)
As to the Icon Defendants, the Complaint alleges that the Property was owned, managed, occupied, maintained, and controlled by them. (Form Complaint, at p. 4.) The Complaint alleges that Icon “has a non-delegable duty of care to use reasonable care to discover any unsafe conditions on their property and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.” (Continuation of Page 4 Form Complaint.) The Complaint also alleges that Icon had a manager working either onsite or across the street, that they “knew of the hazard or at the very least should have known of it,” and that upon information and belief “periodic inspections of the property would have provided actual and/or constructive notice of the hazard.” (Ibid.) The Complaint further alleges that “[d]espite said notice, Icons did nothing to prevent and/or alleviate the risk of harm and injury,” and that their negligence consisted of the “failure to post any warnings to persons exiting door A that an impending hazard was directly in their path, failure to notify [SoCalGas] of the hazard, failure to install any protective barriers around the hazard, failure to remove the hazard.” (Continuation of Page 4 Form Complaint.)
The Complaint alleges that SoCalGas and the Icon Defendants “failed to post any warnings to person’s exiting door A that an impending hazard was in their path” and alleges that on January 14, 2018, Plaintiff exited door A of the office portion of the storage facility and immediately upon exiting, her right foot caught on a metal object placed on the top of the pipe and fell, causing her to suffer injuries and damages. (Form Complaint, at p. 4 and Continuation of Page 4 Form Complaint.)
The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Sup.Ct. (Pneumo Abex, LLC) (2016) 1 Cal.5th 1132, 1142, 1158.) Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act. [Citations.]” “But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. [Citations.]” (Id. at pp. 1158-1159.)
Duty
The existence of a duty to protect a plaintiff is an essential element of a cause of action for premises liability, and the lack of such duty is a complete defense. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362; Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 85.) Whether a duty exists is a question of law to be determined on a case-by-case basis. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124.) “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.” (Id. at p. 134.)
Icon contends that it does not owe a duty to Plaintiff because it did not own or control the gas riser or easement over which Plaintiff tripped and fell, and that the gas riser was located within a public utility easement, both of which was owned, maintained, and controlled by SoCalGas.
Plaintiff and SoCalGas contend that Icon presents no admissible evidence to support these assertions of material fact.
Icon asserts the following material fact: “The gas riser Plaintiff tripped and fell over was located within a public utility right-of-way easement (the “easement”) that was granted in favor of SoCalGas on March 20, 1973 and/or March 6, 1974.” (Icon’s Separate Statement of Undisputed Material Facts (“SSUMF”), 9.) In support of this fact, Icon cites to paragraph 2 of the Declaration of Rae Richardson attached as Exhibit D, and page 53, line 25 to page 54, line 10 of the deposition of Gordon Kuo attached as Exhibit E. Paragraph 2 of the Declaration of Rae Richardson merely provides that attached are “copies of the recorded Right of Way Easements in favor of Southern California Gas Company dated March 20, 1973 and March 6, 1974.” (Ex. D, Declaration of Rae Richardson, ¶ 2.) Though not cited as evidence in support in the SSUMF, the two Right of Way Easements themselves do not establish that the gas riser pipe was located within the parcels described in the two public utility right-of-way easements attached to the Declaration of Rae Richardson. In addition, as noted above, the objection to the deposition of Gordon Kuo has merit and does not help to establish that the gas riser pipe or yellow bollards were located within the public utility easements.
Icon additionally asserts the following material fact: “The gas riser Plaintiff tripped and fell over is located within SoCalGas’s easement. At the time of Plaintiff’s trip and fall, the easement included a gas fixture coming up from the ground and two yellow bollards in front of the gas riser.” (SSUMF, 10.) In support of this fact, Icon cites to paragraphs 3 and 5 of the Declaration of Norma Lara attached as Exhibit B. However, the objections to the Declaration of Norma Lara have merit as they lack foundation as to Norma Lara’s knowledge of where public utility easements owned by SoCalGas are located on the Property, that the area where Plaintiff tripped and fell is within SoCalGas’s easement, and what the easement includes.
Consequently, Icon fails to meet its initial burden to establish that they did not owe Plaintiff a duty on the ground that Icon did not control or have the right to control the gas riser or public utility easement as they fail to present admissible evidence that the gas riser pipe are located within SoCalGas’s public utility easement, or even what the location and bounds of the public utility easement are within the Property.
Plaintiff also presents evidence which creates a triable issue of material fact concerning whether the gas pipe riser fell within the easement. (Ex. 2, Deposition of Seth Rosenberg PMQ for SoCalGas, 112:21-24, 123:16-23, 124:11-23; 126:2-5; 127:6-24; Ex. 4 Easement Documents.)
Thus, the Court DENIES Icon’s motion for summary judgment.
Issue No. 1
ICON argues that it is entitled to summary adjudication in its favor on Plaintiff’s first cause of action for negligence and second causes of action for premises liability because Plaintiff cannot prove that ICON had notice of the alleged dangerous condition.
“Because the [business] owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises.” ’ [Citation.]” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’ [Citation.] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations.” (Id. at pp. 1206-1207.) “Most Courts of Appeal hold that a defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Id. at p. 1207.)
Although the absence of other similar accidents is relevant to determine whether a condition is dangerous, it is not dispositive. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1345-1346.)
It is undisputed that Icon purchased the Property in February 2015. (SSUMF, 5; Plaintiff’s Response Separate Statement (“PSS”), 5.) Icon submits the declaration of Icon’s Property Manager since April 2017, Norma Lara, which provides that the gas riser and bright yellow bollards in front of the gas riser were already installed when she started working at the Property in 2017; that as the Property Manager, she was responsible for monitoring and reporting any complaints by tenants regarding the Property and any accidents that happened on the Property, and that between the date she started working at the Property and through the date of Plaintiff’s trip and fall in January 2018, Icon did not receive any complaints from patrons of the Property that would alert Icon that the gas riser presented a dangerous condition to users of the Property, and that she was not informed of and was not aware of any prior trip and fall incidents involving the gas riser over which Plaintiff tripped and fell. (SSUMF and PSS, 21, 22; Declaration of Norma Lara, ¶¶ 1, 5, 9-11.) Ms. Lara also provides that her role as Property Manager includes performing routine inspections of the Property on the daily basis, consisting of walking around the Property looking for any maintenance, repair, or other issues that need to be addressed, and that based on the location and appearance of the gas riser, the presence of two bright yellow bollards in front of the gas riser, and the lack of any prior incidents or complaints, she had “no reason to perceive the gas riser as a potential hazard to patrons of the Property.” (SSUMF and PSS, 20, 24; Declaration of Norma Lara, ¶¶ 12, 13.)
Strictly construed, the Declaration of Norma Lara does not establish a complete absence of any complaints or accidents involving the gas riser pipe since she became the Property Manager in April 2017. While Ms. Lara provides that she was responsible for monitoring and reporting any complaints by tenants and accidents at the Property, she does not provide what she reviewed in order to come to these conclusions, and only asserts that she was not aware or informed of any complaints or any accidents involving the gas riser over which Plaintiff tripped or fell for a period of nine months (April 2018 to January 2019). Nor does she provide any account of complaints or incidents from the same gas riser over which Plaintiff fell from the time Icon purchased the Property in February 2015. Thus, Icon does not account for the entire time between when Icon purchased the Property in February 2015, and Plaintiff’s fall in January 2018.
Moreover, Ms. Lara’s description of “routine inspections of the Property on a daily basis” broadly and vaguely refers to looking for any maintenance, repair, or other issues, and is insufficient to establish that Icon did not have constructive notice of the alleged dangerous condition.
Based on the foregoing, Icon fails to present sufficient evidence to establish that it did not have notice of the alleged dangerous condition arising from the gas riser pipe. Thus, the Court DENIES the motion for summary adjudication as to the first issue.
Plaintiff also presents evidence which creates a triable issue of fact as to whether Icon could have had constructive notice of the alleged defect. Plaintiff submits the Declaration of Brad P. Avrit, PE, CXLT, who is a safety and liability expert. (Declaration of Brad P. Avrit, ¶ 4.) Mr. Avrit also personally inspected the Property on November 3, 2021, and took photographs and measurements of relevant areas. (Declaration of Brad P. Avrit, ¶ 7.)
Mr. Avrit opines that the gas riser presented a dangerous condition, that the its “7-1/2-inch height, 5-/12 [sic] length, and location adjacent to Door A violated the CBC, CFR, ASTM, and SoCalGas Standards on January 14, 2018,” and that “[i]t was foreseeable that a person exiting Door A when a vehicle was parked in front of the two bollards would traverse the subject incident area,” as the two yellow bollards did not limit pedestrian access from Door A on the incident date, and the 28-5/8-inch distance between the bollards and the wall provided enough space for a pedestrian to walk through and encounter the subject riser. (Declaration of Brad P. Avrit, ¶¶ 8-9.) Mr. Avrit also provides that “[f]rom a human factors standpoint, the subject gas riser was likely difficult for pedestrians to perceive on the incident date,” and that “[t]he subject gas riser was a low-lying trip hazard that would not have been in a pedestrian’s field of vision when exiting Door A on the incident date,” that it is “foreseeable that a pedestrian traversing the subject incident area would not look at the ground because she is focused on avoiding oncoming vehicles,” and that “Defendants’ failure to prevent pedestrians from accessing the subject incident area notwithstanding the gas riser’s substantial height and length, location within a foreseeable pathway, and lack of sufficient barriers therefore created a dangerous condition on the date of Plaintiff’s fall. (Id., ¶ 10.)
Plaintiff additionally presents evidence that Mr. Lara only visually inspected the riser at the Property during a walking inspection five times during the period of 2017 to 2019, and that most of her inspections were done through the window of a moving vehicle. (Ex. 3 to the Declaration of Ernest J. Lingenfelter, ¶ 4; Deposition of Norma Lara, 102:11-103:9.)
The foregoing evidence presents triable issues of material fact as to whether Icon conducted reasonable inspections of the Property, and whether the gas riser’s height and length, and location within a foreseeable pathway are such that a reasonably prudent person would have discovered the alleged hazard caused by the gas riser pipe.
Issue No. 2
ICON argues that it is entitled to summary adjudication in its favor on Plaintiff’s first cause of action for negligence and second causes of action for premises liability because the alleged dangerous condition was open and obvious.
“ ‘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.” [Citation.]’ [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446.) “ ‘Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.’ [Citations.]” (Id. at pp. 446-447.) “Foreseeability of harm is typically absent when a dangerous condition is open and obvious. [Citation.] ‘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.’ [Citation.]” (Id. at p. 447.) “An exception to this general rule exists when ‘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).’ [Citation.] In other words, while the obviousness of the condition and its dangerousness may obviate the landowner’s duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.” (Ibid.)
When examining photographs to determine whether an alleged defect was open and obvious, the trial court “should take into account such factors as (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); (3) 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.) “Summary judgment cannot be based on photographs where the reviewing court concludes either reasonable minds might differ as to whether the photographs correctly depict the alleged defect and the surrounding circumstances or when the photographs lack any probative value on the issue of whether the defect was open and obvious.” (Id. at p. 26.)
Here, Icon, without citing to any facts or evidence, asserts that the gas riser surrounded by the bright yellow bollards was open and obvious. There are no facts, let alone facts citing to evidence, which establish the size or precise location of the gas riser relative to door through which Plaintiff exited, or the size or location of the yellow bollards relative to the gas riser or the door through which Plaintiff exited. Though not referenced, Icon submits photographs that depict the gas riser. However, the photographs attached to the Complaint and the photographs attached as Exhibits 1 and 2 to the Declaration of Norma Lara do not provide any measurements or show that the gas riser was “surrounded” by bright yellow bollards. The photographs attached to the Complaint are in black and white, are somewhat blurry, and are limited in terms of the perspective. The photograph attached as Exhibit 1 to the Declaration of Norma Lara is one taken from a distant perspective, and the photographs attached as Exhibit 2 to the Declaration of Norma Lara include T-bars such that they do not depict the gas riser and the area immediately surrounding it as it was on the day of the accident.
It appears that Icon argues that the exception to the general rule of nonliability where a danger is so obvious that a person could reasonably be expected to see it does not apply because the path Plaintiff took was not one of “necessity.” However, Icon fails to establish the underlying premise, i.e., that the gas riser was open and obvious.
Consequently, Icon fails to meet its initial burden to show that the alleged dangerous condition resulting from the gas riser pipe is open and obvious. The Court DENIES the motion for summary adjudication as to the second issue.
Issue No. 3
ICON contends it is entitled to summary adjudication in its favor as a matter of law that Plaintiff’s non-delegable duty argument does not apply to the facts in this case.
The same material facts at issue for the motion for summary judgment are at issue here. Icon fails to meet its initial burden to establish material facts that they did not have control or the right to control the easement, as set forth above as to the duty issue for the motion for summary judgment.
In addition, Icon makes passing reference to Privette v. Superior Court (1993) 5 Cal.4th 689, for the assertion that the non-delegable duty rule “is a rule of vicarious liability that typically applies in situations where a property owner has hired an independent contractor” and that “there is no issue of ICON delegating a duty to an independent contractor, . . . .” (Motion, 20:21-23.) There are no facts cited or evidence presented to support the contention that there is no independent contractor.
Moreover, even if the non-delegable duty argument is inapplicable, the Court cannot summarily adjudicate this issue as it does not fully resolve the issue of duty or any cause of action at issue. (Code Civ. Proc. § 437c(f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”].)
The general principle remains that “the duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable.” (Strithong v. Total Investment Company (1994) 23 Cal.App.4th 721,726.)
Based on the foregoing, the Court DENIES the motion for summary adjudication as to the third issue.
Plaintiff to give notice.