Judge: Steven A. Ellis, Case: 21STCV26812, Date: 2023-08-16 Tentative Ruling
Case Number: 21STCV26812 Hearing Date: August 30, 2023 Dept: 29
TENTATIVE
Defendants’
Motion is DENIED.
Background
According to the Complaint, Plaintiff
Lesley Mesica (“Plaintiff”) was injured on January 5, 2020, when she tripped
and fell while walking outside her apartment on property owned, operated,
and/or maintained by defendants. (Complaint, ¶ 8.) Specifically, Plaintiff
alleges that there was “poor, inadequate and insufficient lighting and improper
and insufficient maintenance” and that “foliage droppings” caused a “dangerous
condition” that led to her fall and injuries. (Ibid.) Defendants are alleged
to have “negligently allowed dim and ineffective lighting in the courtyard” and
to have “improperly maintained tress and other vegetation resulting in the
trees shedding and dropping palm nuts and other debris.” (Id., ¶ 13.)
Plaintiff filed her Complaint on July 21,
2021, alleging causes of action for premises liability and negligence against
Defendants CLG Family Fund LLC, CLG Management LLC, and Does 1 through 100. Defendants
CLG Family Fund LLC and CLG Management LLC (“Defendants”) filed their answer on
September 20, 2021.
On May 31, 2023, Defendants filed the
instant Motion for Summary Judgment, or, in the alternative, Summary
Adjudication. Plaintiff filed her Opposition on August 1, along with objections
to some of Defendants’ evidence. On August 9, Defendants filed a Reply and
objections to some of Plaintiff’s evidence.
The hearing was initially set for August
16, 2023. The Court, on its own motion, continued the hearing to August 30.
Legal Standard
“The purpose of the law of summary judgment
is to provide courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure section 437c, subdivision (c), “requires the trial judge to grant
summary judgment if all the evidence submitted, and ‘all inferences reasonably
deducible from the evidence’ and uncontradicted by other inferences or
evidence, 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.” (Adler v.
Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of
the pleadings in a motion for summary judgment is to delimit the scope of the
issues; the function of the affidavits or declarations is to disclose whether
there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)
As to each cause of action as
framed by the complaint, a defendant moving for summary judgment or summary
adjudication must satisfy the initial burden of proof by presenting facts to
show “that one or more elements of the cause of action ... cannot be
established, or that there is a complete defense to the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at
850-51; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,
1520.) Courts “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.)
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 the cause of action or a defense thereto.” (Code
Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at
850-51.) To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.)
Evidentiary
Objections
Each side submits objections to the other
side’s evidence. Evidence presented in support of, or in opposition to, a
motion for summary judgment must be admissible. (Code Civ. Proc., § 437c,
subd. (d); Perry v.
Bakewell Hawthorne LLC
(2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained.” (Code
Civ. Proc., § 437c, subd. (c).)
The Court OVERRULES
Plaintiff’s objections to Defendants’ evidence.
The Court OVERRULES
Defendants’ objections to Plaintiff’s evidence.
Discussion
The elements of a cause of action for premises liability are the
same as those for negligence: duty, breach, causation, and damages. (Castellon
v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess,
or control property generally have a duty to exercise ordinary care in managing
the property to avoid exposing others to an unreasonable risk of harm. (Annocki v.
Peterson Enterprises, LLC (2014) 232
Cal.App.4th 32, 37.)
Defendants make three arguments in support of their motion for
summary judgment or summary adjudication: (1) that they did not have notice of
the dangerous condition; (2) that Plaintiff’s testimony of causation (that
she slipped on palm tree nut) is speculative; and (3) that the palm tree nuts
on the walkway, if a dangerous condition, were an open and obvious condition.
The Court considers each argument in turn.
Notice of the Allegedly Dangerous Condition
In this case, Plaintiff must show that Defendants knew or should
have known of the dangerous condition. (Peralta v. Vons Companies, Inc. (2018)
24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26
Cal.4th 1200, 1206.) “[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 1207.) “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.” (Ibid.) “The owner must inspect the premises or take other proper
action to ascertain their condition, and if, by the exercise of reasonable
care, the owner would have discovered the condition, he is liable for failing
to correct it.” (Ibid.)
Here, Plaintiff slipped and fell in the courtyard area of her apartment
complex at approximately 6:00 p.m. on January 5, 2020. (SUMF No. 1.) Plaintiff testified
that she slipped on a palm tree nut dropped by the trees in the courtyard. (SUMF
Nos. 3, 16.) Plaintiff lived in the complex for nine years and was aware that
there could be palm tree nuts on the ground and that they were slippery. (SUMF
No. 5.) Earlier in the day, Plaintiff had observed the palm tree nuts on the
ground in the courtyard. (SUMF Nos. 9, 14)
Defendants hired a gardener to provide services at the apartment
complex, including blowing debris off of the walkways, once per week. (SUMF No.
18.) The courtyard was swept twice a week during the work week between Monday
and Friday. (SUMF No. 21.) The property had been cleaned by a regular cleaning
service four days before Plaintiff’s fall. (SUMF No. 24.) The community manager,
Steve Flores, walks the apartment daily. (SUMF No. 19.)
In their Separate Statement of Undisputed Facts, Defendants assert
that they had no notice of the allegedly dangerous condition. (See SUMF Nos. 27-28.)
After a careful review of the evidence, the Court concludes that there is a dispute
as to this material fact.
First, Plaintiff testified that she regularly observed palm tree
nuts on the ground in the courtyard. (SUMF Nos. 5, 9, 14, 15, 16.) Given that
Defendants owned and/or operated the property, and their manager walked through
the area at least daily (SUMF No. 19), a reasonable inference can be drawn that
Defendants were aware of the palm tree nuts on the ground in the courtyard of
their apartment complex, and had been for a significant period of time (months or
years).
Second, prior to Plaintiff’s accident, Tanya De Leon, a district manager
for Defendant CLG Management, had received at least one complaint, if not more
than one, about the risk of injury from palm tree nuts on the ground in the courtyard.
(De Leon Depo., at 13:22-14:11, 78:21-81:12, 84:7-24, 85:5-13, 87:1-24.) As Ms.
De Leon testified at her deposition:
Q. You know
that there are other e-mails from other tenants expressing a safety concern
about these palm seeds or palm nuts; true or not true?
A. I
suppose so.
Q. And
exactly what they were telling you years earlier happened to my client, true?
A. I
suppose so.
(Id. at 88:1-8.)
On these facts, a jury could reasonably conclude that Defendants had
notice of the dangerous condition sufficiently in advance of the accident to
remedy it.
Causation
Defendants argue that Plaintiff is merely speculating that she
slipped on one of the palm tree nuts in the courtyard. In her deposition,
Plaintiff testified that when she was on her way to her apartment, “that’s when
I slipped on the palm nut.” (Mesica Depo., at 12:16-17.) Later in the
deposition, she testified:
Q. [W]hat
was it that made you fall? What was it?
A. It was a
palm nut.
Q. Okay.
Did you see the palm nut at any time prior to your falling?
A. Yes.
(Id. at 21:1-6.) There is, to be sure, other testimony in the
record in which Plaintiff’s statements are more equivocal, but the Court
concludes that, after examining all of the evidence in the record, Plaintiff
has presented admissible, non-speculative evidence that she slipped on a palm
nut. This includes Plaintiff’s direct testimony, the reasonable inferences that
may be drawn from the evidence, and circumstantial evidence.
Open and Obvious Condition
Finally,
Defendants argue that the allegedly dangerous condition (the palm tree nuts on
the walkways) was open and obvious – so open and obvious, in fact, that
Plaintiff admitted that she had observed it – and that therefore Defendants had
no further duty to warn of the dangerous condition or to remedy it.
It
is of course true that in some cases, a dangerous condition may be so obvious
that the condition itself serves as a warning, and the landowner may have no
further duty to remedy or warn of the condition. (See Montes v. YMCA of Glendale (2022) 81 Cal.App.5th 1134,
1142; Christoff
v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126; Krongos v.
Pacific Gas Electric Co. (1992) 7
Cal.App.4th 387, 393.) “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.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659,
673.)
This no-duty principle (which is itself an exception to the general
rule that a landowner has a duty to exercise ordinary care in managing its property),
is, however, subject to various exceptions and limitations. As the California
Supreme Court has noted, “it is foreseeable that even an obvious danger may
cause injury, if the practical necessity of encountering the danger, when
weighed against the apparent risk involved, is such that under the circumstances,
a person might choose to encounter the danger.” (Ibid.) “[W]hile 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.” (Razoumovitch
v. 726 Hudson Ave, LLC (2023) 91 Cal.App.5th 547, 559 [quoting Kaney v.
Custance (2022) 74 Cal.App.5th 201, 215].)
Here, there are disputed facts in the record regarding whether
there was adequate lighting in the courtyard after dark. (See Avrit Decl., ¶¶ 6-14;
SUMF Nos. 10, 23.) Moreover, and independently, there is at least a reasonable
inference that can be drawn from the record that, as a matter of practical
necessity, Plaintiff had no reasonable alternative to encountering the danger (which
was present in the walkway in front of her apartment), and that it was at least
reasonably foreseeable that Plaintiff and others walking in the courtyard would
in fact do so.
Conclusion
Based on the
foregoing, the Court concludes that Defendants have not shown that one or more
elements of Plaintiff’s causes of action cannot be established or that there is
a complete defense to the claims.
Accordingly, the
Court DENIES Defendants’ Motion for Summary Judgment, or in the Alternative for
Summary Adjudication.
Moving party is ordered to give notice.