Judge: William A. Crowfoot, Case: 20STCV07139, Date: 2023-01-11 Tentative Ruling

Case Number: 20STCV07139    Hearing Date: January 11, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.          INTRODUCTION

On February 21, 2020, Plaintiff Veronika Cohen filed this action against Defendants Avalonbay Communities, Inc. (“Avalonbay”) and Perea Landscaping Service (“Perea”) arising from an August 10, 2018 trip and fall over a water hose.  Defendant moves for summary judgment on grounds that no triable issue of material fact act exists as to any cause of action alleged against it by Plaintiff.  In the alternative, Defendant moves the Court to summarily adjudicate that Defendant did not cause Plaintiff’s harm, that Defendant AvalonBay had no actual or constructive notice, and that the alleged condition that caused Plaintiff’s harm was open and obvious.

II.        FACTUAL BACKGROUND

On August 10, 2018, Plaintiff alleges that she tripped and fell over an inadequately secured water hose on the premises of Defendant’s property located at 16350 Ventura Boulevard, Encino (“Subject Property”).  (See Complaint, p. 3, ¶¶ 8, 10.)  Plaintiff alleges a dangerous condition existed on the Subject Property.  (See Complaint, p. 2, ¶ 6.)  At the time of the incident, Co-Defendant Perea Landscaping was performing landscaping services as an independent contractor of AvalonBay on the Subject Property (including using a garden hose to water plants).  (Undisputed Material Fact “UMF” No. 7.)  Defendant’s employees and representatives played no role in the placing or operation of the subject water hose. (Id.)

III.       LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“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 . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  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.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).) 

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  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 the party has shown 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.       EVIDENTIARY OBJECTIONS AND REQUESTS FOR JUDICIAL NOTICE

The Court grants all of Defendant’s requests for judicial notice.  (Evid. Code, § 452, subd. (d).)  The Court

Plaintiff’s Evidentiary Objections to the Declaration of Jamario Lewis: 

Objections No. 2A-2E, 2G are OVERRULED. 

Objection No. 2F, 2H are SUSTAINED as to lack of foundation of personal knowledge.

Defendant’s Evidentiary Objections to the Declaration of Steven L. Cohen: 

Objection is SUSTAINED as to irrelevance.

Defendant’s Evidentiary Objections Plaintiff’s Exhibit A – “Front of ABC Building”:

Objection is SUSTAINED as to irrelevance.

Defendant’s Evidentiary Objections to the Plaintiff's Exhibit B – “Gardener at Front with Hose”:

Objection is SUSTAINED as to irrelevance.

Defendant’s Evidentiary Objections to the Plaintiff's Exhibit C – “Van at Front of Building”:

Objection is SUSTAINED as to irrelevance.

Defendant’s Evidentiary Objections to the Deposition of George Parial (Plaintiff’s Exhibit D):

Objection is OVERRULED.

Defendant’s Evidentiary Objections to the Deposition of Arturo A. Hernandez (Plaintiff’s Exhibit F):

Objection is OVERRULED.

Defendant’s Evidentiary Objections to the Notice of PMQ of ABC (Plaintiff’s Exhibit G):

Objection is OVERRULED.

V.        DISCUSSION

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.)  “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’  [Citation.]”  (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe.  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)  For example, a “store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.”  (Ibid.)  The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances.  (Ibid.) 

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.”  (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].)  The plaintiff has the burden because “shifting the burden to defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred.”  (Ibid.)

Where a plaintiff produces evidence from which a reasonable inference can be drawn that the dangerous condition was created by defendant or its employees, defendant is charged with notice of the dangerous condition.  (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 382.)  However, “[t]he 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.”  (Ortega, supra, 26 Cal.4th at p. 1206.)  “The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.”  (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.)  Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury.  (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) 

However, if there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law.  (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

The Court finds that Defendant satisfies its initial burden in showing that it cannot be liable for negligence by negating the causation element.  Here, Defendant shows that Plaintiff’s injuries are a result of a superseding cause through the actions of an independent third party.  Thus, the burden shifts to Plaintiff.  Here, Plaintiff argues that the third party gardener’s use and handling of the hose does not constitute a superseding causation which would absolve Defendant of liability and provides evidence that, during the twice a week watering procedure, the hose would be left on the sidewalk and would have to be repeatedly and intermittently moved.  (Separate Statement of Material Facts in Dispute “SSMFD” Nos. 14, 15, 18.)  The Court finds this to be sufficient to show there are disputed material facts as to whether the independent third party’s actions constitute a superseding cause because there is a question of whether the act was unforeseen or unforeseeable.  This is relevant to the analysis of causation because if the third party’s actions were unusual or extraordinary, then it would sufficiently show that the causation was due to the tortious movement of the hose, that Defendant was not on notice, and that Defendant could not have reasonably expected this kind of injury to occur.  Although Defendant argues that it is not vicariously liable for co-Defendant Perea’s actions given that it is an independent contractor, Plaintiff has set forth evidence which shows that Defendant had the right to control Perea’s work.  (SSMFD No. 19.)  The Court finds that there is sufficient evidence for determination by the fact finder as to whether Perea was an independent contractor or employee and whether Defendant is ultimately subject to vicarious liability.  Thus, there is a triable issue of material fact as to negligence since it is disputed whether or not there was superseding causation.

The Court finds that Defendant fails to make an initial showing that it did not have actual or constructive notice of the alleged dangerous condition by stating that the actual cause of Plaintiff’s injuries was due to the tortious act (movement of the hose) as opposed to the condition of the property.  Defendant does not provide any evidence of its lack of notice, and merely states that Plaintiff has the burden of showing that Defendant had notice of the defect in sufficient time to correct it.  Plaintiff correctly points out these deficiencies in Defendant’s motion.  Notwithstanding, Plaintiff also provides sufficient evidence that Defendant did have notice in that it had knowledge that Perea regularly, for ABC’s benefit and as part of the process of watering the plants at the front of the building along the sidewalk, placed a 100 foot, 3/4 inch hose on the sidewalk, and caused it to move every time the gardener watered another pot or planter.  (SSMFD No. 14.)  Thus, there is a triable issue of fact as to whether Defendant had actual or constructive notice.

The Court finds that there is a disputed issue as to whether Plaintiff’s encounter of the hose was an open and obvious condition.  Defendant presents evidence that may support that Plaintiff should have foreseen the obvious dangerous condition of the hose through Plaintiff’s deposition where Plaintiff admitted that she observed the subject hose 10 seconds prior to her fall, that she perceived the hose, and approached the same carefully.  However, Plaintiff’s notice of the presence of the hose does not necessarily mean that she would have known it would move just before she stepped on it.  (SSMFD No. 6.)  Thus, there is a question as to whether the hose presented an open and obvious condition that Plaintiff should have known.  “The obvious nature of a danger is not, in and of itself, sufficient to establish that the owner of the premises on which the danger is located is not liable for injuries caused thereby, and that although obviousness of danger may negate any duty to warn, it does not necessarily negate the duty to remedy.”  (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 108, 118.)  Thus, there is a triable issue of fact as to whether Plaintiff’s encounter of the hose was an open and obvious condition. 

VI.       CONCLUSION

            In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.