Judge: William A. Crowfoot, Case: 20STCV49568, Date: 2022-12-14 Tentative Ruling

Case Number: 20STCV49568    Hearing Date: December 14, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On December 29, 2020, plaintiff Kimberly White (“Plaintiff”) filed this action against defendant American Multi-Cinema, Inc. (“Defendant”) alleging causes of action for general negligence and premises liability.  Plaintiff alleges that on March 11, 2020, she tripped and fell due to an unmarked dark colored handrail in a movie theater. 

On September 29, 2022, Defendant filed this motion for summary judgment.  Defendant argues that summary judgment should be granted because Plaintiff cannot establish that it had notice of the defect or establish the element of causation.  Defendant also argues that the defect was open and obvious, or that it was trivial.  

II.          FACTUAL BACKGROUND

On March 11, 2020, Plaintiff attended the movie, “Call of the Wild”, with her grandson in Theater 8.  (Defendant’s Undisputed Material Fact (“UMF”) No. 11.)  She entered the theater during the credits after the lights had dimmed.  (UMF No. 12.)  After the movie, while the credits were rolling with mid-level lighting, she exited the theater.  (UMF No. 15.)  Plaintiff stated at deposition she tripped over the rail base at the bottom of the handrail as the cause of her claimed fall.  (UMF No. 16.) 

III.        LEGAL STANDARD

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.)  “[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).)  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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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

Plaintiff’s Evidentiary Objections

Objection Nos. 1-2: Overruled.  Specific testimony objected to is not identified.

Objection Nos. 3-4: Sustained. Lacks foundation.

Objection No. 5: Overruled.

Objection Nos. 6-7: Sustained.  Lacks foundation.

Objection Nos. 8-14 to Declaration of John Tyson: Sustained, lacks foundation. 

V.           DISCUSSION

Plaintiff alleges that she tripped and fell due to an unmarked dark colored handrail in the theater.  (Compl., Prem.L-1; GN-1.)  It is undisputed that in her deposition, Plaintiff testified that she tripped over a rail base when she was reaching for the handrail to descend the stairs during the post-movie credits.  (UMF No. 5.)  It is also undisputed that she responded to written discovery requests and stated that Defendant’s failure to place adequate lighting and keep stairways reasonably well-lit and free of obstructions or hazards created the dangerous condition, and that the dark railing was not easily seen because it was painted the same color as the floor.  (UMF No. 4.) 

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.)

Notice and Causation

As an initial matter, the issue of “notice” is irrelevant in this case.  A defendant is charged with notice of the dangerous condition if it or its employees created the dangerous condition.  (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 382.)  However, through Defendant’s papers, it becomes apparent that despite using the terms “notice” and “causation”, Defendant is actually arguing that Plaintiff’s alleged dangerous condition did not exist in Theater 8, and that Plaintiff tripped because she was not paying attention. 

Defendant’s arguments are ultimately unpersuasive to show that Plaintiff cannot establish a cause of action.  It is undisputed by both parties that Plaintiff attended a movie that was in Theater 8.  (UMF No. 11.)  Defendant contends that a railing with a base does not exist in Theater 8 and refers to photos attached as Exhibit G to the declaration of E. Susie Mendoza.  However the Court sustains Plaintiff’s objections to the photographs on the grounds that they lack foundation and are improperly authenticated, and excludes them from consideration in deciding this motion.  Without the photos, Defendant has no other evidence to prove that Plaintiff’s alleged dangerous condition does not exist.  Additionally, John Tyson, Defendant’s expert, describes the lighting conditions in general terms, stating that the theater has a “midlevel credit setting” and that lighting is provided through ceiling can lights and wall sconces.  (Tyson Decl., ¶ 14.)  Tyson also describes LED strips on the stairs and attaches a photo of the lights on the stairs.  Tyson concludes that Plaintiff did not lose her balance due to an unmarked, dark colored handrail in the theater, but provides no reasoning for this opinion.  Further, it was never alleged that there was any debris on the steps, therefore evidence about any inspections is irrelevant.  And last, Defendant’s argument about Plaintiff’s own inattention is an argument that speaks to comparative fault, not Defendant’s own negligence.  Accordingly, the motion for summary judgment cannot be granted on these grounds.  

Open/Obvious

Defendant next argues that it did not owe Plaintiff a duty because the railing was open and obvious.  “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.)  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 (2007) 156 Cal.App.4th 11, 24-25.)

Defendant argues that the handrail was an open and obvious danger because it stood out from the colorful carpet on the stairway.  (Motion, 9:17-18.)  As stated above, the photos of the theater are unauthenticated and inadmissible, therefore there is no evidence of what the carpet or railing look like.  (See Separate Statement, UMF No. 10, referringt to Ex. G.)  Also, Defendant’s argument that Plaintiff’s inattention caused her to fall is an issue of comparative fault and unrelated to whether the railing base was open and obvious.

Trivial Defect

Last, Defendant argues that any defect, if it existed, was trivial.  However, Defendant presents no evidence of the defect, much less its triviality.  Therefore, summary judgment on this ground is denied. 

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 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.