Motion for Summary Judgment and/or SAI

Tentative Ruling: Defendant, the Latino Center for Prevention and Action in Health and Welfare’s Motion for Summary Judgment/SAI is DENIED, in its entirety. The Court SUSTAINS Objections Nos. 1 and 2, to the Declaration of Ms. Gonzalez and OVERRULES the remaining objections, submitted against the Declarations of Ms. Gonzalez and Mr. Fransen. The Court OVERRULES all objections submitted by Defendant.

“In California, it has long been the law that a person may be liable for injuries resulting from his failure to use ordinary care in the management of his property.” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330, citing Civ. Code, §1714; see also CACI 1001.) Further, a landowner “has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition.” (Id.) However, as a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property. (Christoff v. Union Pacific R. Co. (2005) 134 Cal.App.4th 118, 126.) Nonetheless, pursuant to Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, “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, if the breach of duty was a proximate cause of any injury.” (Id. at 122.)

Here, a triable issue of fact exists, as to whether the danger was “open and obvious.” Similarly, a triable issue exists, as to whether injury was sufficiently foreseeable, to establish a duty to remedy any “open and obvious” danger. More specifically, Plaintiff submits evidence demonstrating the hole was difficult to see at night and in an area that was poorly lit. (Exhibit “C” of French Dec., Deposition of Susan Sanchez.) Further, Ms. Sanchez testified she saw nothing which indicated the presence of the hole and noticed the orange cone only after she fell in. (Exhibit “C” of French Dec.) Additionally, Mr. Avrit testified the opening would be difficult to perceive at night. (¶7 of Avrit Dec., Exhibit “A” of French Dec.)

Plaintiff also submits evidence which suggests it was foreseeable a pedestrian would enter the parking lot from the right entryway. (Exhibit “B” of French Dec., Deposition of Rubi Gonzalez, 69:17-23.) Further, Ms. Gonzalez (the Facilities Manager for Defendant), testified “someone entering the parking lot using the right side could walk by the cone into the open hole.” (Exhibit “B” of French Dec., Deposition of Rubi Gonzalez, 96:24-97:2.)

This evidence is sufficient to defeat summary judgment and raise a question, as to whether the hole was “open and obvious.”

Additionally, even if the Court were to consider the new evidence offered in the Reply, this evidence merely confirms the existence of triable issues: In contrast to the above, Ms. Gonzalez testified the hole was obvious. (Exhibit “A” of Wiztman Dec.: 89:3-5) Similarly, Mr. Fransen declares the lighting at the time of the fall exceeded the requirements of the Municipal Code of the City of Santa Ana. (¶3 of Second Fransen Dec.) As contrary evidence exists, the issue must be resolved by the trier of fact.

Similarly, reasonable minds could differ as to: (1) whether Defendant acted reasonably in placing the cone to the side of the hole; and (2) whether the cone provided an adequate warning.

As discussed above, evidence has been submitted which suggests Defendant knew of the risk posed by the hole. (Exhibit “B” of French Dec., Deposition of Rubi Gonzalez, 96:24-97:2) And Mr. Avrit declares that a single cone was insufficient to provide adequate warning as “[a] single cone does not notify pedestrians as to what or where the hazard is in relation to the cone.” (¶8 of Avrit Dec., Exhibit “A” of French Dec.) Mr. Avrit also testified Defendant could have easily cordoned off the area or placed a sheet of ply wood over the drain, as a temporary cover. (¶8 of Avrit Dec., Exhibit “A” of French Dec.)

Defendant provided no evidence which demonstrates further warning would have been infeasible, such that a single cone was necessarily reasonable; rather, Defendant suggests (without evidence) that its conduct was reasonable, as Defendant believed the property was owned by the City.

Defendant provides no authority which demonstrates the lack of knowledge of ownership diminishes the duty owed by a landowner.

Defendant’s sole argument for asserting a lack of causation is: (1) the assertion the City removed the drain cover; and (2) the assertion Defendant provided Plaintiff adequate warning.

As Defendant fails to provide any evidence demonstrating the City is responsible for the removal of the drain cover and as it is undisputed Defendant is the owner of the property, the first argument fails.

Further, given that there is a triable issue concerning the adequacy of Defendant’s warning, the Court cannot conclude Plaintiff is solely to blame for her fall.