Case Number: BC712381 Hearing Date: September 17, 2019 Dept: 2

Defendant’s Motion for Summary Judgment, filed on 6/27/19, is DENIED. Defendant has not established that it is entitled to judgment in its favor based on the material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

The court has considered Plaintiff’s opposition although it was served one day late. The statute provides that the opposition “shall be served and filed not less than 14 days prior to the hearing” which was 9/3/19. Cal Code Civil Procedure § 437c(b)(2). Plaintiff served the opposition by mail on 9/4/19. Contrary to Defendant’s argument in Reply, the deadline for the opposition is not increased by five calendar days for service by mail under Cal Code Civil Procedure § 1013(a). The statute expressly states that “Sections 1005 and 1013, extending the time in which a right may be exercised or an act may be done, do not apply to this section.” Cal Code Civil Procedure § 437c(b)(6).

The court has broad discretion “to regulate the submission of materials in connection with pending motions.” Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624–25. Additionally, the court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal Code Civil Procedure § 475. Defendant has not demonstrated any prejudice caused by the late filing. Defendant filed a reply brief which the court has considered. Cal Code Civil Procedure § 475.

The undisputed facts establish that this case arises from a trip and fall accident that occurred 11/5/16, at Defendant’s store, at approximately 9:00 p.m. UF 1. On that date, Plaintiff parked his car in the parking lot on the middle left side. UF 3. Upon exiting the store, he walked towards his car located to his right. Approximately four feet from the exit of the store, there was a cement slab to the right side. UF 4.

Plaintiff attributes his fall only to the slab. UF 8. Plaintiff filed a complaint asserting a cause of action for premises liability. UF 2.

A landowner’s duty is to use reasonable care to keep the property reasonably safe and warn of latent or concealed dangers. A landowner is not liable for obvious conditions, or those conditions that could have been observed in the exercise of reasonable care. Edwards v. Cal. Sports (1988) 206 Cal. App. 3d 1284, 1288.

Defendant has not established the absence of a dangerous condition. As Defendant’s case authority establishes, negligence is not inferred just because Plaintiff fell. Plaintiff has the burden of showing the existence of a dangerous condition. Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 556.

Defendant cites a portion of the deposition wherein Plaintiff testified that he fell because of the cement slab since he fell on top of it. Motion, Ex. 2, pages 24-25.

Plaintiff testified that he tripped on a slab of cement that was there, that he had not seen before. Opposition, Ex. A, 15:18-24. He did not attribute anything else to his fall. 15:25 – 16:2. He also signed a Customer Statement on 11/5/16, the day of the accident, stating that the cement block caused the incident. He stated he tripped over a cement block. Opposition, Ex. B. Fact 7 remains in dispute.

Whether the cement slab was “open and obvious” is a triable issue of fact.

A landowner does not have a duty to warn of a dangerous condition where such condition is “open and obvious.” Matherne v. Los Feliz Theater (1942) 53 Cal.App.2d 660, 666.

Defendant cites Plaintiff’s deposition wherein he testified that he did not remember the border of the cement block being colored. Plaintiff had never noticed it before. Motion, Ex. 2, 88:13-17. There is no evidence to support the asserted dimensions of the block stated in Fact 5. That is not proved. Defendant also submits a photograph of the slab with yellow borders that was completed and painted on 9/9/16, approximately two months before the incident.

Plaintiff testified that when he went back to take a photograph of the slab two days after the incident, it was colored yellow. He testified that on the day of the incident, it was not painted yellow. He didn’t see yellow. Opposition, 93:5-25. He testified that the slab was “cement color.” Id., 16:25 – 17-1. Accordingly, Fact 5 is in dispute.

Moving party is ordered to give notice.