Case Number: BC642773 Hearing Date: July 26, 2018 Dept: 2

Motion for Summary Judgment by Defendants, Roben Zokaeem and Maryam Zokaeem, filed on 1/12/18 is DENIED. Defendants have not met their initial burden of establishing that they are entitled to summary judgment based on the material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

Defendant’s objections to the Declaration of Michael Stapleford (Plaintiff’s expert), the Permit and Inspection report (Exhibit C), Contractors License Detail, (Exhibit D),

Pursuant to Cal. Code Civ. Proc. § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review. Cal. Code Civ. Proc. § 437c(q).

Here, Defendants did not meet their threshold burden of establishing they are entitled to summary judgment based on the material facts proffered. As such, the burden does not shift to Plaintiff to proffer evidence creating a triable issue of fact. Cal Code Civil Procedure § 437c(p)(2).

The Undisputed Facts. The parties do not materially dispute the following facts: Plaintiff is a self-employed landscaper and has been gardening as an occupation for 12- to 13 years. UF 2. Defendant, Mr. Zokaeem, had spoken on the telephone with Plaintiff about the gardening work that Defendant wanted Plaintiff to perform. UF 3.

The parties met on 3/14/15 to discuss the work that Plaintiff would do such as planting flowers and trees on the premises. UF 4. That same day, Plaintiff observed that the driveway of the premises was under construction. UF 5. He observed wire mesh covering portions of the backyard. UF 6. On that date, Plaintiff walked on the wire mesh, which consisted of 4-inch by 4-inch thin, silver metal squares customarily used in the process of pouring concrete. UF 7, 8.

When Plaintiff arrived at the property on 3/15/15, approximately 1,800 square feet of the property was covered in wire mesh. UF 14. He walked over the wire mesh to the top of the driveway to sit on a wall while his day laborer brought up his equipment. UF 15. Defendant testified that as he was walking to get to the wall, he could actually see the wire meshing on the ground. Motion, Ex. B. As he was leaning against the wall, he had placed his feet right in front of him, and the ground was dirt with wire mesh. UF 16.

Plaintiff proceeded off the wall and moved his right foot forward. As he moved his left foot, it got caught in the wire mesh and he fell. UF 17.

Duty owed by landowners/possessors/controllers of property.

Premises liability is a form of negligence, which involves the duty of a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.

Open and obvious condition. Defendant correctly argues that where the condition is open and obvious, Defendant does not owe a duty to warn, since the condition itself constitutes a warning. Matherne v. Los Feliz Theater (1942) 53 Cal.App.2d 660, 666-667.

Plaintiff acknowledged that since he was able to see the mesh wires, he did not need anyone to tell him to watch out for mesh wires. Motion, Ex. B, 65:4-67.

He acknowledged that if his foot got caught in the mesh wires while walking, there was a potential likelihood of tripping and falling. Motion, Ex B, 65:8-11. UF 18. Plaintiff’s response to this material fact does not create a triable issue that Plaintiff knew of the danger of walking on the wire mesh. Whether or not Defendant had safety precautions in place is irrelevant to whether the condition was open and obvious.

There is also no dispute that Plaintiff was warned by an individual assisting in the driveway construction to be careful with the wire. UF 19. Plaintiff does not dispute that he was warned of the danger regardless of the open and obvious condition.

Even if the condition was “open and obvious” this would obviate the duty to warn. Defendants are still liable despite the obviousness of the condition if it is foreseeable that the danger may cause injury, such as when necessity requires persons to encounter it. Under those conditions, Defendants have a duty to remedy the condition. Martinez v. Chippewa Enterprises, Inc., (2004) 121 Cal. App. 4th 1179, 1184.

Defendants’ duty to Plaintiff is not discharged entirely. As Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, states, “recent authority makes it clear that while a readily apparent danger may relieve the property owner of a duty to warn, it no longer necessarily absolves him of a duty to remedy that condition.” Donohue at 665.

This type of assumption of the risk falls into the category of “secondary assumption of the risk.” Plaintiff’s deliberate conduct in knowingly encountering the danger is relevant for the purposes of determining comparative fault, but “such behavior does not automatically bar Plaintiff’s recovery.” Donohue at 666.

Defendants have not negated their separate duty to remedy a condition based on the material facts proffered, even if there is no dispute that the condition is “open and obvious.”

Accordingly, Defendants have not met their initial burden that they are entitled to summary judgment based on the lack of duty as the material facts proffered are insufficient to establish that Defendants did not owe a duty. Cal Code Civil Procedure §437c(p)(2).

Trivial Defect. The “trivial defect” defense provides that Defendants do not owe a duty to Plaintiff for defects that can be characterized as “minor, trivial, or insignificant.”

Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388–389.

The “trivial defect” defense is available to private landowners. Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.

Whether a defect is “dangerous” is an issue of law to be decided by the Court. The character of the defect can be considered by the Court as a matter of law, if the facts warrant only one conclusion. Fielder v. City of Glendale (1977) 71 Cal. App. 3d 719, 734; Davis v. City of Pasadena (1996) 42 Cal. App. 4th 701, 704.

Defendants argue here that “[n]othing about the mesh was inherently dangerous” as it was part of the construction process. Motion 6:10-12. However, Defendants’ undisputed fact 18 admits that there was a likelihood of falling if Plaintiff’s foot got caught in the wire mesh. Defendants further acknowledge that another worker warned Plaintiff to be careful of the wire. UF 19. The facts do not warrant the conclusion that the mesh was “inherently not dangerous.” Motion 6:10-12.

Actual or constructive notice. Defendants’ argument here conflates the issue of notice of the dangerous condition with Defendants’ general duty of care as a landowner owed to Plaintiff.

Defendants’ affirmative duty to act for the protection of individuals coming upon the land “is grounded in the possession of the premises and the attendant right to control and manage the premises.” Preston v. Goldman, (1986) 42 Cal.3d 108, 118-119.

Therefore, an analysis of the Rowland factors to demonstrate that Defendants owed Plaintiff a duty is superfluous given the well-established history of case authority affirming the duty owed by a landowner/possessor/or controller of property to those coming upon the land.

Defendants cite Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, for its analysis of the issue of whether easement holders owed a duty akin to an owner or occupier of land. Cody F. at 1240–1241.

The court held that the owners of an easement that provided access over a roadway owed no duty of care to the Plaintiff who had been attacked by a dog. Citing the easement owner’s lack of control, that the easement owners did not create the hazard, did not own the dogs that attacked Plaintiff, had no interest in the land from which the dogs escaped, and did not own the road where the attack took place, the court found no duty owed. Cody F. at 1236. Cody F. is not applicable to this case.

Here, Defendants’ ownership and control of the property, which was under construction is not in dispute. UF 1, 5.

The issue of actual or constructive notice is relevant to a claim for premises liability because it is “key” for liability to attach since the owners are not insurers of the Plaintiff’s personal safety. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.

Defendants misstate the application of constructive notice by contending that they did not know Plaintiff intended to trample over a concrete job site. Motion 7:24-26. The issue is whether Defendants had actual notice of the dangerous condition “or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. . . .’ ” Ortega at 1206.

None of the material facts proffered are probative of Defendants’ lack of actual or constructive notice of the dangerous condition. Regardless, Defendants remain liable if they created the condition. Under those circumstances, knowledge is imputed to the landowner.

Hatfield v. Levy Bros. (1941) 18 Cal. 2d 798, 806.

There is no dispute that the Defendants’ property was undergoing construction. UF 1, 5. The material facts otherwise do not address whether or not Defendants created the condition.

Causation. Defendants argue that there is no evidence to support that Defendants caused Plaintiff’s fall since they were not present at the home and did not see Plaintiff prior to his fall, and that Plaintiff’s injury was not a foreseeable result of Defendants’ conduct. Motion, 9:2-3.

The issue of causation is a question of fact for the jury’s determination. Whether Defendants’ act or omission is a substantial factor in causing Plaintiff’s injury may not be resolved by summary judgment unless the undisputed facts establish no room for a reasonable difference of opinion. Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288.

Defendants acknowledge that the steel wire mesh was present on the property as it was used in the process of pouring concrete. UF 8. Defendants’ material facts otherwise do not assert any material facts demonstrating that their conduct was not a substantial factor in causing Plaintiff’s injuries.

Where summary judgment is based on absence of evidence as Defendants argue here, Defendants must make an affirmative showing by way of direct or circumstantial evidence that Plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Such a showing involves “something significantly more than simply ‘pointing out to the court’ that ‘there is an absence of evidence” before the burden shifts to the Plaintiff.

Hagen v. Hickenbottom (1995) 41 Cal. App. 4th 168, 186m Defendants have not met that burden.

Moving party is ordered to give notice.