Case Number: BC649237 Hearing Date: July 26, 2018 Dept: 3

YANZHEN CHEN, et al.,

Plaintiffs,

vs.

LOS ANGELES BOYS AND GIRLS CLUB, et al.,

Defendants.

CASE NO: BC649237

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Dept. 3

1:30 p.m.

July 26, 2018

Defendants Los Angeles Boys and Girls Club’s and Los Angeles Boys and Girls Club Foundation’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED in its entirety.

On February 2, 2017, Plaintiff Yanzhen Chen (“Chen”) and Shichun Zhu (collectively, “Plaintiffs”) filed their complaint, asserting causes of action against Defendants Los Angeles Boys and Girls Club (“The Club”), Los Angeles Boys and Girls Club Foundation (“Foundation”) (collectively, “Defendants”) and Does 1-25 for negligence and loss of consortium. Plaintiffs allege that Plaintiff Chen was a guest at the property located at 2635 Pasadena Avenue in Los Angeles when she fell into an empty swimming pool and suffered serious injuries.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. 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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 166.

discussion

Defendants now move for summary judgment in their favor and against Plaintiffs on Plaintiff’s complaint; in the alternative, Defendants seek summary adjudication of the following issues:

Issue No. 1: Plaintiff Chen’s cause of action for negligence against The Club fails as a matter of law because an empty pool is an open and obvious danger;

Issue No. 2: Plaintiff Chen’s cause of action for negligence against The Foundation fails as a matter of law because an empty pool is an open and obvious danger;

Issue No. 3: Plaintiff Shichun Zhu’s cause of action for loss of consortium against The Club fails as a matter of law because Plaintiff Chen cannot establish the essential elements of her claim for negligence; and

Issue No. 4: Plaintiff Shichun Zhu’s cause of action for loss of consortium against The Foundation fails as a matter of law because Plaintiff Chen cannot establish the essential elements of her claim for negligence.

In the complaint, Plaintiffs allege that Defendants owned, leased, operated, and/or were at all times mentioned responsible for maintaining the facility located at 2635 Pasadena Avenue in Los Angeles, and all of its property area and buildings, including the pool room (“Subject Location”). (Complaint, ¶ 10). On or about December 21, 2016, Defendants held an event at the Subject Location wherein families were invited to pick out bicycles that were displayed in the pool room at the Subject Location. (Complaint, ¶ 11). The swimming pool in the room was empty. (Id.). It was not fenced off or marked with cones, tape, or warning signage. (Id.) The tiling in the room did not call attention to the presence of the empty swimming pool. (Id.) Plaintiff Chen attended the event at the Subject Location on or about December 21, 2016 with her children. (Id., ¶ 12). While Plaintiff Chen’s attention was focused on the bicycles displayed by Defendants, Plaintiff Chen suffered a serious and unexpected fall into the empty swimming pool. (Id.).

The parties do not dispute that on August 16, 2016, Plaintiff Chen enrolled her son, Allen Zhu (“Allen”), at the Club. (UMF No. 1). At Christmas time, the Club held an event where donated gifts were given to its members. (UMF No. 2). The donated gifts included approximately 200 bikes. (UMF No. 3). The bikes were matched to each member, tagged, and stored for pick up at a later date. (UMF No. 4). The bikes were stored on the deck of the indoor swimming pool because it was not in use at the time. (UMF No. 5). On December 21, 2016, Allen, his younger brother Ryan and their mother, Plaintiff Chen, arrived at the Club to pick up Allen’s bike. (UMF No. 6). Plaintiff Chen testified that her children initially followed Lance Holliday (“Holliday”) into the swimming pool area, and that she went in separately afterwards. (Needelman Decl., ¶ 3, Exh. 1, 42:17-21; 43:18-44:21). Plaintiff Chen walked through the door into the swimming pool area and saw the empty swimming pool. (UMF No. 8). Plaintiff stood on the deck observing Holliday look for Allen’s bike. (UMF No. 9). Plaintiff then saw the larger sized bikes on the other side of the pool and walked towards them to get a closer look. (UMF No. 10). Plaintiff walked into the empty swimming pool. (UMF No. 11).

Although Defendants urge that the Declaration of Brad Avrit is objectionable on several grounds, they failed to file evidentiary objections in compliance with California Rules of Court Rule 3.1354.

Civil Code § 1714(a) states, in part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want or ordinary care or skill in the management of his or her property…” “The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.” Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998 (citing Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917-918; Civil Code § 1714(a)). “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080 (citation omitted) (internal quotations omitted). A landowner has a duty of ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 515; Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, 1619.

Defendants claim they are entitled to summary judgment because they have no duty to Plaintiff as the empty pool was an open and obvious danger which Plaintiff admittedly perceived before falling into it.. In Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, the Supreme Court summarized the so-called Rowland factors for determining whether a duty of care exists: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’” Id. at 771 (citing Rowland v. Christian (1968) 69 Cal. 2d 108). Accord, Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213. Although foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, one or more of the Rowland factors may be determinative of the duty analysis in a given case. Castaneda, supra; Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 237, fn. 15. Legal duty in negligence causes of action is a question of law. Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. (Osborn [v. Mission Ready Mix (1990)] 224 Cal.App.3d 104 at pp. 114-121.) ‘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.) In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. (Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408.) Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.

“An exception to this general rule exists when ‘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).’ (Osborn, supra, 224 Cal.App.3d at p. 122, italics omitted.) In other words, while the obviousness of the condition and its dangerousness may obviate the landowner’s duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.” Id.

In defining duty, “foreseeability plays a very significant role, ‘but a court’s task – in determining “duty” – is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620.

In Jacobs, the potential purchaser of a vacant, bank-owned property sued a residential brokerage company for negligence, stemming from an incident in which he, while viewing the property, fell into an empty pool after the diving board he was standing on collapsed. Defendants urge that Jacobs “determined as a matter of law that an empty pool is an open and obvious danger which eliminates a duty to warn or remedy.” (Motion, 6:22-24). Not so; in that case, plaintiffs did not challenge the trial court’s conclusion that “[t]he dangers of the empty swimming pool were per se obvious to any adult.” Instead, the issue there was “whether there was any evidence from which a trier of fact could find that, as a practical necessity, Jacques was foreseeably required to expose himself to the danger of falling into the empty pool.” Id. at 447.

The Court of Appeal determined that the case was distinguishable from Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, wherein the court determined there was a practical necessity for the plaintiff to walk across wet pavement because the pavement was the “principal if not sole access way from the street to defendant’s building, which housed a government office serving the public:” “Here, potential buyers did not have to approach the dangerous condition (i.e., the empty pool) in order to inspect the backyard. They could easily avoid the edge of the empty pool as they viewed the property. Moreover, there is nothing in the record suggesting that Jacques was under a ‘necessity; to confront the dangerous condition of the empty pool. Although Jacques wished to look over the fence, he was not compelled to do so as part of his inspection. He could have abandoned that part of his inspection rather than stand on a diving board over an obviously empty pool. Alternatively, he could have found a safer means of assessing whether someone could jump over the fence into the backyard. It was not reasonably foreseeable that he or anyone else would use the diving board for that purpose.” Id. at 448.

The Jacobs Court of Appeal further determined that the case was distinguishable from Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, wherein plaintiff slipped and fell while walking in spiked golf shoes across the defendant’s veranda, which was a rough, troweled concrete surface, even though she knew that her footing would not be as stable as it would have been on grass. The route taken by plaintiff was not the sole entrance to the golf club and there were “no imperfections or defects in the concrete walk surface.” Id. at 24. The court in Beauchamp determined that, although the plaintiff knew that golf shoes reduce one’s traction, she was “entitled to consider [the walkway] reasonably safe” “in view of the [club’s] invitation to use the walkway” and that “the question of her appreciation of the risk or her imputed knowledge of it, is not so overwhelming as to properly permit a nonsuit.” Id. at 34.

The Jacobs Court of Appeal noted that “[h]ere, Coldwell did not invite potential buyers to approach the edge of the empty swimming pool as part of their inspection of the property. To the contrary, the MLS listing warned potential buyers to ‘please use CAUTION around the empty pool.’ As the trial court aptly observed, ‘[t]he circumstances presented … do not involve facts showing a practical necessity that [Jacques] expose himself to the danger posed by an empty swimming pool, or an invitation from Coldwell that he do so. Instead of being required to expose himself to the dangers posed by the empty pool by his work duties [or otherwise], the evidence indicates that [Jacques] voluntarily exposed himself to the dangers posed by the empty pool in order to look over a fence.’” Jacobs, supra, 14 Cal.App.5th at 448.

The Jacobs Court of Appeal, in affirming the trial court, agreed that “the undisputed facts indicate that it was not reasonably foreseeable that [Jacques] would expose himself to the risks associated with the empty pool, as he was neither required nor invited to do so. Simply stated, as a matter of law it was not foreseeable that he would knowingly embrace an entirely obvious risk by voluntarily using the diving board on an empty pool for a purpose for which it was not intended.” Id. at 448-449.

Here, it was forseeable that someone at the bicycle give away could fall into the empty pool without any precautions being taken to prevent it. Plaintiff Chen was invited to the pool room to retrieve Allen’s bike..The bikes were arranged against the walls of the pool room, so that the walkway around the bikes was directly next to the pool. (Opp. Ex. 1, 55:23-56:8). There were no signs, cones, or caution tape put up around the pool. (Id., 67:1-12).

Defendants do not discuss the other Rowland factors to be considered in the duty analysis but the Court finds that in sum they support imposition of a duty here. There is a certainty of injury and a close connection between Defendants’ alleged negligence and the accident. The policy of preventing future harm supports imposition of a duty to encourage property owners to take minimal precautions when having guests including children attend events around empty pools. Moreover, tfhe evidence presented shows that it would not have been unreasonably expensive for Defendants to have placed temporary barriers around the empty pool.

Additionally, Defendants have not met their burden as to Plaintiff Zhu’s loss of consortium cause of action, inasmuch as it is derivative to the establishment of liability on the spouse’s underlying personal injury claim. Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 162.

Accordingly, Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication is denied in its entirety.

Dated this 26th day of July, 2018