This case was last updated from Los Angeles County Superior Courts on 01/10/2022 at 21:12:00 (UTC).

ALEXANDRA EBELING VS MORNING VIEW HOTEL BH I & II, LLC DBA MR. C MANAGER, LLC A NEW YORK LIMITED LIABILITY COMPANY, A CALIFORNIA LIMITED LIABILITY COMPANY AND DOES 1 THROUGH 100, INCLUSIVE

Case Summary

On 01/28/2019 ALEXANDRA EBELING filed a Personal Injury - Other Personal Injury lawsuit against MORNING VIEW HOTEL BH I II, LLC DBA MR C MANAGER, LLC A NEW YORK LIMITED LIABILITY COMPANY, A CALIFORNIA LIMITED LIABILITY COMPANY AND DOES 1 THROUGH 100, INCLUSIVE. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are THOMAS D. LONG, CHARLES C. LEE and AUDRA MORI. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2925

  • Filing Date:

    01/28/2019

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

THOMAS D. LONG

CHARLES C. LEE

AUDRA MORI

 

Party Details

Plaintiff and Appellant

EBELING ALEXANDRA

Defendants and Respondents

EL BH I & II LLC DBA MR. C MANAGER LLC A NEW YORK LIMITED LIABILITY COMPANY A CALIFORNIA LIMITED LIABILITY COMPANY

MORNING VIEW HOTEL BH I & II LLC A CALIFORNIA LIMITED LIABILITY COMPANY

MR. C MANAGER LLC A NEW YORK LIMITED LIABILITY COMPANY A CALIFORNIA LIMITED LIABILITY COMPANY

Respondents and Defendants

MORNING VIEW HOTEL BH I & II LLC A CALIFORNIA LIMITED LIABILITY COMPANY

MR. C MANAGER LLC A NEW YORK LIMITED LIABILITY COMPANY A CALIFORNIA LIMITED LIABILITY COMPANY

Not Classified By Court

MORNING VIEW HOTEL BH I & II LLC DBA MR. C BEVERLY HILLS

Attorney/Law Firm Details

Plaintiff Attorney

MANSELL ROBERT

Defendant Attorney

CRANERT TERRENCE L

 

Court Documents

Request for Dismissal

9/13/2021: Request for Dismissal

Minute Order - MINUTE ORDER (COURT ORDER RE RETURN OF LODGED MEDIA DOCUMENT FOR HEARING SE...)

8/26/2021: Minute Order - MINUTE ORDER (COURT ORDER RE RETURN OF LODGED MEDIA DOCUMENT FOR HEARING SE...)

Minute Order - MINUTE ORDER (COURT ORDER RE MOTION FOR SUMMARY JUDGMENT ON APPEAL;)

8/26/2021: Minute Order - MINUTE ORDER (COURT ORDER RE MOTION FOR SUMMARY JUDGMENT ON APPEAL;)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE MOTION FOR SUMMARY JUDGMENT ON APPEAL;) OF 08/26/2021

8/26/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE MOTION FOR SUMMARY JUDGMENT ON APPEAL;) OF 08/26/2021

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE RETURN OF LODGED MEDIA DOCUMENT FOR HEARING SE...) OF 08/26/2021

8/26/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE RETURN OF LODGED MEDIA DOCUMENT FOR HEARING SE...) OF 08/26/2021

Abandonment of Appeal Submitted APP-005/107 CR-137/145 - APPEAL - NTC DESIGNATING RECORD OF APPEAL APP-003/010/103

7/15/2021: Abandonment of Appeal Submitted APP-005/107 CR-137/145 - APPEAL - NTC DESIGNATING RECORD OF APPEAL APP-003/010/103

Appeal - Clerk's Notice of Abandonment of Appeal - APPEAL - CLERK'S NOTICE OF ABANDONMENT OF APPEAL B313070, NA05/11/21

7/16/2021: Appeal - Clerk's Notice of Abandonment of Appeal - APPEAL - CLERK'S NOTICE OF ABANDONMENT OF APPEAL B313070, NA05/11/21

Judgment - JUDGMENT PROPOSED JUDGMENT FOR DEFENDANT MORNING VIEW HOTEL BH I & II, LLC DBA MR. C BEVERLY HILLS

1/13/2021: Judgment - JUDGMENT PROPOSED JUDGMENT FOR DEFENDANT MORNING VIEW HOTEL BH I & II, LLC DBA MR. C BEVERLY HILLS

Appeal - Notice of Filing of Notice of Appeal

5/24/2021: Appeal - Notice of Filing of Notice of Appeal

Appeal - Notice of Appeal/Cross Appeal Filed

5/11/2021: Appeal - Notice of Appeal/Cross Appeal Filed

Request for Judicial Notice

4/26/2021: Request for Judicial Notice

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (MICHELLE G. COOPER #13572)

4/26/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (MICHELLE G. COOPER #13572)

Notice of Ruling

4/28/2021: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

4/26/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

4/5/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT) OF 04/05/2021

4/5/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT) OF 04/05/2021

Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

4/1/2021: Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Objection - OBJECTION TO EVIDENCE

4/1/2021: Objection - OBJECTION TO EVIDENCE

34 More Documents Available

 

Docket Entries

  • 10/06/2021
  • Docketat 08:30 AM in Department 31, Audra Mori, Presiding; Status Conference (ReJudgment or Dismissal) - Not Held - Vacated by Court

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  • 09/13/2021
  • DocketRequest for Dismissal; Filed by ALEXANDRA EBELING (Plaintiff)

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  • 08/26/2021
  • Docketat 4:42 PM in Department 31, Audra Mori, Presiding; Court Order

    Read MoreRead Less
  • 08/26/2021
  • Docketat 4:29 PM in Department 31, Audra Mori, Presiding; Court Order

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  • 08/26/2021
  • DocketMinute Order ( (Court Order Re Motion for Summary Judgment on Appeal;)); Filed by Clerk

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  • 08/26/2021
  • DocketCertificate of Mailing for ((Court Order Re Return of Lodged Media Document for Hearing Se...) of 08/26/2021); Filed by Clerk

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  • 08/26/2021
  • DocketCertificate of Mailing for ((Court Order Re Motion for Summary Judgment on Appeal;) of 08/26/2021); Filed by Clerk

    Read MoreRead Less
  • 08/26/2021
  • DocketMinute Order ( (Court Order Re Return of Lodged Media Document for Hearing Se...)); Filed by Clerk

    Read MoreRead Less
  • 07/16/2021
  • DocketAppeal - Clerk's Notice of Abandonment of Appeal (B313070, NA05/11/21); Filed by Clerk

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  • 07/15/2021
  • DocketAbandonment of Appeal Submitted APP-005/107 CR-137/145; Filed by ALEXANDRA EBELING (Appellant)

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38 More Docket Entries
  • 03/26/2019
  • DocketProof of Personal Service; Filed by ALEXANDRA EBELING (Plaintiff)

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  • 02/14/2019
  • DocketSummons (on Complaint); Filed by ALEXANDRA EBELING (Plaintiff)

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  • 02/14/2019
  • DocketAmended Complaint (1st); Filed by ALEXANDRA EBELING (Plaintiff)

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  • 02/14/2019
  • DocketAmended Complaint (1st); Filed by ALEXANDRA EBELING (Plaintiff); ALEXANDRA EBELING (Plaintiff)

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  • 02/07/2019
  • DocketStanding Order re PI Procedures and Hearing Dates; Filed by Clerk

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  • 02/07/2019
  • DocketCertificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 01/28/2019
  • DocketSummons (on Complaint); Filed by ALEXANDRA EBELING (Plaintiff)

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  • 01/28/2019
  • DocketComplaint; Filed by ALEXANDRA EBELING (Plaintiff)

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  • 01/28/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 01/28/2019
  • DocketCivil Case Cover Sheet; Filed by ALEXANDRA EBELING (Plaintiff)

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Tentative Rulings

Case Number: *******2925    Hearing Date: April 5, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALEXANDRA EBELING,

Plaintiff(s),

vs.

MORNING VIEW HOTEL BH I & II, LLC,

ET AL.,

Defendant(s).

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CASE NO: *******2925

[TENTATIVE] ORDER CONTINUING HEARING ON MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

April 5, 2021

Defendant, Morning View Hotel BH I & II, LLC dba Mr. C Beverly Hills filed this motion for summary judgment on 1/13/21, setting it for hearing on 4/05/21.

Plaintiff timely filed opposition papers on 3/22/21. Because of the Holiday on 3/31/21, any reply to the opposition is due on or before 4/01/21. However, because of the 3/31/21 holiday, the Court will not have sufficient time to review any reply papers filed on 4/01/21 prior to the hearing on this matter. The Court wishes to review all papers filed in connection with the motion for summary judgment, and therefore continues the hearing date from 4/05/21 to 4-26-2021 at 2:30 p.m. in Department 31 of the Spring Street Courthouse. The time for filing a reply is NOT extended as result of this ruling, and the reply papers remain due on 4/01/21.

If 4-26-2021 is not an available date for the parties, they are ordered to meet and confer, choose a mutually agreeable date, and call the courtroom to reschedule the hearing on the motion to the next mutually available calendar date; the parties should have several date options available when they call, in case the date they choose is not available on the Court’s calendar.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 5th day of April, 2021

Hon. Thomas D. Long

Judge of the Superior Court


Case Number: *******2925    Hearing Date: April 26, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALEXANDRA EBELING,

Plaintiff(s),

vs.

MORNING VIEW HOTEL BH I & II, LLC,

ET AL.,

Defendant(s).

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CASE NO: *******2925

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

April 26, 2021

  1. Background

    Plaintiff, Alexandra Ebeling (“Plaintiff”) filed this action against Defendant, Morning View Hotel BH I & II, LLC dba Mr. C Beverly Hills (“Defendant”) for damages relating to Plaintiff’s trip and fall on a curb.

    Defendant, at this time, moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.

  2. Motion for Summary Judgment

  1. Moving Argument

    Defendant asserts the incident occurred when Plaintiff stumbled while stepping from a brightly painted and plainly visible curb on a sunny afternoon onto an alleyway owned by the City of Los Angeles (the “City”), which was three inches below the curb. The subject curb was adjacent to Defendant’s property. First, Defendant argues the three-inch step down from Defendant’s sidewalk and curb to the City’s alley was open and obvious as a matter of law. Defendant argues the evidence shows the area where Plaintiff fell was brightly illuminated, and that Plaintiff’s view of the curb was unobstructed. Further, Defendant asserts the top of the curb nearest the alleyway had a bright red stripe painted on top to alert pedestrians of the step down. Defendant avers that as a result, it owed no duty to Plaintiff to warn of the open and obvious alleged hazard. Second, Defendant argues that even if the three-inch stepdown on the curb constituted a hazard, Defendant owed no duty to warn of or remediate hazards on the City’s property because the alleyway was owned by the City. Defendant contends that the although the alleyway was used for valet parking, access to Defendant’s hotel, and other commercial purposes, this is insufficient to impose any legal duty on Defendant.

  2. Opposing Argument

    Plaintiff contends the dangerous condition at issue was not the alleyway but is a variable height curb connecting the valet drop-off and alleyway with the entrance of Defendant’s property. Plaintiff contends the curb posed a fall hazard in part because of its location, and that the curb was not open and obvious. Plaintiff further contends the red paint on the curb was barely visible and insufficient to alert pedestrians to the variable height curb. In addition, Plaintiff asserts the curb appears to have been illegally constructed, and there were shadows obscuring the light on the date of the incident. Plaintiff argues Defendant had actual knowledge the curb was a dangerous condition because a similar incident involving the curb occurred in 2015.

  3. Request for Judicial Notice

    Plaintiff, in her opposition, requests the court take judicial notice of the complaint in the case of Rose Marchese, et al. v. Morning View Hotels BHI LLC, et al., LASC Case No. BC587670, filed on 7/13/15. (Opp. Request for Judicial Notice Exh. A.)

    The request is granted. (Evid. Code ; 452(d).) The court takes judicial notice of the existence of the filing but not of any facts or statements asserted therein.

  4. Evidentiary Objections

    In its reply, Defendant submits 9 objections to Plaintiff’s evidence. Objections 1-2 and 4-5 to Plaintiff’s expert’s declaration, Brad Avrit, P.E., (“Avrit”), are overruled, as Avrit provides a proper foundation for the opinions asserted. (But see Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 721-22 [despite safety engineering expert's opinion that the difference in elevation of sidewalk constituted a hazard to a pedestrian, the court find the defect was trivial as a matter of law], and see Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [where photographs of the condition in question are submitted in support of the summary judgment, from which the court can conclude that the condition was not dangerous or was open and obvious, expert witness testimony to the contrary does not create a triable issue of fact.]

    The court declines to rule on Objections 3 and 7-9, as they are not material to the disposition of the motion. (CCP ; 437c(q).)

  5. Burdens on Summary Judgment

    Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this 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 defense thereto.” (Ibid.)

    The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

    [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

    Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

    Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

    Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  6. Analysis

    The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, 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, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

    “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.) 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 Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.)

    Nonetheless, 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.)

    Foreseeability is an elastic factor, and the degree of foreseeability necessary to warrant a finding of a duty will vary from case to case. (Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 509.) In determining whether a given harm was foreseeable, “it is necessary to review the ‘totality of the circumstances’ including the nature, condition and location of the defendant's premises [Citation], in light of the firmly established rule that ‘what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]’ ” (Id.)

    Here, Defendant asserts Plaintiff was at Defendant’s property for a wedding on the date of the incident, on which the weather was clear and sunny. (UMF 3, 25.) The top surface of the curb nearest the alleyway is painted with a bright red stripe approximately 2 ¼ inches in width, the purpose of which is to alert pedestrians of the slight step down from the travertine tile to the alleyway surface. (UMF 13.) In the area where Plaintiff’s accident occurred, that step down from the travertine tile to the alleyway is approximately three inches. (UMF 24.) The unpainted portion of the curb’s top surface is dark grey and is visually distinct from both the white travertine tile and the surface of the alleyway. (UMF 8, 13.) When Plaintiff reached the alleyway, she stepped with the heel of her right platform shoe onto the red-striped curb, rolled her ankle, lost her balance and stumbled forward. (UMF 21-23.)

    Defendant avers the security video reveals that, as Plaintiff walked toward the alleyway, her surroundings were well illuminated by natural sunlight and her view of the red striped curb and the step down to the alleyway surface was unobstructed. (UMF 26.) Plaintiff concedes that the sun was not in her eyes and that there was nothing that would have caused her not to pay attention to where she was walking before she stumbled. (UMF 27.) Photographs of the area of Plaintiff’s accident, taken from her perspective and recapturing as closely as possible the conditions existing at the time thereof, reveal that the red-striped curb and the step down to the alleyway surface were plainly visible to Plaintiff from at least ten feet away as she walked toward them, and nothing prevented her from recognizing them. (UMF 28, 29.)

    Moreover, the court has reviewed the photos of the curb submitted by Defendant and finds the “photographs prima facie established the obviousness” of the condition. (Martinez, 121 Cal.App.4th at p. 1184; Mot. Brault Decl. Exhs. B-I.) The curb and red stripe appear obvious to anyone walking out of the hotel to the area Plaintiff was walking at the time of the incident.

    Plaintiff, in opposition, contends the area where Plaintiff fell was not open and obvious. First, Plaintiff contends the curb was a dangerous condition, and such a curb is uncommon in pedestrian means of egress such that a pedestrian would not expect. (Opp. UMF 32.) However, whether the curb constitutes a dangerous condition or would be expected in a pedestrian means of egress are not material as to whether the curb is reasonably obvious to a person walking from the hotel to the area Plaintiff tripped. Plaintiff’s photos similarly show the red stripe on the curb is visible exiting Defendant’s hotel. (Opp. Avrit Decl. Exh. B.)

    Second, Plaintiff asserts that according to sun data for the date and time of the incident, there would have been shadows obscuring the condition making the curb difficult to perceive. Plaintiff, however, does not submit any evidence that there were in fact any shadows obscuring her vision of the curb. Furthermore, the court has reviewed the surveillance footage of the incident and notes what while there appear to be some shadows on the walkway near the property, there are no shadows in the area of the incident.

    Third, although Plaintiff argues the red paint was insufficient to warn of the hazard, and yellow paint is used to caution pedestrians of a hazard, the fact the curb was red does not mean that the red stripe did not act as a warning of the height differential between the curb and alleyway. By its nature, the red stripe calls attention to the area, and thus warns pedestrians of some potential hazard. Moreover, Plaintiff does not submit any evidence suggesting that the fact the curb had a red stripe instead of yellow made the alleged hazard less obvious to her. Finally, while Plaintiff contends the curb violated industry stands and was illegally constructed, Plaintiff fails to show this evidence is relevant as to whether the curb was open and obvious. Similarly, evidence of a prior incident at nighttime does not show the hazard was not open and obvious at the time of the subject incident.

    “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 unspoken but operative principle […] is foreseeability: it is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger … , may lead to the legal conclusion that the defendant ‘owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ ”

    (Id. at 121 [emphasis added].)

    In Osborn v. Mission Ready Mix, the plaintiff was required to walk across rubble consisting of dirt mixed with broken pieces of concrete carrying a heavy hose in order to load his truck and fell while doing so. (224 Cal. App. 3d at 109-110.) As a result, the plaintiff's job duties necessitated that he expose himself to the dangerous condition on the defendant's property. (See Id.) The Court noted that although the subject condition may have been obvious and negated the duty to warn, there may still have been a duty to remedy the condition if it was foreseeable that the condition might cause injury despite its obvious nature. (Id. at 119-20.) “Thus, 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 (for example, 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.)

    Unlike in Osborn, where the plaintiff was required to expose himself to the dangerous condition as part of his job duties, in this case, Plaintiff does not allege any facts showing she was required to encounter the alleged dangerous condition, or that it was necessary for Plaintiff to cross the alleyway in the location she chose to cross it. (See UMF 31.) Based on the surveillance video submitted by the parties, it appears Plaintiff could have chosen to walk further left to the walkway where the curb was not present to avoid the condition and then cross the alleyway, but instead Plaintiff chose to wak straight where the curb was located. Therefore, there is no showing that it was foreseeable an injury would occur despite the curb being open and obvious, as Plaintiff was not required to encounter the condition to exit Defendant’s property and cross the alleyway.

    Based on the foregoing, Plaintiffs fails to raise a triable issue of fact regarding any duty to warn by Defendant.

    Defendant’s motion for summary judgment is granted.

    Moving Defendant is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

    Dated this 26th day of April, 2021

Hon. Thomas D. Long

Judge of the Superior Court


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