Filed 3/15/22 Cuellar v. Corona South Hills Community Church CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas D. Long, Judge. Reversed and remanded with directions.

Lustgarten Law and Alfred Lustgarten for Plaintiff and Appellant.

Brockman Quayle Bennett, Robert W. Brockman, Suzana I. Sinatra and Rachel B. Kushner for Defendant and Respondent.

Ron Cuellar sued Corona South Hills Community Church (South Hills) for negligence and premises liability after he tripped and seriously injured himself when walking away from an inflated bounce house set up on the church lawn next to, and partially obstructing, large pipes required by the Burbank Fire Department for possible fire emergencies. The trial court granted South Hills’s motion for summary judgment and entered judgment in its favor, ruling Cuellar had failed to raise a triable issue of fact showing that South Hills had a duty to warn or remedy the open and obvious condition of the pipes or that the danger to Cuellar posed by the pipes was foreseeable under the circumstances. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. Cuellar’s Complaint

In an unverified complaint filed December 11, 2018 Cuellar alleged he was acting as a volunteer youth group leader on August 20, 2017, assigned to monitor children at South Hills.[1] Church staff set up a bounce house on the lawn and, Cuellar alleged, “negligently positioned the ‘bounce house’ in close proximity to large pipes on the lawn which created a dangerous condition.” South Hills was also negligent, Cuellar alleged, by failing to post signs or other warnings concerning the pipes and failing to cordon off the area surrounding the pipes by caution tape, safety cones or other measures. While on the premises, Cuellar turned, hit his right leg on the pipes and fell to the ground, injuring his upper back and right shoulder and arm.

Cuellar alleged causes of action for negligence and premises liability. The complaint sought compensatory damages according to proof.

2. South Hills’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

South Hills on May 26, 2020 moved for summary judgment or, in the alternative, summary adjudication pursuant to Code of Civil Procedure section 437, subdivision (f), contending it owed no duty to Cuellar, the pipes were an open an obvious condition, and there was no nexus between its conduct and Cuellar’s injury.

South Hills’s evidence[2] in support of its motion established there are faded red pipes on the lawn area outside the church. The pipes, a permanent fixture on the church premises, are seven feet long, 20 inches wide and 30 inches at their highest point. South Hills did not install the pipes, which were located on the lawn area when it purchased the site in 2013. The pipes are required by local building and safety codes for emergency use by the Burbank Fire Department; the location of the pipes is governed by the Burbank Municipal Code.

Cuellar regularly attended (every Sunday with a few exceptions) and volunteered at South Hills starting in late 2015 or early 2016 and continuing through the time of his fall in August 2017. He acknowledged he had seen the pipes approximately 20 times prior to the incident.

After services on the morning of August 20, 2017, Cuellar walked out of the church’s main entrance onto the lawn area. As he left the church, Cuellar “saw a bounce house, which was obstructing only a portion of the pipes.” The bounce house was located, at an angle, between the church entrance and the pipes. Cuellar walked over to speak with Derek Altero, a church employee, who was standing near the bounce house on the church side of the pipes. Cuellar walked between Altero and the bounce house and stood next to Altero in front of the pipes. After speaking with Altero, Cuellar turned to leave, did not see the pipes and tripped over them as he walked away from the church and toward the street.[3]

In its memorandum in support of the motion, while conceding the bounce house obstructed a portion of the pipes, South Hills argued the pipes were so conspicuous that it owed no duty to warn of their presence. South Hills additionally argued it was not reasonably foreseeable that someone would trip on such an open and obvious object; it was Cuellar’s failure to exercise reasonable care that caused the accident; and, because the size and location of the pipes were required by local ordinance, Cuellar could not establish South Hills’s actions or inactions were the proximate cause of his injuries.

3. Cuellar’s Opposition to the Motion

With his opposition papers Cuellar submitted several additional material facts. He noted there were no signs, barriers or other warnings regarding the pipes (which South Hills did not dispute). He also explained, as he had in his deposition testimony, that on the day of the incident he did not see the pipes prior to his fall because there were a lot of people on the grass and because he had been speaking to Altero. Cuellar also presented evidence that, subsequent to the date of his accident, South Hills installed an enclosure around the pipes.[4]

In his opposition memorandum Cuellar argued South Hills had negligently created a dangerous condition, with an attendant unreasonable risk of harm, by placing the bounce house near the exposed pipes without covering or fencing off the area around the pipes or warning guests of the hazard with caution tape or orange warning cones.

4. The Order Granting Summary Judgment

The trial court granted South Hills’s motion for summary judgment, ruling Cuellar failed to raise a triable issue of fact showing South Hills had a duty to warn or remedy the open and obvious condition of the pipes or that Cuellar’s harm was foreseeable under the circumstances.

The court found South Hills’s evidence of the obviousness of the pipes, which included photographs of the pipes, and Cuellar’s prior awareness of them was sufficient to shift to Cuellar the burden to raise a triable issue of material fact regarding South Hills’s duty to warn or remedy the purportedly dangerous condition and the foreseeability that Cuellar would fall over the large pipes. The court then rejected Cuellar’s argument concerning placement of the bounce house, stating, “Plaintiff does not provide any evidence to show that the location of the bounce house itself created a foreseeable risk of harm to others, or otherwise cite authority showing South Hills was required to warn people of the hazard or fence [off] the area around the large pipes.” Additionally, after acknowledging case law that a landowner has a responsibility to remedy an open and dangerous condition if it is foreseeable individuals are likely to come into contact with it, the court stated, “Plaintiff does not allege any facts showing he was required to encounter the alleged dangerous condition.”

Judgment was entered in favor of South Hills. Cuellar filed a timely notice of appeal.

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo (Samara v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the evidence in the light most favorable to the nonmoving party (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618), decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)

When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. Alternatively, the defendant may present evidence to “‘show[] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar); accord, Regents of University of California v. Superior Court, supra, 4 Cal.5th at p. 618 [“[a] defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action”]; Code Civ. Proc., § 437c, subd. (p)(2).) “The moving party bears the burden of showing the court that the plaintiff has not established, and cannot reasonably expect to establish, the elements of his or her cause of action.” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705, internal quotation marks omitted; accord, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720; see Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 [“the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’”].)

Once the defendant’s initial burden has been carried, the burden shifts to the plaintiff to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof” at trial. (Aguilar, at p. 850; accord, Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 722.)

2. Governing Law: A Landowner’s Duty of Care

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘“is grounded in the possession of the premises and the attendant right to control and manage the premises”’; accordingly, ‘“mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.”’ [Citation.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; see Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 the Supreme Court reviewed the general landowner liability rules regarding an obvious hazard that apply to individuals who visit the premises: “‘[T]he basic policy of this state set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. . . . The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others’ . . . .

“This formulation is similar to the Restatement Second of Torts, section 343 . . . . ‘A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he [¶] (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and [¶] (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and [¶] (c) fails to exercise reasonable care to protect them against the danger.’

“‘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. [Citation.] However, this is not true in all cases. “t 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.”’” ([i]Kinsman v. Unocal Corp., supra, 37 Cal.4th at pp. 672-673; accord, Gonzalez v. Mathis (2021) 12 Cal.5th 29, 43; Rest.3d Torts, Liability for Physical and Emotional Harm, § 51, com. k, p. 251 [“the fact that a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed, but it does not pretermit the land possessor’s liability”].)[5]

3. South Hills Failed To Carry Its Initial Burden To Demonstrate It Had No Duty To Warn or Correct a Dangerous Condition

Both South Hills in its motion, and the trial court in its ruling granting summary judgment, focused on the conspicuousness of the large red pipes and Cuellar’s awareness of them prior to his fall to conclude South Hills had no duty to warn or remedy the dangerous condition thereby created. However, the basis for Cuellar’s lawsuit was not the location of the pipes themselves, but the placement of the bounce house in close proximity to, and partially obstructing, them.

South Hills’s fundamental misperception of the central allegation of Cuellar’s lawsuit is underscored by its argument that, because it had no role in installing the pipes, there was no causal connection between its conduct and Cuellar’s injuries. Yet South Hills did not contest Cuellar’s allegation that church staff placed the bounce house near the pipes and did not (indeed, could not) argue it had no duty to exercise reasonable care in deciding where to set up the inflatable device. (See Rowland v. Christian (1968) 69 Cal.2d 108, 119 [“[t]he proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others”].) It was that action that Cuellar contends proximately caused his injuries, and it was South Hills’s duties as landowner with respect to that conduct that should have been addressed in its motion for summary judgment.

As discussed, a landowner may be liable for injuries caused by an open and obvious dangerous condition if it is foreseeable as a practical matter that, under the circumstances, individuals will nonetheless encounter it. (Kinsman v. Unocal Corp., supra, 37 Cal.4th at pp. 672-673; Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185, 1184 [reversing summary judgment because trial court’s analysis was incomplete, leading to “a premature conclusion of no duty and therefore no liability”; “the 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. The modern and controlling law on this subject is that ‘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’”]; see Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122; see also CACI No. 1004.)

Here, in its separate statement of undisputed material facts South Hills essentially ignored the bounce house and the role its placement allegedly played in Cuellar’s accident, asserting only that Cuellar saw it when he walked out of the main entrance of the church and walked between the bounce house and Altero when he went to speak to Altero. South Hills presented no evidence Cuellar could not establish the placement of the bounce house near the pipes—even if open and obvious—drew people toward the danger, creating a foreseeable risk of harm to individuals gathered on the church lawn after services to socialize and to watch their children at play and, therefore, a corresponding duty to use reasonable care to remedy the condition or otherwise protect against the harm. By failing to negate this aspect of duty or provide evidence showing Cuellar would be unable to establish it at trial, South Hills did not carry its initial burden on summary judgment.[6]

That Cuellar may have failed to submit evidence showing the location of the bounce house created a foreseeable risk of harm to others, as the trial court ruled, is of no moment. In moving for summary judgment on the ground it owed no duty to Cuellar, it was South Hills’s burden in the first instance to address this aspect of Cuellar’s case. Because South Hills failed to carry its initial burden, summary judgment should have been denied without regard to Cuellar’s opposition papers. (See Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1060 [“[b]ecause Fairbanks did not meet its initial burden, summary judgment was not warranted”]; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534 [if defendant fails to carry its initial burden of showing entitlement to judgment as a matter of law, burden does not shift to plaintiff; and motion is properly denied without regard to plaintiff's opposition].)

DISPOSITION

The judgment is reversed. On remand the trial court is to vacate its order granting the motion for summary judgment and to enter a new order denying the motion. Cuellar is to recover his costs on appeal.

PERLUSS, P. J.

We concur:

FEUER, J.

WISE, J.*

[1] The complaint initially named Westgate Community Bible Church, as successor in interest to South Hills, as the defendant, together with 25 Doe defendants. The complaint was amended on August 14, 2019 to substitute South Hills for Doe 11.

[2] South Hills repeated the same 17 undisputed material facts for each of the six issues separately addressed in its alternative request for summary adjudication. Cuellar agreed 16 of the 17 facts were undisputed and objected to one (that he was not paying attention to the pipes when he turned and tripped) only as “argumentative.” (See fn. 3, below.)

[3] South Hills’s separate statement read, “[W]hen he turned to leave, he did not pay attention to the pipes and tripped on the pipes.” In his response to South Hills’s separate statement Cuellar objected this phrasing was argumentative. The trial court declined to rule on the objection because it was not filed separately from Cuellar’s other papers in opposition to summary judgment, as required by California Rules of Court, rule 3.1354.

[4] South Hills included an objection to this evidence of a subsequent remedial measure in its response to Cuellar’s additional material facts but did not separately file an objection. As it had with Cuellar’s improperly presented evidentiary objection, the trial court declined to rule on South Hills’s objection. (See fn. 2, above.) Nonetheless, in its ruling granting South Hills’s motion for summary judgment, the trial court observed that Evidence Code section 1151 excludes evidence of subsequent remedial measures to prove negligence or other culpable conduct.

[5] The 2012 Restatement Third of Torts questions the continued viability of the rule that landowners generally have no duty to warn of open and obvious dangers: “An entrant who encounters an obviously dangerous condition and who fails to exercise reasonable self-protective care is contributorily negligent. Because of comparative fault, however, the issue of the defendant’s duty and breach must be kept distinct from the question of the plaintiff’s negligence. The rule that land possessors owe no duty with regard to open and obvious dangers sits more comfortably—if not entirely congruently—with the older rule of contributory negligence as a bar to recovery.” (Rest.3d Torts, Liability for Physical and Emotional Harm, § 51, com. k, p. 252; see Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665 [“[T]he ‘obvious danger’ exception to a landowner’s ordinary duty of care is in reality a recharacterization of the former assumption of the risk doctrine, i.e., where the condition is so apparent that the plaintiff must have realized the danger involved, he assumes the risk of injury even if the defendant was negligent. [Citation.] . . . [T]his type of assumption of the risk has now been merged into comparative negligence”].)

[6] At oral argument in this court South Hills asserted a photograph (submitted with its moving papers seeking summary judgment) showed a large open area between the pipes and the bounce house through which Cuellar could have safely walked, evidence, it contends, that shifted the burden to Cuellar to demonstrate a triable issue of fact regarding a foreseeable risk of harm. Even if the photograph were properly considered, although South Hills did not refer to it in its separate statement and did not make this argument in the trial court, the moving papers demonstrated a disputed issue of fact as to whether the photograph accurately depicted the location of the bounce house on the day of the incident, precluding reliance on it to carry South Hills’s initial burden on summary judgment.

In his declaration in support of the motion, David Stewart, one of the church pastors, stated the photograph correctly showed the pipes and the bounce house as they looked on August 20, 2017. However, South Hills’s counsel’s declaration in support of the motion identified the photograph as among those produced in discovery by Cuellar. At his deposition Cuellar explained the location of the bounce house in the photograph was not the same as it had been on August 20, 2017. Describing the difference, Cuellar stated, “The bounce house entrance was closer to the pipes at an angle blocking the back portion of the pipes, the bounce house part.”

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.