Katie Schurmer, et al. v. Isla Vista Owner, LLC, et al

Analysis: Evidentiary Objections

Plaintiffs and IVO make numerous objections to evidence submitted by the other. "In granting or denying a motion for summary judgment or summary adjudication, the Court 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 shall be preserved for appellate review." (Code Civ. Proc., § 437c, subd. (q).)

" 'The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.' " [Citation.]

" 'The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that Courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.' " [Citation.]" (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

As a preliminary statement regarding the objections made by Plaintiffs, and the opposition itself: Throughout the opposing papers, Plaintiffs take issue with the characterization of the subject fence as bright white. The dispute about whether the fence was "bright white" or just "white," is completely immaterial. The photographs speak for themselves.

Plaintiffs' objections Nos. 1, 2, 8, 9, and 10 are overruled. Plaintiffs' objections Nos. 3, 4, 5, 6, and 7 to the characterization of the condition as "open and obvious" constitute a legal conclusion and are sustained.

IVO's objections are all overruled other than IVO's objections Nos. 13, 40, 41, 43, 44, 45, 46, 47, 48, 49, 50, and 51, which are sustained. Most of the sustained objections pertain to statements made in the declaration of Forensic Consultant Brad P. Avrit. To those portions where the objections were sustained, as phrased, Avrit is asserting legal conclusions rather than opinions that he is qualified to render.

"An expert may testify to an opinion " '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (Evid. Code, § 801, subd. (a).) " 'Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.' " (Evid. Code, § 805.) However, an expert is not permitted to give an opinion on questions of law or legal conclusions." (City of Rocklin v. Legacy Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 728.)

It should be noted that IVO's objections themselves demonstrate that there are numerous disputed issues of fact. As just one example, objection No. 18 is to the declaration of Grace Wilson, paragraph 24, where she declares, among other things, that it was too dark for her to visualize the drop off, the nature of the drop off, or how far it was from the fence. In its argument in support of its objection, IVO argues: "Contrary to Wilson's statement photographs show . . . lighting present [and] operational on the buildings . . .." This demonstrates that there is a factual question regarding the adequacy of the lighting, if any, at the time of the incident. Many other examples, such as decedent's level of intoxication, could be given where IVO's arguments demonstrate the existence of factual disputes rather than the absence of them.

Standard on Summary Judgment

A Defendant's motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims.

The Court must determine from the evidence presented 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, subd. (c).) "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.)

"[W]e liberally construe Plaintiff's evidentiary submissions and strictly scrutinize Defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in Plaintiff's favor." (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

"A Defendant ... has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action. Once the Defendant ... has met that burden, the burden shifts to the Plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).)

In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

A triable issue of material fact exists 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. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

Separate Statement

"Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement " 'setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.' "

California Rules of Court, rule 3.1350(d)(2)4 states: " 'The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.' " Under the Rules of Court, " ' "Material facts' " are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.' " (Rule 3.1350(a)(2).)" (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 874-875.)

"The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. " 'The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial Court to hone in on the truly disputed facts.' " [Citation.]" (Beltran v. Hard Rock Hotel Licensing, Inc., supra, 97 Cal.App.5th at page 875.)

"The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party's responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists." (Beltran v. Hard Rock Hotel Licensing, Inc., supra, 97 Cal.App.5th at page 875.)

"Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10-31, 10-32, these documents are 'intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.' " (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

" 'Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!' " [Citation.]" (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.]

Specific undisputed, or not reasonably disputed, facts will be discussed below where appropriate.

Assumption of the Risk

By way of the Notice of Motion, IVO states their first ground for summary judgment as decedent assuming the risk by voluntarily becoming intoxicated by alcohol and marijuana and climbing over a fence that separated the patio from a cliff leading to a 40 to 50 foot drop into the Pacific Ocean. (Notice of Motion, p. 2, ll. 6-9.)

However, nowhere in the body of the motion itself does IVO argue assumption of the risk. As there is no argument, or legal authorities, supporting this defense in the motion, it need not be addressed.

Possession or Control of the Property and Duty of Care

By way of the body of the motion, IVO argues that Plaintiffs' action against IVO is without merit because IVO was not in possession or control over the subject property at the time of the incident. However, this ground for summary judgment is not included in the notice of motion. The notice of motion only sets forth assumption of the risk (as discussed above), and open and obvious hazard.

"Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based." (Code Civ. Proc., § 1010, italics added.) "Section 1010's requirement " 'is for the benefit of the party upon whom the notice is served,' " to make him or her aware of the issues to be raised in the motion. [Citations.]" (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137.)

"Unless leave of Court is obtained, the motion may not be made upon any grounds other than those enumerated in the notice of motion." (Hernandez v. Nat. Dairy Products Co. (1954) 126 Cal.App.2d 490, 493.) Because lack of possession or control of the subject property is not included in the notice of motion, that ground may not be brought in the body of the motion, and it fails.

It fails for the following substantive reasons as well. "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." ' " [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. [Citation.]" (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

"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 of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." (Civ. Code, § 1714, subd. (a).)

Although a dog bite case, rather than the type of injury that exists in the present case, the Court finds the holding in Salinas v. Martin (2008) 166 Cal.App.4th 404 (Salinas) instructive. A landowner " ' " 'has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.' " ' [Citation.]' " [Citation.]" (Salinas, supra, 166 Cal.App.4th at p. 412.)

" 'An exception to the statutory rule of liability for failure to use ordinary care in the management of one's property requires clear support in public policy.' " [Citation.] " ' "In the case of a landowner's liability for injuries to persons on the property, the determination of whether a duty exists, " 'involves the balancing of a number of considerations; the major ones are 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 the 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.' " [Citations.]' [Citation.]' " [Citations.]" (Salinas, supra, 166 Cal.App.4th at p. 412.)

"[W]here a landlord has relinquished control of property to a tenant, a " 'bright line' " rule has developed to moderate the landlord's duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. " ' "Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the Plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition." ' [¶] Limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.' " [Citations.]" (Salinas, supra, 166 Cal.App.4th at p. 412.)

"This is not a case, however, in which the Plaintiff has asserted passive neglect on the part of a landlord for failure to inspect or take security measures to protect third parties from a dangerous condition on a tenant's property. The present action is distinguishable on many decisive levels. First and foremost, respondent was not an absentee landlord with limited access to the property. He did not surrender his possessory interest in the property in any way; he continued to control the premises at least intermittently while the construction project proceeded.

The dog owners were not respondent's tenants who had sole possessory rights associated with the property, but rather temporary invitees who performed landscaping services. And unlike tenants, they were neither vested with exclusive possession of the property nor were entitled to keep their dogs there without express permission granted by respondent. Thus, the essential foundation that underlies the carefully circumscribed duty imposed upon landlords - the restraint upon the landlord's right to engage in intrusive oversight or control of the tenant's use of the property - is absent here." (Salinas, supra, 166 Cal.App.4th at p. 413.)

"Therefore, the cases that decline to impose a duty of care unless a landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, are not dispositive. Under the facts presented in the case before us, we do not merely examine the evidence for proof of respondent's actual knowledge of the vicious nature of the dogs and his ability to prevent the attack, as we would if he was a residential landlord. [Citation.] Instead, we must examine the totality of the factors " 'set forth in Rowland v. Christian (1968) 69 Cal.2d 108,' " that are pertinent to determination of the scope of respondent's duty. [Citations.]" (Salinas, supra, 166 Cal.App.4th at pp. 414 - 415.)

Here, the undisputed, or not reasonably disputed, material facts that are pertinent to the issue of possession, control, and duty of care, include: While IVO did lease out the property, IVO still did maintain at least some degree of control of the subject property.

The evidence that supports this fact includes: (1) IVO's Person Most Knowledgeable, Anthony Jaffe, testified that IVO had control to maintain and improve the subject property, that IVO would maintain the fence that surrounded the patio area in the back, that the property was maintained within one-year prior to the incident, that IVO did construction on the fence by building a new section of guardrail, that IVO painted the guardrail, and that IVO is "always constantly maintaining the properties." (Ex. 12 to Opp., Jaffe Depo, pp. 15-25.) (2) IVO's lease agreement (Exhibit 7 to Opposition) provides that tenants are prohibited from, among other things, making alterations, additions, improvements, decorations or repairs to the premises. (¶ 1.11.) (3) Plaintiff's Separate Statement of Additional Facts (PSS), fact No. 5, states that IVO "had the control to maintain and improve the property."

PSS fact No. 6 states that IVO "remained in control of maintenance to the property including maintaining the fencing in the back patio area." PSS fact No. 7 states that IVO "organized and paid for alterations to the back patio fence at the subject premises within the 12 months prior to September 2, 2023." IVO admits that the facts are undisputed.

There are ample additional facts that establish that IVO maintained some control over the subject property. The question thus becomes whether IVO owed a duty to decedent based on the level of control that IVO retained over the property.

"The existence and scope of a legal duty of care is a question of law for the Court to resolve, not based on the facts of the particular case but " ' "on a more general basis suitable to the formation of a legal rule' to be applied in a broad category of cases.' " (Grotheer, supra, 14 Cal.App.5th at p. 1301; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 773 [122 Cal. Rptr. 3d 313, 248 P.3d 1170] [" '[T]he legal decision that an exception to Civil Code section 1714 is warranted, so that the Defendant owed no duty to the Plaintiff, or owed only a limited duty, is to be made on a more general basis suitable to the formulation of a legal rule, in most cases preserving for the jury the fact-specific question of whether or not the Defendant acted reasonably under the circumstances.' "].)

"Still, there may be triable issues of fact for a jury to determine concerning the question of duty in a particular case. " ' "In conducting its [duty] analysis, the Court may take into account factors . . . such as the overall social impact of imposing a significant precautionary obligation on a class of actors. These cases are properly decided as duty or no-duty cases. [But] [w]hen no such categorical considerations apply and reasonable minds could differ about the competing risks and burdens or the foreseeability of the risks in a specific case . . . Courts should not use duty and no-duty determinations to substitute their evaluation for that of the factfinder." ' " [Citation.]

"Further, whether the Defendant acted reasonably under the circumstances (whether the Defendant was negligent or breached its duty of care to the Plaintiff), and if so whether the Defendant's negligence was a legal cause of the Plaintiff's injury, are factual questions for the jury to resolve unless, " 'under undisputed facts, there is no room for a reasonable difference of opinion.' " (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687, 19 Cal.Rptr.2d 601 [" 'If the circumstances permit a reasonable doubt' " whether the Defendant's conduct violated the standard of care or legally caused the Plaintiff's injury, " 'the doubt must be resolved by the jury as an issue of fact rather than of law by the Court' "].)

"Whether the Defendant was negligent or breached its duty of care to the Plaintiff is often a fact-specific question that asks whether the Defendant " 'acted reasonably under the circumstances.' " [Citation.] In determining whether the Defendant's conduct was reasonable under the circumstance, the jury may consider " 'the likelihood or foreseeability of injury' " to the Plaintiff, and foreseeability may also " 'be relevant to the jury's determination of whether the Defendant's negligence was a proximate or legal cause of the Plaintiff's injury.' " [Citation.]" (Mayes v. La Sierra University (2022) 73 Cal.App.5th 686, 705, fn. 2.)

Here, there are significant factual questions pertaining to competing risks, burdens, and foreseeability that requires the evidence to be presented to a trier of fact. The Court will not use a duty/no-duty determination, for purposes of summary judgment, to subvert the evaluation of the fact finder. By so ruling at this time, the Court renders no opinion as to whether it will eventually find the existence of a duty on the part of IVO as to the decedent.

Open and Obvious

IVO next argues that Plaintiffs' action is barred by the open and obvious doctrine. That doctrine provides: " 'Foreseeability of harm is typically absent when a dangerous condition is open and obvious. [Citation.] ' "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.] 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." [Citation.]" (Montes v. Young Men's Christian Assn. of Glendale, California (2022) 81 Cal.App.5th 1134, 1140.)

"There may be a duty of care owed even where a dangerous condition is open and obvious 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).' " [Citation.] In other words, " 'the obviousness of the condition and its dangerousness . . . 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.' " [Citation.]" (Ibid.)

" ' "[I]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. 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 [citation] may lead to the legal conclusion that the Defendant" ' owed a duty of due care to the person injured. [Citation.]' " [Citation.]" (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 461.)

"Furthermore, after Rowland v. Christian (1968) 69 Cal.2d 108, landowners have not been excused from liability flowing from obvious hazards if injury was foreseeable." (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 598, fn. 11.)

There are numerous facts surrounding both the issue of whether, at the time of the incident, the dangerous condition of the cliff was open and obvious, as well as whether other circumstances existed that reasonably made decedent choose to encounter the dangerous condition. [Note: the Court rejects Plaintiffs' argument that there was a "necessity" for the decedent to climb over the fence because there were no bathrooms available. That argument is, at best, a serious over-reach.]

The facts showing triable issues as to whether the dangerous condition was open and obvious, or that other circumstances existed negating the open and obvious defense, include, but are not limited to: (1) IVO's lease agreement states: "the cliff, and the land in the vicinity of the edge of the cliff is unstable, in a constant state of erosion, and is hard to see, especially at night, as such, the cliff presents a serious hazard to those people who enter onto the Property." (PSS Nos. 22, 23 & Exh. 7.)

Undisputed by IVO. (2) IVO was aware that "many people have fallen off this cliff, causing serious and grave bodily injury." (PSS No. 24 & Exh. 7.) Undisputed by IVO. (3) Decedent arrived at the subject premises around 9:00 to 9:30 p.m. and, by that time, it was dark outside. (PSS No. 32 & Exhs. 1, 2, 3, 4.) Undisputed by IVO. (4) The concert at the premises, that was being attended by decedent, was held on the back patio of the premises which contained a tiled floor and a waist high wooden fence. (PSS No. 33 & Exhs. 1, 2, 3, 4, 6.)

Undisputed by IVO. (5) The ocean side of the waist high wooden fence consisted of unstable tiles approximately five feet to the cliff over the Pacific Ocean. (PSS No. 34 & Exhs. 1, 13, 14, 15.) Not reasonably disputed by IVO, as the evidence clearly establishes the fact stated. (6) The fence was easy to step over. (PSS No. 36 & Exhs. 1, 2.) Not reasonably disputed by IVO, as IVO has not referenced any evidence to the contrary. (7) There were between 50 and 100 people on the patio at the time of the incident. (PSS No. 47 & Exhs. 1, 2, 3, 4, 6.)

Not reasonably disputed by IVO, as IVO has not referenced any evidence to the contrary.

There are numerous other facts, and corresponding evidence, that demonstrate the existence of triable issues of material fact relative to the issue of whether the dangerous cliff was open and obvious on the date and time of the incident. Clearly the lessors of the property were adequately warned of the dangerous condition, but the Court has no evidence that guests, workers, or any other invitees were adequately warned. This is yet another fact that requires the presentation of evidence to a trier of fact.

"[T]he trier of the fact must determine any conflict as to whether or not the danger was obvious to the invitee." (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 36.)

Based on the evidence and argument before it, the Court must deny the motion for summary judgment.

Tentative Ruling: Kevin Gillies v. John Vrtiak Tentative Ruling: Kevin Gillies v. John Vrtiak