Jennifer Kenney v. Old Mission Santa Barbara, et al.

Case Number

22CV03340

Case Type

Hearing Date / Time

Mon, 01/27/2025 - 10:00

Nature of Proceedings

Defendant’s Motion For Summary Judgment

Tentative Ruling

Jennifer Kenney v. Old Mission Santa Barbara, et al.        

Case No. 22CV03340

           

Hearing Date: January 27, 2025                                                        

HEARING:              Defendant’s Motion For Summary Judgment

                                   

ATTORNEYS:        For Plaintiff Jennifer Kenney: Steven Ross, Downtown LA Law Group

                             For Defendant Old Mission Santa Barbara: Craig A. Roeb, Robert L. Panza, Dana M. Enyart, Chapman Glucksman Dean Roeb, a Professional Corporation

TENTATIVE RULING:

The motion of defendant Old Mission Santa Barbara for summary judgment is denied.

Background:

On August 30, 2022, plaintiff Jennifer Kenney (Kenney) filed a complaint alleging two causes of action for negligence and premises liability against defendants Franciscan Friars of California, Inc. (the Friars) and Old Mission Santa Barbara (the Mission) (collectively, defendants). As alleged in the complaint, on September 1, 2020, Kenney was walking within the parking lot of defendants’ premises located at 2201 Laguna Street in Santa Barbara, California (the Property) when, suddenly and without warning, an automated gate closed on Kenney’s person, causing Kenney to sustain severe injuries. (Compl., ¶¶ GN-1 & Prem.L-1.)

On September 26, 2022, defendants answered the complaint, generally denying its allegations and asserting sixteen affirmative defenses.

On June 15, 2023, the Court entered a Minute Order deeming the cross-complaint filed by defendants on May 12, 2023, valid. In that cross-complaint (the cross-complaint), defendants allege five causes of action for indemnity, contribution, apportionment, declaratory relief, and express indemnity against cross-defendant Kelcole Manufacturing Inc. doing business as Consolidated Overhead Door & Gate (Kelcole).

Kelcole answered the cross-complaint on July 13, 2023, generally denying its allegations and asserting fifteen affirmative defenses.

On January 23, 2024, Kenney dismissed the action as to the Friars only, without prejudice.

The Friars and the Mission each separately dismissed their cross-complaint against Kelcole on, respectively, April 2, 2024, and October 31, 2024.

On January 21, 2025, Kenney filed an amendment to the complaint substituting Kelcole for the defendant designated in the complaint as Doe 1.

The motion of the Mission for summary judgment:

On October 22, 2024, the Mission filed a motion for summary judgment on the grounds that the gate described in the complaint was in an open and obvious condition at the time Kenney sustained her injuries such that the Mission neither owed nor breached a duty to Kenney. The motion is opposed by Kenney

It is undisputed by the parties that the Mission is a corporation that operates the Historic Old Mission of Santa Barbara located at the Property. (Moving & Opposing [“Opp.”] Sep. Stmt., ¶ 1 & evidence cited therein.) The Mission’s main entrance is located at the northeast corner of the Property. (Id. at ¶ 2 & evidence cited therein.) The Mission has a visitor’s parking lot (the parking lot) located in front of the Property with two electric rolling gates, one at the entrance and the other at the exit of the parking lot. (Id. at ¶ 3 & evidence cited therein.) The Mission submits a “Google” photograph depicting the Property and the parking lot, which is attached as exhibit 2 to the declaration of Brad Rutledge (Rutledge), an expert retained by the Mission. (Id. at ¶ 4 & evidence cited therein; see also Rutledge Decl., ¶ 3.)

The Mission posted a sign in front of the exit to the parking lot that warned: “PRIVATE PROPERTY CUSTOMER PARKING ONLY”. (Moving & Opp. Sep. Stmt., ¶ 5 & evidence cited therein [not reasonably disputed on this point].) Below that sign, the Mission posted another sign that read “EXIT ONLY.” (Ibid. [same].) The Mission has submitted a “true and accurate copy” of a photograph of the exit gate and the posted signs, which are attached as exhibits 3 and 4 to the Rutledge declaration described above. (Id. at ¶¶ 5-6 [same].)

The automatic rolling gate at the exit of the parking lot, which the Court will refer to as the gate, was installed approximately seven years ago by Kelcole. (Moving & Opp. Sep. Stmt., ¶ 7 & evidence cited therein.) The gate is metal and moves along a track. (Id. at ¶ 9 & evidence cited therein.) When the gate is triggered to close, the closing process takes almost twenty-five seconds at a speed of approximately 1 foot per second. (Id. at ¶ 10 & evidence cited therein.) A true and accurate photograph depicting the exit gate in its open position and the track is included as exhibit 6 to the Rutledge declaration. (Id. at ¶ 11 & evidence cited therein [not reasonably disputed on this point].)

On September 1, 2020, Kenney visited the Mission. (Moving & Opp. Sep. Stmt., ¶ 12 & evidence cited therein [not reasonably disputed on this point].) Kenney walked to the Mission from a hotel at which Kenney had stayed overnight. (Id. at ¶ 13 & evidence cited therein.) In the late afternoon, Kenney approached the exit of the parking lot. (Id. at ¶ 14 & evidence cited therein.) According to Kenney, she followed a “pathway” to enter the parking lot, which was the asphalt leading into the parking lot from the street and which was delineated on its right by a painted white line. (Id. at ¶ 15 & evidence cited therein.) According to Kenney, as she approached this pathway, it was fully open with the rolling gate not visible from the street. (Id. at ¶ 16 & evidence cited therein.) Kenney was looking straight ahead intending to find a bathroom once she entered the Property. (Ibid.)

Kenney attempted to enter the parking lot about a quarter of the way from the left side from where the gate closes. (Moving & Opp. Sep. Stmt., ¶ 17 & evidence cited therein.) As she walked through this location or gateway, Kenney alleges that she was “suddenly” struck on the right side of her head and body, pushing her to the left. (Id. at ¶ 18 & evidence cited therein.) Kenny testified that she was three quarters or 75 percent of the way from the right side of the gateway at the time Kenney was struck by the gate. (Ibid.) After the gate made contact with Kenney, Kenney alleges it pushed her all the way to the wall to Kenney’s left, wedging her against that wall. (Id. at ¶ 19 & evidence cited therein.)

As a result of the incident described above, Kenney claims she sustained physical and emotional injuries. (Moving & Opp. Sep. Stmt., ¶ 20 & evidence cited therein.) Kenney never looked to her right before the incident. (Id. at ¶ 24 & evidence cited therein [same].) Kenney contends that she did not hear the gate closing and did not observe the gate before or until it made contact. (Id. at ¶¶ 21-22 & evidence cited therein [not reasonably disputed on these points].)

The above summary is not intended to be exhaustive, and the Court has considered all admissible evidence submitted in support of and in opposition to the present motion.

Analysis:

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “[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.” (Id. at p. 850.) Relevant here, a defendant moving for summary judgment meets its burden if that defendant “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 or cross-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); Aguilar, supra, 25 Cal.4th at p. 850.)

“The pleadings determine the issues to be addressed by a summary judgment motion.” (Arce v. The Ensign Group, Inc. (2023) 96 Cal.App.5th 622, 628.) In addition, though the court considers all admissible evidence offered by the parties in connection with the motion, “any evidentiary doubts or ambiguities” are resolved in favor of the party opposing the motion. (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1293; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

The parties here do not dispute that the theories of liability for negligence and premises liability alleged in the complaint are factually predicated on the presence of the gate at the Property which Kenney alleges was in a dangerous, defective, and unsafe condition. (Compl., ¶¶ GN-1.) The parties also do not appear to dispute that the theories of liability alleged in the complaint are premised on what Kenney alleges constitutes a breach of duty by the Mission to maintain the Property and the gate in a safe condition, and to properly warn of the dangerous condition of the gate. (Ibid.) The Court will therefore make its determination as to “whether facts have been adduced … which present triable issues of fact” in light of these allegations. (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380.)

“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. [Citation.] The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. [Citations.]” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

The Mission does not appear to dispute for present purposes that the Property on which the gate is located is in the possession and control of the Mission. “California law requires landowners to maintain land in their possession and control in a reasonably safe condition.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 (Jones).) The Mission also does not appear to contend that it owes a duty of care which is different in degree from “a generic duty owed to all persons on the property based on the reasonable foreseeability of harm to them.” (Silva v. Union Pacific R.R. Co. (2000) 85 Cal.App.4th 1024, 1028.)

The Mission contends that because the gate and its track were each plainly visible to Kenney, they were in an open and obvious condition at the time of the incident. The Mission further contends that Kenney had “clear warning” of the potential for encountering the gate and could be reasonably expected to see it. The Mission also asserts that Kenney chose to ignore the signs further described above, which warn visitors such as Kenney that they were entering the exit of a parking lot. For these reasons, the Mission argues, it was under no duty to remedy or warn Kenney of the existence of the gate.

“ ‘Whether a duty should be imposed on a defendant [in a premises liability action] depends on a variety of policy considerations, known as the Rowland factors.’ [Citations.] The ‘most important’ of these considerations or factors is ‘the foreseeability of injury to another.’ [Citations.]  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.’ [Citations.] ‘ “Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.” ’ [Citation.]” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 145 (Nicoletti), original italics; see also Rowland v. Christian (1968) 69 Cal.2d 108, 112-113.)

“[A]n accident on a landowner’s property does not necessarily create premises liability.” (Nicoletti, supra, 97 Cal.App.5th at p. 145.) “[A] generally recognized exception is that landowners have no duty to warn of open and obvious dangers on their property because such dangers serve as warnings themselves.” (Jones, supra, 39 Cal.App.5th at pp. 1207-1208; see also Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 (Jacobs) [noting that foreseeability is typically absent when the danger is open and obvious].) Under circumstances where a danger is “so obvious that a person could be reasonably expected to see it”, the owner or possessor of the land “is under no further duty to remedy or warn of the condition” and is “entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393; Jacobs, supra, 14 Cal.App.5th at p. 447.)

Though the Mission is not the insurer of Kenney’s safety, it must “exercise ordinary care by making reasonable inspections of the premises to ascertain whether any dangerous conditions exist on the property.” (Jones, supra, 39 Cal.App.5th at p. 1208.) To the extent a dangerous condition exists on the Property, the Mission is required to exercise the care required of a reasonably prudent person in possession of the Property under the same circumstances. (Ibid. [also noting that a failure to do so “constitutes a breach of duty of care”].) “[T]he obviousness of a condition does not necessarily excuse the potential duty … 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....’ [Citations]” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184, original italics.)

From the undisputed evidence further described above, a reasonable trier of fact could find that the existence of the gate at the exit to the parking lot at the Property was open and obvious. However, in the complaint, Kenney also expressly alleges that the gate was in a dangerous, defective, or unsafe condition. (See Compl., ¶ GN-1.) The Mission offers no reasoned argument showing why the causes of action or theories of liability alleged in the complaint are not factually predicated on an alleged dangerous, defective, or unsafe condition of the gate. The Mission also offers no evidence to establish the condition of the gate at the time of the incident, or to show whether or not the gate was in a dangerous, defective, or unsafe condition notwithstanding whether or not its presence was open and obvious, or whether any defective or unsafe condition of the gate was open and obvious to Kenney.

Moreover, to support her opposition to the motion, Kenney submits the declaration of Alex Zaretskiy (Zaretskiy), who was retained by Kenney as a safety and liability expert to render opinions regarding the incident that occurred on September 1, 2020, when Kenney was struck by the gate while walking in the parking lot, in the direction of a garden Kenney intended to visit. (Zaretskiy Decl., ¶ 4.)

Zaretskiy states that he is a licensed Professional Engineer with a “Civil” designation in the State of California and a Forensic Expert with Aperture, a forensic engineering firm founded in 2019. (Zaretskiy Decl., ¶¶ 2-3.) Zaretskiy’s primary tasks at Aperture are to investigate personal injury incidents, to determine their root cause, and to determine whether reasonably prudent measures could have been undertaken to prevent such incidents from occurring. (Id. at ¶ 3.) Zaretskiy has investigated more than 750 separate incident cases on behalf of both plaintiffs and defendants, which include “dozens” of incidents involving automatic mechanical gate and barrier systems for vehicular and pedestrian applications. (Ibid.)

Zaretskiy acquired a Bachelor of Science degree in Mechanical Engineering from the University of California, Berkeley, in 2010. (Zaretskiy Decl., ¶ 2.) Zaretskiy provides a detailed description of his accreditations, certifications, and memberships in various professional organizations. (Id. at ¶ 4.) A copy of Zaretskiy’s curriculum vitae is also attached to the Zaretskiy declaration as exhibit A, which further describes Zaretskiy’s background, training, and experience. (Id. at ¶ 3 & Exh. A.) Zaretskiy also states that he has reviewed applicable codes, standards, surveillance footage of the incident, and other documents including the parties’ pleadings, discovery responses, and deposition testimony, among other things. (Id. at ¶¶ 5-7.)

Zaretskiy states that on December 11, 2024, he performed an inspection of the gate, which was overseen by the Mission’s retained expert, Brad Rutledge. (Zaretskiy Decl., ¶ 8.) As part of this inspection, Zaretskiy removed the plastic cover over the “All-O-Matic branded gate operator” (the gate operator) which controls the gate, inspected its settings and configuration, and reviewed its information label and installation guide. (Id. at ¶¶ 8-10.) Zaretskiy also conducted tests of the gate’s contact and non-contact “entrapment protection systems”, and reviewed the information label and installation guide for the gate operator. (Ibid.) Zaretskiy noted a series of deficiencies with the gate, its operation, and how those deficiencies contributed to the subject incident. (Id. at ¶ 10.)

Zaretskiy states that the gate operator’s information label identified conformance to “ANSI/UL-325” (UL-325), which provides requirements based on sound engineering principles, research, and field experience, among other things. (Zaretskiy Decl., ¶ 10.) Zaretskiy asserts that, under UL-325, the gate required the utilization of a minimum of two “monitored entrapment protection” devices for each “entrapment zone” which Zaretskiy defines as “a location or point of contact where a person can [sic] become entrapped between a moving gate and a rigid object.” (Id. at ¶ 11.) The entrapment zone at issue here is the edge of the gate and the end-column where the gate closing operation terminated. (Ibid.) Consistent with UL-325, the gate was manufactured with a built-in inherent entrapment protection or “ERD” system, which causes the gate to reverse direction within 2 seconds when it comes into contact with an obstruction, and which must be adjusted every six months by a qualified technician. (Id. at ¶¶ 11-12.)

Zaretskiy states that his own personal testing of the gate during the inspection indicated that an applied force of Zaretskiy’s own personal weight of 225-pounds was not enough to stop the gate’s forward motion, and that the ERD system of the gate, which is the first of two required entrapment protection devices, was not operational. (Zaretskiy Decl., ¶ 12.) Zaretskiy asserts that Kenney’s testimony is consistent with the conditions observed by Zaretskiy, and show that the gate failed to stop upon sensing an obstruction, a condition which Zaretskiy contends has likely existed for 51 months, or since the incident. (Ibid.)

According to Zaretskiy, the improper operation of the ERD system should have been ascertained and corrected with the proper service of the gate as outlined within the installation guidelines. (Zaretskiy Decl., ¶ 13.) Zaretskiy reviewed invoices from Kelcole, which indicate that the installation of the gate was completed by Kelcole in November 2018. (Ibid.) The invoices do not indicate whether the gate was serviced, or which services or maintenance were performed with respect to the gate. (Ibid.) It is the opinion of Zaretskiy that the failure of the ERD system was not coincidental, and that adequate service consistent with the requirements of the gate’s installation guide was not followed by the Mission or Kelcole. (Ibid.) According to Zaretskiy, the location of the incident presented an unsafe condition to patrons of the Mission which could have been readily mitigated by proper and timely maintenance of the gate, and which contributed to the incident at issue in this litigation. (Id. at ¶ 15.)

The Mission does not assert any objections to the information contained in the declaration of Zaretskiy, or to Zaretskiy’s qualifications to provide expert testimony on the subject to which his testimony relates. (See Code Civ. Proc., § 437c, subd. (d); Evid. Code, § 720.) Further, the Court finds that Zaretskiy has sufficiently demonstrated that he is qualified to provide the information and opinions offered in the Zaretskiy declaration. (Ibid.)

Though the Mission contends in a conclusory manner that there exists no certainty that the ERD was not operational on the day Kenney was injured, the Mission offers no evidence or argument to rebut the information offered in the Zaretskiy declaration and further described above. The Mission also offers no information or argument showing whether the gate was or was not in a dangerous condition on the date of the incident, including whether the condition of the ERD system as described in the Zaretskiy declaration does or does not constitute a dangerous condition of the gate, or whether any dangerous condition of the gate was open or obvious. The Mission also offers no information or argument to show why it was or was not required to make a reasonable inspection of the gate or its ERD system, or whether a reasonable inspection would have disclosed the condition of the gate and its ERD system.

In addition, though the parties do not reasonably dispute that Kenney attempted to enter the parking lot at a location that was designated by the Mission as an “exit only”, a reasonable trier of fact could infer from the evidence presented by the Mission that it was foreseeable that pedestrians or vehicles wishing to exit the parking lot would also by necessity encounter the gate. For this additional reason, there exist disputed issues of fact with respect to whether or not it was foreseeable than any dangerous condition of the gate’s ERD system would cause harm of the type alleged in the complaint, notwithstanding whether the existence of the gate itself was obvious such that the Mission was not required to warn visitors of its presence.

The examples provided above are intended to be illustrative but not exhaustive. Notwithstanding whether or not the palpable appearance of the gate or its track at the location of the incident may have provided some warning to Kenney of its existence, the Mission has, for all reasons further discussed above, failed to meet its burden to show that it is entitled to judgment as a matter of law. Alternatively, there exist unresolved factual issues with respect to whether or not the gate was in a dangerous condition as alleged in the complaint, whether any dangerous condition of the gate was open and obvious, whether or not the Mission had a duty to inspect the gate, and whether or not the harm to Kenney was foreseeable for reasons further discussed above, among other things. The Court must, for all reasons discussed above, resolve any evidentiary doubts or ambiguities in Kenney’s favor. As the facts presented here do not permit the Court to resolve the question of duty in Mission’s favor at this stage of the proceedings, the Court will deny the motion.