Filed 12/17/13 Fengier v. Fredericka Manor Care Center CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                                  DIVISION ONE
                                           STATE OF CALIFORNIA


DAWN FENGIER,                                                       D062723
         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00093658-
                                                                     CU-PO-CTL)
FREDERICKA MANOR CARE CENTER,
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

         William C. Matthews for Plaintiff and Appellant.

         Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Arezoo Jamshidi, George E.

Nowotny, Kevin L. Eng, and Sean E. Wachtel, for Defendant and Respondent.

         Plaintiff and appellant Dawn Fengier sued defendant and respondent Fredericka

Manor Care Center (Care Center) for personal injuries suffered when she, as an employee

of an independent contractor, visited Care Center's premises to test fire alarm equipment

and injured her shoulder while attempting to do so. Fengier's complaint asserted causes

of action for negligence and premises liability.
          Following discovery and motion proceedings, the trial court granted summary

judgment in favor of Care Center on the ground that, as a matter of law, Fengier could

not establish that it breached a duty of care to her. (Code Civ. Proc., § 437c; all further

statutory references are to the Code of Civil Procedure unless noted.) On the admissible

evidence, the court determined that the alleged dangerous condition, the cluttered

condition of a service room where the inspection was conducted, was open and obvious

in nature, and Care Center had not increased any risk in those conditions through

anything that it did or did not do. (See Danieley v. Goldmine Ski Associates Inc. (1990)

218 Cal.App.3d 111, 121-122 (Danieley).)

          On appeal, Fengier contends the trial court erred in granting the motion because

the record contains evidence sufficient to raise triable issues of material fact or

evidentiary presumptions about negligence, statutory standards, comparative negligence,

or public policy reasons for imposing liability. She no longer pursues a theory of

actionable failure to warn, nor does she argue negligence per se as a separate cause of

action.

          On the existing state of the pleadings and evidence, we disagree with Fengier's

remaining claims for the existence of duty and breach, and affirm the summary judgment.

                     FACTUAL AND PROCEDURAL BACKGROUND

          Before July 2009, Fengier was employed by Systems Specialist (not a party here)

to perform the function of inspecting fire alarm systems, including the one located at

Care Center. In doing so, she had frequently encountered obstructions in the Care Center

service or mechanical room in which its fire alarm system control panel was located. She

                                               2
normally called the maintenance staff at the Care Center to remove the obstacles, and

they did so. When she was accompanied by an associate, they sometimes moved

obstacles themselves, without difficulty, including a hospital bed stored there. Her

inspection reports sometimes stated that the room was full of obstructions which needed

to be removed.

       On July 10, 2009, Fengier and her coworker, a strong adult male, arrived for an

inspection and were told that the mechanical room was clean, but they discovered it was

full of furniture and medical equipment, including a hospital bed. Fengier decided that

they should move the obstacles to create a path to the fire alarm control panel, and they

attempted to roll the bed to one side. The bed was heavy and stayed in place, and when

she persisted, she heard a pop in her shoulder, which turned out to be an injury requiring

surgery. She then told the maintenance people that the room was not cleaned out and was

a mess, but the staff people just walked away.

       In Fengier's complaint, she alleged the defendant's failure to keep the service room

in an easily navigable condition resulted in a breach of its duty to maintain property that

was free of hazards, such as obstacles in front of the electrical panel. She alleged that she

was injured while performing her official duties, and the placement of stored objects in

the inspection room resulted in physical labor atypical of those duties.

       Care Center answered Fengier's complaint and moved for summary judgment,

arguing Fengier could not establish that the alleged dangerous condition amounted to a

breach of any duty owed to her, because she was on actual notice of the condition, which

was open and obvious. Care Center relied on Fengier's deposition, in which she

                                             3
acknowledged she could see the hospital bed that was in the way, and she understood it

was too heavy for her to lift up, but she attempted to move it anyway. Accordingly, Care

Center argued any danger was so obvious that a person could reasonably be expected to

see it, and she could not prove there was any duty relating to any existing concealed or

latent dangerous condition of property.

       Fengier opposed the summary judgment motion, contending that Care Center's

evidence did not establish, as a matter of law, that it had satisfied its duty to properly

warn visitors of the hazardous condition posed by the presence of the bed in the

inspection area, or to provide a safe condition of property. She submitted her own and a

fellow employee's declaration, stating they routinely had to move obstructions in the

mechanical room, and Fengier opined she had acted reasonably in moving the bed, since

she and her colleagues had been able to do so several times in the past without any

problem.

       In her opposition, Fengier also generally raised statutory arguments that an

employer has a duty to provide a safe place for employees. (See, e.g., Lab. Code, § 6400,

subd. (a) ["Every employer shall furnish employment and a place of employment that is

safe and healthful for the employees therein."]; Lab. Code, § 6304.) She also argued that

Care Center owed a heightened duty to abide by the California Fire Code, to ensure that

the area surrounding electrical service equipment should be kept clear, and that Care




                                               4
Center's own fire prevention policy warns that its employees should be aware of the

problems of cluttered rooms and hallways.1

       In response to Fengier's opposition, Care Center filed reply papers objecting to any

reliance on the Labor Code, since that was an issue not pled in the complaint, and she

was not its employee, but worked for a contractor, and had initiated a workers'

compensation claim. Care Center also reiterated that there was no evidence supporting a

claim of failure to warn. In her deposition, Fengier had admitted that the bed was "too

heavy" for her to pick up, so Care Center argued she could not now say in her declaration

that she thought she had acted "reasonably."

       Care Center filed evidentiary objections to Fengier's declaration, on the grounds

that it contradicted her deposition testimony and she was not qualified to give an opinion

on the reasonableness of her conduct. Regarding the fellow employee's declaration, Care

Center objected that he was not a percipient witness and was not qualified to address the

issues raised by the motion. The trial court sustained these evidentiary objections.2

       After hearing argument, the trial court granted Care Center's motion, finding as a

matter of law that Fengier had not created any triable issues of material fact on the breach



1      Fengier cites to the "California Fire Code," which is found as an appendix to the
California Code of Regulations, as will be further discussed post. (Cal. Code Regs., tit.
24 (appen. consists of 12 parts, including Fire Code; http://www.bsc.ca.gov/codes.aspx
[as of Dec. 13, 2013]).)

2     Normally, we would review the trial court's evidentiary rulings under a standard of
abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694;
Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) However, Fengier has not made any
evidentiary arguments and we need not discuss that portion of the ruling.
                                               5
of any duty of care, since the alleged dangerous condition was open and obvious. Any

issues concerning the Fire Code provisions had been mooted by that ruling. The court

did not find it necessary to rule upon her statutory arguments concerning the Labor Code,

since they were not pled, and she was not an employee of the defendant. Judgment was

entered accordingly and she appealed.

                                       DISCUSSION

       Summary judgment is proper if no triable issue of fact is shown by all the papers

submitted, such that the moving party is entitled to judgment as a matter of law. (Orrick

Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1056-1057.)

Summary judgment rulings are reviewed de novo. (Saelzler v. Advanced Group 400

(2001) 25 Cal.4th 763, 767.) The evidence is viewed in the light most favorable to the

opposing party, and the court resolves any evidentiary doubts or ambiguities in its favor.

(Id. at p. 768.)

       Once the moving party has provided evidentiary submissions that show no

material issues of fact require the process of a trial, the burden shifts to the opponent to

show that a triable issue of one or more material facts exists. (§ 437c, subd. (p)(1);

Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 853.) In opposing a

summary judgment motion, a plaintiff may not rely upon the "mere allegations . . . of its

pleadings" and instead must show by "specific facts" that the requisite triable issues of

material fact are present. (§ 437c, subd. (p)(2); Aguilar, supra, at p. 849.) " 'As with an

appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate



                                              6
error,' " through citations to the record and applicable authorities. (Baines v. Moores

(2009) 172 Cal.App.4th 445, 455.)

                                              I

                               PREMISES LIABILITY LAW

       On appeal, Fengier argues the record contains sufficient evidence to raise triable

issues of material fact on all her remaining negligence issues, concerning the duty of Care

Center as a landowner to exercise reasonable care to maintain its property in a reasonably

safe condition, so as not to expose a visitor to an unreasonable risk of injury. (Barnes v.

Black (1999) 71 Cal.App.4th 1473, 1478 (Barnes); Alcaraz v. Vece (1997) 14 Cal.4th

1149, 1156 (Alcaraz).) A breach of such an established duty is negligence. (Barnes,

supra, at p. 1478; Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371-372.)

       To prove the elements of a negligence cause of action, the plaintiff must show the

defendant owed him or her a duty of care, the defendant breached that duty, and the

breach was a legal cause of plaintiff's injuries. (Merrill v. Navegar, Inc. (2001) 26

Cal.4th 465, 477.) The existence of a duty of care in the particular circumstances of a

case, "being a question of law, is particularly amenable to resolution by summary

judgment." (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465, 472 (Parsons);

Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)

       In deciding the existence and scope of a duty, the courts will not decide whether a

particular injury was reasonably foreseeable in consideration of the particular conduct

alleged. Rather, the courts must evaluate more generally, in light of applicable policy

considerations, whether the condition of property was sufficiently likely to result in the

                                             7
kind of harm suffered. (Parsons, supra, 15 Cal.4th at pp. 465, 476.) These policy

considerations include the extent of the burden to the defendant to be imposed and the

consequences to the community of imposing a duty to remedy such a danger. (Krongos

v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 (Krongos).)

       An illustration of the balancing test is found in Danieley, supra, 218 Cal.App.3d

111, dealing with facts involving a skier on a ski path that was bordered by trees. She

lost control and fell, skidding into a tree, and sued the ski resort property owner. The

court rejected the plaintiff family's assertion that the defendant had a duty to remove that

tree, or that the defendant had so designed, groomed or maintained the ski path as to

create "a hidden trap for anyone falling near the tree." (Id. at p. 125.) "There was no

testimony or other evidence before the trial court about any hidden trap or path." (Ibid.)

The danger was open and obvious, so the court followed the rule that " '. . . the owner of

property, insofar as an invitee is concerned, is not an insurer of safety but must use

reasonable care to keep his premises in a reasonably safe condition and give warning of

latent or concealed perils.' " (Id. at p. 121, quoting Brown v. San Francisco Baseball

Club (1950) 99 Cal.App.2d 484, 486.)

       Under the circumstances disclosed by the current record, which are essentially

undisputed, the existence of a duty of care as alleged is a threshold question of law, to be

decided by the trial or appellate court in consideration of the relevant criteria outlined

above. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Castaneda); Alcaraz, supra,

14 Cal.4th at p. 1162, fn. 4; Barnes, supra, 71 Cal.App.4th at p. 1478.)



                                              8
                                              II

      NO GENERAL DUTY TO REMEDIATE OPEN AND OBVIOUS CONDITION

                                 A. Applicable Principles

       Property owners have a general duty to keep their premises in a reasonably safe

condition and to warn those coming onto the property of latent or concealed perils.

(Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590.) Where,

however, a "danger is so obvious that a person could reasonably be expected to see it, the

condition itself serves as a warning" and the property owner has no duty to warn of the

condition. (Krongos, supra, 7 Cal.App.4th 387, 393.) Fengier concedes this is not a duty

to warn case.

       However, Fengier continues to argue that even without a duty to warn, these

circumstances nevertheless justify charging Care Center with a duty to have remedied the

alleged dangerous condition, and some triable issues remain on breach of such a duty.

"[U]nless there is a breach of duty, there can be no tort liability." (Osborn v. Mission

Ready Mix (1990) 224 Cal.App.3d 104, 121-122 (Osborn).) A ruling on the existence of

a particular duty "depends upon various policy considerations, the most important of

which is the foreseeability of injury to another. [Citation.] 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 (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, if the breach of duty was a

proximate cause of any injury." (Id. at p. 122; italics added and omitted.)

                                              9
       In Osborn, the court further explained that for purposes of duty analysis,

evaluating foreseeability requires an acknowledgement that "even an obvious danger may

cause injury." (Osborn, supra, 224 Cal.App.3d at p. 121.) In some instances, a person

might foreseeably choose to encounter an obvious danger, if there is a practical necessity

for encountering the danger and the apparent risk involved is not great. Under such

circumstances, it may be appropriate for the courts to enforce a duty to remedy such

dangerous conditions. The courts will consider the foreseeability of injury "along with

various other policy considerations such as the extent of the burden to the defendant and

consequences to the community," and in some cases, this " '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.' " ' " (Ibid.; see Donohue v. San Francisco Housing Authority

(1993) 16 Cal.App.4th 658, 665 (Donohue) ["while a readily apparent danger may relieve

the property owner of a duty to warn, it no longer necessarily absolves him of a duty to

remedy that condition;" italics omitted]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 461.)

       In Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184-

1185 (Martinez), the plaintiff was injured when she slipped on the defendant's wet

sidewalk, which provided principal access to a public office building. The trial court

granted a defense summary judgment motion, but was reversed on appeal, because the

key facts on duty that had been presented remained in conflict (e.g., the source of water

spilling onto defendant's property), and thus the question of foreseeability and duty could

not yet be resolved as a matter of law: "The only facts defendant presented bearing on

                                            10
foreseeability were a series of photographs of the distinctly wet if not puddled end and

apron of the driveway. Once again, the facts before the trial court and this court did not

warrant a conclusion that defendant neither possessed nor breached a duty of care in this

connection." (Id. at p. 1185.)

                                        B. Analysis

       Here, it is not disputed that Care Center's general duty to exercise ordinary care to

maintain its premises in a reasonably safe condition did not include any duty to warn

Fengier about the obvious presence of the bed in the mechanical room. We conclude

Care Center showed that its duties did not include a specific duty to remedy the obvious

condition of property in the mechanical room, such as the obvious presence of the bed.

First, there was nothing illegal about storing business-related items (a hospital bed) in the

mechanical room. The record establishes that Fengier was not required to complete her

inspection when she was unable to freely access the electrical control panel; instead, it

was her practice, when working on her own, to have Care Center's maintenance staff

move the obstructions. When she was accompanied by a coworker, she sometimes

assisted the coworker in moving the obstructing items, but she was not required by Care

Center to do so. She reported the obstructions in her inspection notes. On this record,

she cannot show that she was brought under a "necessity" to confront a dangerous

condition, such as the plaintiffs in Osborn, supra, 224 Cal.App.3d 104, and Martinez,

supra, 121 Cal.App.4th 1179, were able to allege. Rather, she could choose not to

complete the inspection.



                                             11
       Next, Fengier cannot establish that Care Center had a heightened duty, as an

employer, to provide her with consistently unobstructed premises simply because she was

a business visitor conducting her work for another employer. Care Center took other

measures, such as making its maintenance staff available to provide access to the fire

alarm control panel, to allow her to complete her work. We cannot say as a matter of law

that instead, a heightened duty existed to allow continuous, unobstructed access, under

the circumstances shown.

       Care Center sufficiently established through its moving papers that it did not

breach its duty to use ordinary care in the management of the premises. Accordingly, the

burden of persuasion was properly shifted to Fengier to demonstrate one or more triable

issues of material fact on the existence of Care Center's negligence. We next examine

Fengier's opposition to determine if she successfully raised any triable issues of material

fact to preclude a grant of summary judgment.

       Fengier mainly contends that her admission that she knew the hospital bed was too

heavy to lift does not define the hazard that it presented as "open and obvious," since she

was trying to roll it, not lift it, and had been able to do so safely before. She claims she

did not create her own hazard, but encountered one against which Care Center should

have been able to protect her, but instead, it provided an unsafe workplace for her to visit.

       In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-675, the Supreme Court

restricted this type of potential liability: A landowner/hirer can be held liable to a

contractor's employee, even if it does not retain control over the work, only if "(1) it

knows or reasonably should know of a concealed, preexisting hazardous condition on its

                                              12
premises; (2) the contractor does not know and could not reasonably ascertain the

condition; and (3) the landowner fails to warn the contractor." If, instead, the

independent contractor itself creates a harmful hazard, its employee cannot recover in

negligence from the landowner/hirer. (Id. at p. 675, fn. 3.) Here, there was no such

concealed condition, and Fengier knowingly chose to encounter the hazard, although she

was not required to do so. (See Donohue, supra, 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. . . . [T]his type of assumption of the

risk has now been merged into comparative negligence."; italics omitted].) On this

record, nothing that Care Center did or did not do increased the risk posed to Fengier, as

a visitor, by the open and obvious condition of a heavy hospital bed nearby the inspection

area.

        To redefine the scope of the duty to be imposed, Fengier relies on Labor Code

section 6304.5, which states the Legislature's intent that occupational safety and health

standards and orders that are applicable to proceedings against employers, for the

exclusive purpose of maintaining and enforcing employee safety, are nevertheless subject

to judicial notice and negligence per se rules. (Evid. Code, §§ 452, 669; see Elsner v.

Uveges (2004) 34 Cal.4th 915, 928 [amended language of Labor Code section 6304.5

indicates that Cal-OSHA provisions, like other statutes or regulations, may be admissible

for establishing duties of care in negligence actions]; see also Gravelin v. Satterfield

                                             13
(2011) 200 Cal.App.4th 1209, 1218-1219 [on issue of whether cited regulation was

designed to prevent a particular harm].)

       Based on these rules, Fengier contends the nature of her job required her to

proceed with the fire alarm inspection, and public policy and regulations should support

the adequate performance of such a function. "The duty analysis . . . requires the court in

each case (whether trial or appellate) to identify the specific action or actions the plaintiff

claims the defendant had a duty to undertake. 'Only after the scope of the duty under

consideration is defined may a court meaningfully undertake the balancing analysis of the

risks and burdens present in a given case to determine whether the specific obligations

should or should not be imposed on the landlord.' [Citation.]" (Castaneda, 41 Cal.4th at

p. 1214, quoting Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269,

280.) On this record, in which no Labor Code issues were presented in the pleadings, this

balancing test and these public policy concerns have not been successfully invoked by a

statutory definition of the scope of the duty under consideration. The facts otherwise

proven sufficiently establish the nature of the risk encountered by Fengier.

       Once it can properly be determined that such a duty to remedy a condition of

property must be imposed, the obviousness of the danger will become relevant on the

issue of the injured person's comparative negligence. (Krongos, supra, 7 Cal.App.4th at

p. 393.) Here, however, there is no occasion to address the issue of comparative

negligence, because there is no foundation in the record for imposing a duty on Care

Center to remedy this open and obvious condition of property. (Danieley, supra, 218

Cal.App.3d 111, 121 [an owner of property is not an insurer of safety but must use

                                              14
reasonable care to keep the premises in a reasonably safe condition and give warning of

latent or concealed perils].)

                                              III

                 NO ESTABLISHED BREACH OF ESTABLISHED DUTY

       Although the scope of a defendant's duty to keep the premises in a reasonably safe

condition is a legal question for the court, "the trier of fact is to decide whether a breach

of that duty caused plaintiff's alleged injuries . . . ." (Alcaraz, supra, 14 Cal.4th 1149,

1171 (conc. opn. of J. Mosk).) A determination of breach depends on the facts and

circumstances of the particular case. (Beck v. Kessler (1965) 235 Cal.App.2d 331, 336.)

       In its ruling, the trial court combined the duty and breach questions, concluding

that the record did not support any conclusion that Care Center breached a duty of care to

the plaintiff, since the alleged dangerous condition was open and obvious. Even

assuming this court could have concluded such a duty to remedy had been created, we

would still find no sufficient evidence was presented to justify sending the case to a trier

of fact on whether a breach of a duty caused these alleged injuries. (See Alcaraz, supra,

14 Cal.4th 1149, 1171 (conc. opn. of J. Mosk).) We explain.

       Fengier contends that evidentiary presumptions on the issue of breach of duty

should arise from the text of the California Fire Code. (Cal. Code Regs., tit. 24, § 605,

"Electrical Equipment, Wiring and Hazards" (with stated exceptions).) In particular,

Fengier cites section 605.3, which defines "Working space and clearance": "A working

space of not less than 30 inches (762 mm) in width, 36 inches (914 mm) in depth and 78

inches (1981 mm) in height shall be provided in front of electrical service equipment.

                                              15
Where the electrical service equipment is wider than 30 inches (762 mm), the working

space shall not be less than the width of the equipment. No storage of any materials shall

be located within the designated working space."

       There are several problems with Fengier's argument, and with her related

argument about the Labor Code standards applicable to a place of employment. (Lab.

Code, § 6400 [requiring safe employment premises].) Without the establishment of an

alleged specific duty toward the plaintiff, evidentiary issues about any breach of such

duty cannot be addressed. There is no factual support for the application of the Fire Code

to these facts, with respect to the dimensions of the mechanical room area or access near

the electrical control panel. Similarly, no evidentiary presumptions on the issue of breach

of duty may arise from the cited sections of the Labor Code, since the record establishes

that there was no employment status here, except that Fengier's employer was an

independent contractor.

       In any case, we review only the trial court's ruling, and not its reasons. (Davey v.

Southern Pacific Co. (1897) 116 Cal. 325, 329.) Therefore, a judgment correct in theory

will be affirmed, even though the trial court's reasoning may have been erroneous.

(Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) As explained

above, the preliminary issues on duty may properly be determined as a matter of law, in

favor of Care Center. Nor, under the facts and circumstances of the particular case, does

the record support any conclusion that Care Center breached such a duty of care to

Fengier, regarding the maintenance or remediation of any alleged dangerous, open and

obvious condition.

                                             16
                                 DISPOSITION

    The judgment is affirmed. Care Center to recover costs on appeal.




                                                            HUFFMAN, Acting P. J.

WE CONCUR:



                   AARON, J.


                     IRION, J.




                                       17
