Filed 7/25/17 Certified for Publication 8/14/17 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                  DIVISION SIX


JACQUES JACOBS, et al.,                               2d Civil No. B277832
                                                    (Super. Ct. No. 56-2015-
     Plaintiffs and Appellants,                     00463977-CU-PO-VTA)
                                                       (Ventura County)
v.

COLDWELL BANKER
RESIDENTIAL BROKERAGE
COMPANY,

     Defendant and Respondent.


            Defendant Coldwell Banker Residential Brokerage
Company (Coldwell) marketed for sale a vacant, bank-owned
property located in Simi Valley. The property had a backyard
with an empty swimming pool and diving board. While plaintiffs
Jacques Jacobs (Jacques) and his wife, Xenia Jacobs (Xenia),1
were viewing the property as potential buyers, Jacques stepped

       Plaintiffs are referred to by their first names to avoid
        1

confusion. No disrespect is intended.


                                           1
onto the diving board to look over the fence. The diving board
base collapsed and Jacques fell into the empty pool. Plaintiffs
sued Coldwell for negligence and loss of consortium.
              The trial court granted Coldwell‟s motion for
summary judgment. It determined that Coldwell was entitled to
judgment on plaintiffs‟ claim regarding the negligent condition of
the diving board. In opposition to the motion, plaintiffs argued
that they also were claiming that the empty pool was a dangerous
condition. The court rejected this unpled, undisclosed theory of
liability. It also concluded that even if the theory had been pled,
Coldwell could not be held liable for failing to remedy the
dangerous condition of the empty pool because Jacques‟s accident
was not reasonably foreseeable. We affirm for the same reasons.
               FACTS AND PROCEDURAL HISTORY
              Before listing the subject property for sale, Dianne
Garnett, a licensed real estate agent, visually inspected the
property. After examining each room in the house, Garnett spent
20 to 30 minutes inspecting the backyard, including the diving
board. She did not observe any breaks, cracks or other visible
damage in the diving board. The only dangerous condition she
observed was the empty swimming pool.
              Garnett retained Clearflo Pools (Clearflo) to inspect
the swimming pool and related equipment and to provide her
with a report detailing any necessary repairs. Clearflo‟s post-
inspection report did not identify any concerns about the diving
board.
              Before the property was viewed by any potential
buyers, Garnett prepared an MLS listing for the property. The
listing stated: “[P]lease use CAUTION around the empty pool.”




                                2
             Jacques was interested in purchasing the property as
an investment. On August 30, 2014, he and Xenia met their real
estate agent to view the property. After looking around the
house, they all went outside and walked up to a five-foot-tall
wrought iron fence which enclosed the swimming pool area. The
agent unlatched the gate, and they entered the pool area.
             Jacques, a licensed contractor who regularly
performs tile work in and around swimming pools, noticed that
the backyard swimming pool was empty. Jacques knew he
should stay away from the edge of the empty pool because “it
would hurt if [he] fell in.”
             Jacques wanted to see over the fence to assess
whether someone from the adjacent road could jump over the
fence into the backyard. To get a better view, he stood on the
base of the diving board. After standing on the diving board for
10 to 30 seconds, Jacques felt the board break loose from its base.
The board slid forward and Jacques fell into the empty swimming
pool, sustaining serious injuries.
             Jacques sued Coldwell and the bank that owned the
property for negligence; Xenia sued for loss of consortium. The
complaint alleged that defendants “negligently, carelessly,
recklessly, unlawfully and with gross negligence managed,
owned, operated, leased, possessed, secured, maintained and
controlled said property, and were otherwise negligent and
reckless and conducted themselves in a negligent manner,
thereby directly and legally causing the injuries and damages to
the Plaintiff [Jacques] as enumerated herein. Among other
things, Defendants, and each of them, failed to take measures to
make the area where Plaintiff fell reasonably safe, repair the
diving board and all accompanying attachments, protect Plaintiff




                                3
from the diving board, remove the diving board, and failed to
warn Plaintiff that the diving board and all accompanying
attachments were in poor condition.”
              Coldwell moved for summary judgment on the
grounds that (1) there was no evidence it had breached its duty of
care to a prospective purchaser, (2) there was no evidence
Coldwell had actual or constructive notice of the allegedly
dangerous condition of the diving board, (3) there was no
evidence that Coldwell caused Jacques‟s injuries; and (4) Xenia‟s
claim for loss of consortium was derivative of the negligence
claim, which lacked merit.
              Regarding the second ground, Coldwell noted that
plaintiffs‟ discovery responses provided no facts demonstrating
actual or constructive notice of any defect in the diving board.
Coldwell pointed to the undisputed evidence that its agent had
seen no defects when she inspected the diving board, and that
Clearflo had identified no concerns with the diving board when
making its inspection. Coldwell also cited Jacques‟s own
testimony that he looked at the diving board and thought it was
in better condition than his own diving board.
              Plaintiffs‟ opposition to the motion did not dispute
that Coldwell had no notice of any defect in the diving board.
Plaintiffs argued instead that Coldwell‟s motion had not
addressed their “allegations that the empty swimming pool was a
dangerous condition.”
              In reply, Coldwell asserted that plaintiffs could not
defeat their motion based on a theory of liability that was not
alleged in the complaint or disclosed during discovery. It further
argued that safety measures were in place and that there was no
evidence that Coldwell possessed any greater knowledge than




                                 4
Jacques regarding the danger presented by the empty pool.
Coldwell attached to its reply additional exhibits responding to
plaintiffs‟ empty pool theory. Plaintiffs did not object to the
additional evidence.
             Following a hearing, the trial court granted summary
judgment in Coldwell‟s favor. It determined the evidence was
undisputed that Coldwell had no actual or constructive notice
that the diving board was defective. Regarding the empty pool
theory of liability, the court concluded that plaintiffs had not
alleged that theory, either in their complaint or in their discovery
responses, and that the circumstances justified Coldwell‟s
submission of reply evidence addressing that theory. Based on
all the evidence, the court ruled that Coldwell was entitled to
summary judgment on Jacques‟s negligence claim, as well as on
Xenia‟s derivative loss of consortium claim. Plaintiffs appeal.
                             DISCUSSION
                          Standard of Review
             Summary judgment is appropriate “if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The
defendant bears the initial burden of showing that the plaintiff
cannot establish one or more elements of the cause of action, or
that there is an affirmative defense to it. (§ 437c, subd. (o);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If
the defendant makes one of the required showings, the burden
shifts to the plaintiff to establish a triable issue of material fact.
(Aguilar, at p. 850.)
             Our review is de novo. (Knapp v. Doherty (2004)
123 Cal.App.4th 76, 84.) We liberally construe the opposing




                                  5
party's evidence and resolve all doubts in favor of the opposing
party. (Lyle v. Warner Brothers Television Productions (2006)
38 Cal.4th 264, 274.) We consider all evidence in the moving and
opposition papers, except that to which objections were properly
sustained. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037.)
              Plaintiffs Failed to Plead the Empty Pool
                Theory of Liability in Their Complaint
              Plaintiffs contend the trial court erroneously
determined that their complaint failed to plead their empty pool
theory of liability and, as a result, they were barred from
defeating summary judgment based on that theory. We agree
with the court that this unpled theory of liability was not
properly before it on summary judgment.
              The pleadings play a key role in a summary
judgment motion and “„“set the boundaries of the issues to be
resolved at summary judgment.”‟” (Nativi v. Deutsche Bank
National Trust Co. (2014) 223 Cal.App.4th 261, 289.) “[T]he
scope of the issues to be properly addressed in [a] summary
judgment motion” is generally “limited to the claims framed by
the pleadings. [Citation.] A moving party seeking summary
judgment or adjudication is not required to go beyond the
allegations of the pleading, with respect to new theories that
could have been pled, but for which no motion to amend or
supplement the pleading was brought, prior to the hearing on the
dispositive motion. [Citation.]” (Howard v. Omni Hotels
Management Corp. (2012) 203 Cal.App.4th 403, 421; see
California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625,
637, fn. 3 [“[a] party may not oppose a summary judgment motion
based on a claim, theory, or defense that is not alleged in the




                               6
pleadings,” and “[e]vidence offered on an unpleaded claim, theory,
or defense is irrelevant because it is outside the scope of the
pleadings”].)
             Here, a fair reading of the complaint‟s allegations
does not suggest a negligence claim based on the condition of the
empty pool as opposed to the condition of the diving board. A
defendant (or a court) reading the complaint would not
reasonably anticipate such a claim and, therefore, would not have
understood that a motion for summary judgment would need to
address the claim. The allegedly defective condition of the diving
board is the only theory stated in the complaint. There are
additional general allegations of negligence with respect to the
failure to maintain and control the property, but the only specific
mention of negligence relates to Coldwell‟s alleged “fail[ure] to
take measures to make the area where Plaintiff fell reasonably
safe, repair the diving board and all accompanying attachments,
protect Plaintiff from the diving board, remove the diving board,
and fail[ure] to warn Plaintiff that the diving board and all
accompanying attachments were in poor condition.” The
complaint did not mention the pool except to state that “Plaintiff
. . . was lawfully and foreseeably on an outdoor diving board on
said premises when the attachments connecting the diving board
to the ground broke off causing the board, and Plaintiff, to fall
into a nearby empty pool.” There is no mention, suggestion, or
any facts alleged that would put a reasonable defendant on notice
that plaintiffs were claiming that Coldwell was negligent with
respect to the empty pool. Thus, Coldwell‟s motion for summary
judgment did not need to address that claim. (See Hutton v.
Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 499
[“[d]efendant . . . met its burden as the moving party when it




                                7
negated the sole basis of plaintiff's claims,” and “[i]t was not
incumbent on defendant to refute liability on some theoretical
possibilities not included in the pleadings”].)
             Moreover, plaintiffs did not seek to amend their
complaint to allege that their negligence cause of action was
based on a claim relating to the empty pool. (See Aleksick v.
7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186 [“„[i]f the
opposing party's evidence would show some factual assertion,
legal theory, defense or claim not yet pleaded, that party should
seek leave to amend the pleadings before the hearing on the
summary judgment motion‟”]; Bostrom v. County of San
Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664 [“[i]f either
party wishes the trial court to consider a previously unpleaded
issue in connection with a motion for summary judgment, it may
request leave to amend”].) Plaintiffs could have sought to amend
their complaint, and their failure to do so precluded them from
defeating Coldwell‟s motion for summary judgment based on
their new theory. (See Howard v. Omni Hotels Management
Corp., supra, 203 Cal.App.4th at p. 420 [“[i]t is not appropriate,
at the time [of filing the opposition], to raise new legal theories or
claims not yet pleaded, if there has been no request for leave to
amend accordingly, prior to the summary judgment
proceedings”].)
             Finally, if plaintiffs‟ complaint left any doubt that
their claims were based on the allegedly defective diving board,
and not on the condition of the empty pool, their interrogatory
responses removed that doubt. (See Burke v. Superior Court
(1969) 71 Cal.2d 276, 281 [interrogatories “used to clarify the
contentions of the parties . . . are an adjunct to the pleadings”
and should be used liberally “for the purpose of clarifying and




                                  8
narrowing the issues made by the pleadings”].) Plaintiffs‟
responses to Coldwell‟s contention interrogatories make no
mention of the empty pool theory of liability. For example, in
response to an interrogatory requesting that plaintiffs “state each
and every fact that supports YOUR first cause of action for
general negligence as against [Coldwell],” plaintiffs responded:
“Defendants owned, managed, and/or otherwise controlled the
subject premises. At the time of the incident there were no
visible signs warning of the diving board. Jacques was unaware
that by just standing on the diving board it could break off from
the raised platform and slide down into the swimming pool.
Defendants failed to protect Jacques from the diving board.
Moreover, defendants failed to take adequate measures to
inspect, maintain, and/or repair it. Accordingly, the diving board
constituted a hidden trap which resulted in plaintiff‟s severe
injuries.”
              In sum, the trial court correctly ruled that “Plaintiffs
cannot rely on their unpled, undisclosed, . . . theory that Coldwell
is liable for failing to remedy, warn, or otherwise protect Jacques
from the dangerous condition of the empty pool. Accordingly,
Plaintiffs are limited to the theory that Coldwell is liable for
failing to correct, warn of, or otherwise protect Jacques from the
dangerous condition of the diving board.” Given that plaintiffs do
not challenge the court‟s determination that summary judgment
was warranted on the diving board theory of liability, we
conclude the judgment must be upheld.




                                  9
        Even if the Empty Pool Theory was Properly Pled, It is
             Insufficient to Defeat Summary Judgment2
              Plaintiffs contend that the trial court erred by
holding, as a matter of law, that Coldwell is not liable for failing
to remedy, warn or otherwise protect Jacques from the dangerous
condition of the empty pool. Coldwell responds that the court
properly determined that Coldwell had no duty to protect Jacques
from the open and obvious danger of the empty pool because
there was no foreseeable practical necessity requiring Jacques to
encounter the danger. We agree with Coldwell.
              To establish negligence, a plaintiff must prove duty,
breach of duty, causation and damages. (Ortega v. Kmart Corp.
(2001) 26 Cal.4th 1200, 1205.) Whether a duty should be
imposed on a defendant depends on a variety of policy
considerations, known as the Rowland factors. (Rowland v.
Christian (1968) 69 Cal.2d 108, 112-113 (Rowland).) These
factors include, inter alia, the foreseeability of harm to the
plaintiff, the burden to the defendant and the consequences to
the community of imposing the duty. (Ibid.; Osborn v. Mission
Ready Mix (1990) 224 Cal.App.3d 104, 121-122 (Osborn) [“Duty
. . . depends on various policy considerations, the most important
of which is the foreseeability of injury to another”].) “The court's
task in determining whether a duty exists „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


      2 Although the trial court concluded that plaintiffs could not
rely on their unpled empty pool theory of liability, it nonetheless
reached the issue of whether a triable issue of material fact exists
regarding that theory. We elect to reach this issue as well.




                                10
is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent
party.‟ [Citation.]” (Elsheref v. Applied Materials, Inc. (2014)
223 Cal.App.4th 451, 459-460, italics omitted.) “Foreseeability,
when analyzed to determine the existence or scope of a duty, is a
question of law to be decided by the court.” (Ann M. v. Pacific
Plaza Shopping Center (1993) 6 Cal.4th 666, 678, superseded by
statute on other grounds as stated in Saelzer v. Advanced Group
400 (2001) 25 Cal.4th 763, 767-768; accord, Ericson v. Federal
Express Corp. (2008) 162 Cal.App.4th 1291, 1300.)
              Foreseeability of harm is typically absent when a
dangerous condition is open and obvious. (Osborn, supra, 224
Cal.App.3d 104 at pp. 114-121.) “Generally, if a danger is so
obvious that a person could reasonably be expected to see it, the
condition itself serves as a warning, and the landowner is under
no further duty to remedy or warn of the condition.” (Krongos v.
Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) 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. (Haberlin v. Peninsula Celebration Assn.
(1957) 156 Cal.App.2d 404, 408.)
              An exception to this general rule exists 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).” (Osborn, supra, 224 Cal.App.3d at p. 122, italics
omitted.) In other words, while the obviousness of the condition
and its dangerousness may obviate the landowner's duty to
remedy or warn of the condition in some situations, such
obviousness will not negate a duty of care when it is foreseeable
that, because of necessity or other circumstances, a person may




                               11
choose to encounter the condition. In Osborn, for example, a
trucker was injured when he fell walking over a demolished
concrete ramp, which was the only means of reaching a silo for
delivery of materials. (Id. at pp. 109-110.) In finding a disputed
factual issue as to premises liability, the court noted that the
worker's “employment required him to pass across this area in
order to complete his work.” (Id. at p. 123; see Florez v. Groom
Development Co. (1959) 53 Cal.2d 347, 358-359 [foreseeable that
plaintiff would attempt to walk across a narrow plank because
his job duties required him to access a faucet and “[t]he
dangerous plank was the only means furnished to reach that
faucet”].)
             Plaintiffs do not challenge the trial court‟s conclusion
that “[t]he dangers of the empty swimming pool were per se
obvious to any adult.” Indeed, Jacques admitted during his
deposition that he was fully aware of the danger. The issue is
whether there is any evidence from which a trier of fact could
find that, as a practical necessity, Jacques was foreseeably
required to expose himself to the danger of falling into the empty
pool. The record does not disclose any such evidence.
             This case is distinguishable from Martinez v.
Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, in which
the court determined there was a practical necessity for the
plaintiff to walk across wet pavement because the pavement was
the “principal if not sole access way from the street to defendant‟s
building, which housed a government office serving the public.”
(Id. at p. 1185.) Here, potential buyers did not have to approach
the dangerous condition (i.e., the empty pool) in order to inspect
the backyard. They could easily avoid the edge of the empty pool
as they viewed the property. Moreover, there is nothing in the




                                 12
record suggesting that Jacques was under a “necessity” to
confront the dangerous condition of the empty pool. Although
Jacques wished to look over the fence, he was not compelled to do
so as part of his inspection. He could have abandoned that part
of his inspection rather than stand on a diving board over an
obviously empty pool. Alternatively, he could have found a safer
means of assessing whether someone could jump over the fence
into the backyard. It was not reasonably foreseeable that he or
anyone else would use the diving board for that purpose.
             Nor is this case similar to Beauchamp v. Los Gatos
Golf Course (1969) 273 Cal.App.2d 20. The plaintiff in that case
slipped and fell while walking in spiked golf shoes across the
defendant's veranda, a rough, troweled concrete surface, even
though she knew that her footing would not be as stable as it
would have been on grass. (Id. at pp. 23-24.) The route taken by
plaintiff was not the only entrance to the golf club and there were
“no imperfections or defects in the concrete walk surface.” (Id. at
p. 24.) Even though the plaintiff knew that golf shoes reduce
one's traction, the court found that “in view of the [club‟s]
invitation to use the walkway, she was entitled to consider it
reasonably safe” and that “the question of her appreciation of the
risk, or her imputed knowledge of it, is not so overwhelming as to
properly permit a nonsuit.” (Id. at p. 34.)
             Here, Coldwell did not invite potential buyers to
approach the edge of the empty swimming pool as part of their
inspection of the property. To the contrary, the MLS listing
warned potential buyers to “please use CAUTION around the
empty pool.” As the trial court aptly observed, “[t]he
circumstances presented . . . do not involve facts showing a
practical necessity that [Jacques] expose himself to the danger




                                13
posed by an empty swimming pool, or an invitation from Coldwell
that he do so. Instead of being required to expose himself to the
dangers posed by the empty pool by his work duties [or
otherwise], the evidence indicates that [Jacques] voluntarily
exposed himself to the dangers posed by the empty pool in order
to look over a fence.”
             Accordingly, we agree with the trial court‟s
conclusion that “the undisputed facts indicate that it was not
reasonably foreseeable that [Jacques] would expose himself to the
risks associated with the empty pool, as he was neither required
nor invited to do so. Simply stated, as a matter of law it was not
foreseeable that he would knowingly embrace an entirely obvious
risk by voluntarily using the diving board on an empty pool for a
purpose for which it was not intended.” Because Jacques‟s
accident was not foreseeable, the court appropriately granted
summary judgment on plaintiffs‟ theory that Coldwell is liable for
failing to protect Jacques from the dangerous condition of the
empty pool.3
          The Trial Court Did Not Abuse Its Discretion by
               Considering Coldwell’s Reply Evidence
             Coldwell raised new issues and evidence pertaining
to the empty swimming pool theory in its reply papers. Plaintiffs
contend the trial court abused its discretion by considering the
evidence in ruling on the summary judgment motion. We
disagree.



      3Having concluded that Jacques‟s accident was not
foreseeable, we need not discuss the remaining Rowland policy
considerations. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301,
306; see Rowland, supra, 69 Cal.2d at pp. 112-113.)




                               14
              It is well established that the trial court's
consideration of additional reply “evidence is not an abuse of
discretion so long as the party opposing the motion for summary
judgment has notice and an opportunity to respond to the new
material.” (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362,
fn. 8, citing Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d
1094, 1098.) The record confirms that plaintiffs had notice of the
additional material when they received Coldwell‟s reply papers
and ample opportunity to ask the trial court for permission to
submit responsive evidence or to file a sur-reply. By failing to
take such action, or to even object to the court‟s consideration of
the evidence, plaintiffs forfeited any claim of a due process
violation. (See Robbins v. Regents of University of California
(2005) 127 Cal.App.4th 653, 659-660 [party opposing summary
judgment forfeited due process claim by failing to move for a
continuance for the purpose of conducting further discovery];
Plenger, supra, 11 Cal.App.4th at p. 362, fn. 8 [due process claim
forfeited where “plaintiffs did not object to the new evidence, did
not request a continuance, and did not even suggest that
additional evidence could be presented on the issue”]; see also
Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388,
1426 [“Absent any objection to the inclusion of new evidence in
[moving party‟s] reply brief, the court was entitled to consider the
evidence as within the record before it”].)
              Furthermore, the trial court acted within its
discretion by allowing Coldwell to provide evidence in response to
a new theory of liability raised by plaintiffs in their opposition.
As discussed above, although plaintiff‟s complaint and discovery
responses briefly referenced the empty pool, the only theory of
liability alleged in the complaint or disclosed during discovery




                                15
was the purported defective condition of the diving board, not the
hazard from the empty pool. Coldwell was justified, therefore, in
replying to the newly raised issue regarding the empty pool.
                          DISPOSITION
             The judgment is affirmed. Coldwell shall recover its
costs on appeal.




                                     PERREN, J.
We concur:



             GILBERT, P. J.



             TANGEMAN, J.




                                16
   John H. Reid, Kent M. Kellegrew, Mark S. Borrell, Judges

               Superior Court County of Ventura
                ______________________________


             Grassini, Wrinkle & Johnson and Brian Hong, for
Plaintiffs and Appellants.
             Horvitz & Levy, Lisa Perrochet, Joshua C. McDaniel;
Bradley & Gmelich and Thomas P. Gmelich, for Defendant and
Respondent.




                               17
Filed 8/14/17

                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


JACQUES JACOBS et al.,                   2d Civil No. B277832
                                       (Super. Ct. No. 56-2015-
     Plaintiffs and Appellants,        00463977-CU-PO-VTA)
                                          (Ventura County)
v.
                                       ORDER CERTIFYING
COLDWELL BANKER                    OPINION FOR PUBLICATION
RESIDENTIAL BROKERAGE              [NO CHANGE IN JUDGMENT]
COMPANY,

     Defendant and Respondent.



THE COURT:
           The opinion in the above-entitled matter filed on
July 25, 2017, was not certified for publication in the Official
Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so
ordered.
