Jacobs v. Coldwell Banker Residential Brokerage Co.
B277832
Cal. Ct. App.Aug 14, 2017Background
- Coldwell Banker listed a vacant, bank-owned Simi Valley house whose backyard had an empty swimming pool with a diving board; MLS warned: "please use CAUTION around the empty pool."
- Agent Garnett inspected the property (20–30 minutes in the backyard) and observed no visible defect in the diving board; Clearflo Pools inspected the pool and reported no concerns about the diving board.
- Prospective buyer Jacques (a contractor experienced with pools) entered the fenced pool area during a showing, stood on the diving board to look over the fence, the board detached, and he fell into the empty pool suffering serious injuries.
- Plaintiffs sued Coldwell for negligence (and Xenia for loss of consortium), alleging specifically that Coldwell failed to repair/warn about the diving board.
- Coldwell moved for summary judgment arguing lack of notice of any diving-board defect and no duty regarding the obvious empty pool; trial court granted summary judgment.
- The Court of Appeal affirmed: plaintiffs had not pled or disclosed an empty-pool theory, and even if pled, no duty existed because the open-and-obvious empty pool did not present a foreseeable necessity requiring Jacques to encounter it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs could rely on an empty-pool theory at summary judgment | Jacobs argued Coldwell was liable for failing to remedy/warn about the empty pool (raised in opposition) | Coldwell argued this theory was not alleged in the complaint or disclosed in discovery and thus cannot defeat MSJ | Court: Plaintiffs waived the empty-pool theory; complaint and interrogatory answers alleged only diving-board defect, so MSJ need not address new theory; affirmed |
| Whether Coldwell had notice or breached duty as to the diving board | Jacobs alleged Coldwell failed to repair/warn about the diving board | Coldwell produced evidence of no actual/constructive notice (agent inspection, Clearflo report); Jacques observed the board and thought it in good condition | Court: Uncontested lack of notice; summary judgment proper on diving-board theory (plaintiffs do not challenge this ruling) |
| Whether a landowner owes duty for an open-and-obvious danger (empty pool) | Jacobs argued duty existed to protect prospective buyers from pool hazard | Coldwell argued empty pool was open and obvious and there was no foreseeable necessity to encounter it; MLS warned caution | Court: No duty; as a matter of law the empty pool’s danger was obvious and not foreseeable to be encountered by necessity — summary judgment affirmed |
| Whether trial court abused discretion by considering defendant’s reply evidence | Plaintiffs argued additional reply evidence on empty-pool theory was unfair | Coldwell argued reply evidence responded to a new theory raised by plaintiffs; plaintiffs had opportunity to object or seek continuance but did not | Court: No abuse; considering reply evidence was proper because plaintiffs had notice and failed to request relief; any complaint forfeited |
Key Cases Cited
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (summary judgment burden-shifting)
- Rowland v. Christian, 69 Cal.2d 108 (duty analysis uses foreseeability and policy factors)
- Osborn v. Mission Ready Mix, 224 Cal.App.3d 104 (open-and-obvious danger; exception when necessity requires encountering it)
- Nativi v. Deutsche Bank Nat. Trust Co., 223 Cal.App.4th 261 (pleadings set boundaries for summary judgment issues)
- Howard v. Omni Hotels Mgmt. Corp., 203 Cal.App.4th 403 (new legal theories must be pled or seek leave to amend before opposing MSJ)
- Plenger v. Alza Corp., 11 Cal.App.4th 349 (reply evidence may be considered if opposing party has notice and opportunity to respond)
- Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666 (foreseeability as question of law when determining duty)