Franco v. PAG Ontario B1 CA4/1

Filed 10/21/26 Franco v. PAG Ontario B1 CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA JULIE FRANCO, D088030 Plaintiff and Appellant, (Super. Ct. No. CIVSB2300213) v. PAG ONTARIO B1, INC. et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of San Bernardino County, Donald R. Alvarez, Judge. Reversed. Sandoval Law and Abraham Sandoval; Law Office of Omer A. Kahn and Omer A. Kahn for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith and Tracy D. Forbath, Daniel R. Velladao, Mason T. Smith, Alexandra S. Gleicher for Defendants and Respondents. While inspecting a loaner vehicle, Pamela Sowers sustained a fall on a curb at the automotive service department premises of defendants and 1 respondents PAG Ontario B1, Inc. and Penske Automotive Group Inc. Her estate’s successor-in-interest, plaintiff and appellant Julie Franco,1 sued defendants for premises liability based on a dangerous condition and negligence, but the trial court granted summary judgment in defendants’ favor in part on grounds Franco (1) did not meet her burden to show they had actual and constructive notice of the assertedly dangerous condition and (2) did not present triable issues of material fact as to causation. Franco appeals the summary judgment, contending as to the issue of notice, the court erred because notice is imputed to defendants, who created the dangerous condition; defendants did not meet their threshold burden to show summary judgment was warranted on the notice question; and her evidence raised a triable issue of material fact that defendants had notice of the dangerous condition in any event. On the questions of whether a dangerous condition existed as well as whether the condition was open and obvious, Franco further contends defendants either did not meet their summary judgment burden, or she presented evidence raising triable issues of material fact. Finally, Franco contends defendants did not meet their burden to show Sowers was the sole proximate cause of her fall. For the reasons discussed below, we agree the court improperly granted summary judgment and reverse. FACTUAL AND PROCEDURAL BACKGROUND We state the facts and view the evidence in the light most favorable to Franco as the losing party, resolving evidentiary doubts or ambiguities in her 1 Sowers passed away suddenly after she filed her original complaint. Thereafter, on the parties’ stipulation the court ordered that Franco be substituted as the plaintiff of record and granted her leave to file the operative first amended complaint. 2 favor. (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 620, 634.) In February 2022, Sowers was at the car dealership Mini of Ontario walking around a loaner vehicle parked in the dealership’s service canopy area, when she tripped on a sloping concrete curb. At the time, defendants’ employee, Abigail Lopez, was assisting Sowers in inspecting the vehicle. The curb and gutter where Sowers fell was just under three feet wide and six inches high, located along a roughly four-foot eight-inch wide concrete sidewalk along the inside of the north wall. The drive aisles of the canopy area, where cars were pulled up for drop off or inspection, were at the same level as the service department’s interior floor. Defendants had painted other curbs on the premises a safety yellow color, but did not paint the sloping curb in the service canopy area, which was light grey concrete like the drive aisles and sidewalk in that area. The purpose of the yellow paint on the other curbs was so people could see them. 3 4 5  Sowers sued defendants, bringing causes of action for premises liability based on an unsafe/dangerous condition and negligence. She alleged in part that the defendants negligently constructed or maintained the unmarked curb that presented a dangerous trip hazard, and failed to warn of the condition to visitors such as Sowers, resulting in injuries to her when she tripped over it and fell. She alleged defendants had a duty to use reasonable care to business invitees like her to keep the premises in a reasonably safe condition and prevent harm to others, but failed to do so. Sowers alleged it was foreseeable that a visitor like her getting a rental vehicle would not see the beveled and unmarked concrete curb as she entered the dealership, thereby tripping, falling, and injuring herself. She alleged she suffered serious personal injuries as a direct and proximate cause of defendants’ failure to keep the dealership property in a reasonably safe condition. 6  Defendants moved for summary judgment. They argued (1) there was no evidence of a dangerous condition on the property that caused or contributed to Sowers falling; (2) they had no actual or constructive knowledge of a dangerous condition because none existed; and (3) the curb on the sidewalk was an open and obvious condition that Sowers appreciated, as she was able to navigate her right foot over the curb before she fell. Defendants submitted video footage of the incident as well as medical records showing Sowers had suffered prior falls for which she was hospitalized or received medical treatment. They also submitted the declaration of the service manager of BMW of Ontario at the time of the February 2022 incident, Chris Mandry. Mandry averred that defendants inspected and maintained the premises, including the vehicle pick-up area, on a regular basis, and at no point before Sowers’s incident were there any defects or other dangerous conditions on the sidewalk or curb there. He stated that defendants had no knowledge of any other similar incidents occurring in the pick-up area, including the sidewalk and curb. Franco opposed the motion. She argued she presented evidence and raised triable issues of material fact on whether the curb where Sowers fell was a dangerous condition because it was unpainted, inconspicuous, and Sowers’s attention was being directed towards the nearby loaner vehicle by Lopez at the time of the fall. She also argued the evidence showed defendants failed to provide conspicuous markings or paint showing an elevation change on the curb, despite their awareness of the risk of unpainted curbs as evidenced by the existence of brightly painted curbs in a safety yellow color throughout the other lighted areas of the premises. Franco argued her evidence created triable issues of material fact on whether the dangerous condition was open and obvious. 7  Among other evidence, Franco submitted deposition excerpts from Lopez and Mandry. Lopez testified that when she first started working at the dealership, she learned from another advisor that a child had slipped because they were painting the curbs and pavement edges and the contractors had not put up signs. When asked why the other curbs at the dealership had been painted yellow, Mandry testified that it was his understanding that any curbs that did not have sufficient lighting were painted, and they did not paint the curbs in the service canopy because it is a lighted area. He testified that the purpose of the yellow paint was “so they can be seen,” “[p]articularly in poor lighting.” Franco also submitted declarations from biomechanical engineer expert Albert Vangura and ergonomist, engineer and human factors expert Kevin Rider. Vangura averred based on the surveillance footage that Sowers was looking in Lopez’s direction and not backwards at the time of the incident. Rider, who had conducted a site inspection, opined that the curb where Sowers fell was “inconspicuous in design and maintenance, based on a lack of contrasting colors, and consequently the curb’s elevation change was not readily identifiable under casual observation.” He stated that “[t]he lack of contrasting colors in the elevation change inhibited patrons, such as Ms. Sowers, from detecting the presence of the curb.” Rider stated he observed that in some of the areas where curbs were painted yellow, the lighting was comparable to the lighting under the service canopy. He stated it was his opinion that “[d]efendants’ placement of the MINI Cooper vehicle for inspection next to the inconspicuous unpainted curb resulted in Ms. Sowers[’s] attention being directed away from the curb and towards the nearby vehicle at the same time she encountered the curb” and that vehicle placement, as well as defendants’ “failure to provide 8 conspicuous markings on the elevation change of the subject curb where Ms. Sowers fell—unlike the markings on the other curbs on the premises— created a dangerous condition that resulted in [her] fall and subsequent damages.” Finally, Franco submitted a declaration from forensic architect Lee Martin, who had also conducted a site inspection. Martin stated that “Sowers tripped because the change in levels represented by the curb was not conspicuous to her, nor would she have expected to encounter a curb in that location. There was no curb or step-down near the door leading to the covered area that would have been a cue that there might be curbs in other parts of area under the canopy.” He observed that the curb was similar in color and texture to the drive aisle and sidewalk, so “contrast was minimal.” He stated the curb and sidewalk in the service canopy area were a foreseeable part of the pedestrian walkway, but the purpose of the curb and sidewalk there was not clear, and it would have been practical and reasonable to construct the drive aisles as one planar surface without a sidewalk or curb.2 Martin stated “[w]ithin a reasonable degree of architectural and technical probability” that the “inconspicuous and 2 More specifically, Martin averred that walkway standards require changes in levels greater than one-half inch in height to be treated like a ramp or a stair, and the curb, having a 1:2 slope, was too steep to be considered a ramp. He also stated the sloping curb and sidewalk along the north wall of the service canopy served no specific function and could have been flat like the drive surface, and the dealership should have known that vehicle renters like Sowers would be distracted while in the vicinity of the curb, and a) constructed the service area slab to be planar or relatively flat, b) taken steps to conduct inspections away from the curb, c) made the curb reasonably conspicuous like other curbs throughout the property or d) designed the curb as a ramp to the upper level sidewalk. 9 unexpected sloping curb was a pedestrian walkway hazard”; the dealership’s failure to conduct vehicle inspections in a reasonably safe location was the cause of Sowers’s trip and fall; and had the service area drive aisles been relatively flat without a change in levels in the vicinity of the north wall, or if the curb under the canopy had been painted yellow like other curbs in the vicinity of the service canopy, Sowers would not have tripped and fallen. In reply, defendants argued the expert opinions were improper, cumulative and inadmissible. They maintained Franco’s opposition was not supported by credible or admissible evidence, and she had not shown triable issues of fact that a dangerous condition existed, that they had actual or constructive knowledge of such condition, or that the curb was not open and obvious. Defendants asserted both Martin’s and Rider’s opinions were based solely on conjecture and speculation, lacked foundation or evidentiary support, and consisted of improper legal conclusions. They argued Vangura’s declaration was contradicted by the video evidence and the court should disregard it. Defendants argued Franco had not addressed the question of whether Sowers’s improper footing and limited mobility were the sole and proximate cause of her fall as the video evidence assertedly showed. They objected to the declarations of Martin, Rider and Vangura on various grounds. Defendants also submitted a declaration from licensed architect Dave Ball, who averred in part that the as-built curb where Sowers fell was code compliant and not inherently dangerous; that the video showed it to be “in clear view upon Ms. Sower[s’s] approach to the car and there was available room to safely navigate around the car.” He stated the curb was “by definition conspicuous and . . . safer than the standard, vertical curb.” They provided a declaration from human factors expert Elizabeth Pettit, who gave 10 her opinion that “an attentive pedestrian in Ms. Sower[s’s] position would have been able to detect the subject curb and safely traverse or avoid it without incident.” Pettit identified a number of visual cues underlying her opinion, and stated: “For a typical, attentive pedestrian in Ms. Sower[s’s] position, there is ample opportunity to identify and safely navigate the curb after exiting the building for virtually the entire duration that Ms. Sowers is crossing through the driveway. Based on the visual cues listed above, the subject curb was highly conspicuous.” She stated it was likely that Sowers’s trip and fall was due to human factors.3 The trial court granted summary judgment in defendants’ favor. Overruling all of defendants’ objections, it found there was “no showing that [d]efendants had actual or constructive notice [of the dangerous condition]” which mooted the rest of the issues and disposed of both causes of action. The court ruled that as to the notice issue, Franco as the plaintiff bore the initial burden of showing the defendant had notice of the defect with sufficient time to correct it. It found it undisputed that defendants regularly inspected and maintained the property, including the vehicle pick-up area, and observed Franco’s expert Rider had concluded that the curb where Sowers fell was inconspicuous in design and maintenance based on a lack of contrasting colors, and its elevation change was not readily identifiable under casual observation, prohibiting patrons such as Sowers from detecting the 3 According to Franco, the trial court disregarded the reply declarations of experts Ball and Pettit. The court’s ruling does not state this expressly. Based on Franco’s record citation for this assertion, presumably it is based on the court’s statement of the “evidentiary basis” for its ruling, which omits reference to them. Even if we were to consider the declarations, they merely raise disputed fact issues concerning the curb’s visibility and the cause of Sowers’s fall. 11 curb’s presence. The court acknowledged Rider’s opinion that defendants were aware of the potential hazard associated with inconspicuous curbs given other curbs were painted throughout the exterior of the facility, and that defendants’ placement of the loaner car for inspection next to the inconspicuous and unpainted curb created a dangerous condition resulting in Sowers’s fall. But the court agreed with defendants that the evidence from Lopez’s deposition that a child had previously fallen was a “red herring” given Lopez had not seen the child fall and the record lacked evidence the fall was on the same curb. It found Franco had failed in her burden to show defendants had actual and constructive notice of the dangerous condition. Based on its conclusion on the issue of notice, the court found “moot” the other issues of the existence of a dangerous condition and whether the condition was open and obvious. It went on to find that Franco did not address proximate causation, and therefore did not present a triable issue of material fact on that point. DISCUSSION I. Summary Judgment Legal Principles and Standard of Review “A trial court properly grants a motion for summary judgment only if no triable issue exists as to any material fact and the defendant is entitled to judgment as a matter of law. [Citations.] ‘The moving party bears the burden of showing the court that the plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case . . . .” ’ ” (Bailey v. San Francisco Dist. Attorney’s Office, supra, 16 Cal.5th at p. 620.) “ ‘Where, as here, the defendant moves for summary judgment on the grounds that one or more elements of the plaintiff’s [cause of action] cannot be established, the defendant must present evidence that either “conclusively negate[s] an element of the plaintiff’s cause of action” or “show[s] that the plaintiff does 12 not possess, and cannot reasonably obtain,” evidence needed to establish an element . . . .’ [Citations.] ‘ “Only after the defendant carries that initial burden does the burden shift to the plaintiff ‘to show that a triable issue of one or more material facts exists as to the cause of action . . . .’ ” ’ [Citations.] ‘There is a triable issue of material fact if, and 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.’ ” (Long Beach Memorial Medical Center v. Allstate Ins. Co. (2023) 95 Cal.App.5th 710, 716.) “ ‘ “ ‘ “We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see also Bailey v. San Francisco Dist. Attorney’s Office, supra, 16 Cal.5th at p. 620; Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 684.) We strictly construe the defendants’ evidence in order to resolve any evidentiary doubts. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “ ‘In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to “decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” ’ [Citation.] ‘We need not defer to the trial court and are not bound by the reasons in its summary judgment 13 ruling; we review the ruling of the trial court, not its rationale.’ ” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 144.) II. Negligence/Premises Liability Legal Standards “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.” ’ ” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; accord, Nicoletti v. Kest, supra, 97 Cal.App.5th at p. 145; Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) “ ‘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.’ ” (Nicoletti v. Kest, supra, 97 Cal.App.5th at p. 145; see Rowland v. Christian (1968) 69 Cal.2d 108, 112- 113.) “A harm is typically not foreseeable if the ‘dangerous condition is open and obvious.’ ” (Nicoletti, at p. 145.) “[L]andowners have no duty to warn of open and obvious dangers on their property because such dangers serve as warnings themselves.” (Jones v. Awad, 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.) In addition, “ ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if 14 known to him, he should realize as involving an unreasonable risk to invitees on his premises . . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206; Jones v. Awad, supra, 39 Cal.App.5th at p. 1208.) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge.” (Ortega, at p. 1206.) “Typically, to charge an individual with constructive notice, he must have, ‘actual notice of facts or circumstances which are sufficient to put a prudent person on inquiry as to the existence of the fact with respect to which he is charged with constructive notice.’ [Citation.] Therefore, a landowner cannot be charged with constructive notice without a showing of some overt feature surrounding the dangerous condition, which would notify the landowner of its existence.” (Jones, at p. 1209.) Thus, in Jones, the plaintiff tripped on a step covered by a mat and carpet leading from the defendant homeowners’ house to a garage. (Jones v. Awad, supra, 39 Cal.App.5th at pp. 1203-1204.) The height from the house’s floor landing to the step was approximately 10 and one-half inches, and the height from the step to the garage floor was approximately seven inches. (Id. at p. 1203.) At the time of her fall, the lighting was sufficient for the plaintiff to see where she was stepping, there were no debris or obstacles covering or otherwise obscuring the steps, and the step into the garage would have been readily seen by an average adult person. (Id. at p. 1204.) The appellate court in Jones still held the circumstances did not fall within the exception to the general duty of care for an open and obvious danger. (Jones v. Awad, supra, 39 Cal.App.5th at p. 1208.) “Plaintiff claims it was the unexpected two and one-half to three-inch difference in step height that caused her to fall, and not the step in general. While the existence of the 15 step itself was open and obvious, the indistinct change in elevation between each step would not have been apparent to an individual stepping down. Additionally, the fact that the garage step area was free of debris, cracks, and obstacles would further reduce an individual’s expectation of danger. Therefore, this exception does not relieve defendants of their duty of care.” (Ibid.) Nevertheless, the court in Jones held that the plaintiff failed to raise triable issues of material fact as to the defendants’ actual or constructive notice of the dangerous condition. The plaintiff left unchallenged evidence that defendants were not notified of building code violations in the garage step area. (Jones v. Awad, supra, 39 Cal.App.5th at p. 1208.) And while the mat on the step did not comply with the code, it did not follow that the mat constituted a dangerous condition as the plaintiff did not “explain how the failure of the rattan mat to meet the [building code] requirement created a dangerous condition.” (Id. at p. 1209.) The court held: “Plaintiff fails to point to any conspicuous element of the garage steps that would put a reasonably prudent person on notice of an unreasonable risk of harm. Rather, plaintiff does the opposite, by listing several relatively minor deviations from the standards set forth in the [building code]. The number of violations is not significant unless it is shown the violations produced some noticeable feature of the garage steps. Without more, it cannot be concluded that the variation of a few inches is sufficient to raise a triable issue of material fact with respect to constructive notice.” (Id. at p. 1210.) III. The Impact of The Court’s Evidentiary Ruling As stated, the trial court overruled all of defendants’ objections to Franco’s evidence. It gave no reasons in its written order, and the summary judgment hearing went unreported. Though defendants acknowledge the 16 court’s evidentiary ruling, they do not challenge it under a separate heading. Instead, defendants intersperse their arguments on the merits with assertions that some of Franco’s expert opinions or conclusions are speculative, lacked foundation concerning what Sowers perceived, or were “self-serving [and] devoid of any basis, explanation, or reasoning.” While the assertions are supported by case citations, they do not acknowledge or apply the abuse of discretion review standard, which this court and the weight of authority uses in this context. (See De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 28; Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1118.) As the appellants, it is defendants’ burden on appeal to affirmatively challenge the trial court’s evidentiary rulings and demonstrate error. (Janney v. CSAA Ins. Exchange (2021) 70 Cal.App.5th 374, 391.) To prevail on a claim of evidentiary error, they “must identify the specific objection, provide legal argument explaining why the trial court’s ruling was in error, and support that argument with citation to pertinent legal authority.” (City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 463.) It is not enough to argue “generalities.” (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 [plaintiffs failed to carry burden of demonstrating evidentiary error by “arguing only generalities” regarding an expert’s qualifications and factors considered and failing to specify the evidentiary objections]; Janney, at p. 391.) Because the court overruled all of defendants’ objections to Franco’s expert declarations, we will consider and liberally construe those declarations, as we must, in deciding the propriety of summary judgment. (Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347; Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332-1333 17 [“Applying a liberal construction to [the non-moving party’s expert’s] declaration and resolving any doubts in [the non-movant’s] favor, we conclude that his opinions were adequately supported by a reasoned explanation and were not ‘conclusory.’ ”].) A reasoned explanation in an opposition expert declaration “need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.) Here, these declarations demonstrate the court erred by granting summary judgment. Franco’s experts gave detailed, reasoned explanations for their conclusions. As we explain below, we hold defendants did not meet their threshold burden on the issues of open and obvious condition and whether Sowers’s own condition was the proximate cause of her fall. And even if we were to assume defendants’ evidence established Franco could not prove one or more of those elements of her premises liability/negligence claims, we conclude Franco’s expert’s declarations raise triable issues of material fact on them, as well as whether the curb was dangerous and defendants had notice of the dangerous condition. We turn to those questions. IV. Defendants’ Video Evidence Does Not Show Entitlement to Judgment as a Matter of Law on the Obvious Nature of the Condition and Causation Franco contends defendants did not establish they were entitled to summary judgment on the questions of whether the curb where Sowers fell was an open and obvious tripping hazard, or whether Sowers herself was the sole proximate cause of her fall. Franco points out that defendants in moving for summary judgment on these issues relied solely the surveillance video footage, which they said showed it was “readily apparent to Ms. Sowers prior to the incident, as she clearly saw and appreciated its existence by steeping 18 [sic] up onto the sidewalk with her right foot, prior to falling to the ground.” Defendants argued based on the video that the curb “was clearly delineated from the driving portion of the pick-up area, alerting patrons, like Ms. Sowers, of its presence.” On the issue of causation, defendants again relied on only the video footage of Sowers’s fall to argue it was undisputed that it showed her “improper footing and limited mobility” was the “sole and proximate cause” of her fall. Specifically, defendants claim the video shows Sowers “walked around the loaner vehicle, approached a curbed sidewalk near the back of the loaner vehicle, and stepped up onto the sidewalk with her right foot while looking back toward the rear portion of the loaner vehicle,” and that the video “serves as evidence that Ms. Sowers was aware of the presence of the curb, that she knew it was an elevated surface, and that she understood she needed to step on it to it with both feet.” Defendants say “[t]he video then shows that Ms. Sowers[’s] fall was directly caused by her own inability to properly step up on to the curb using her left foot.” We have viewed the video evidence and fail to see the described conclusions. Both videos depict the service canopy area and its curb and sidewalk, which are the same grey concrete as the floor where the loaner vehicle is parked. The first video shows Lopez leading Sowers to the loaner car, where they engage in conversation. At about 50 seconds into the video, Lopez and Sowers begin to walk around the car. As Sowers’s body comes into view from behind the vehicle while walking toward the curb, her head turns toward the vehicle. 19 She then takes two steps toward the curb, but one of her legs and her head go outside the camera’s view. The camera does not capture her fall. In the second video the loaner vehicle is blocking the view of Sowers’s lower legs and feet. It shows Lopez step up onto the sidewalk while showing the vehicle to Sowers. But as Sowers approaches the curb and sidewalk area, her attention appears to be directed at the vehicle, not the ground. The facts here are akin to those in Jones v. Awad, supra, 39 Cal.App.5th 1200 where, while the existence of the step into the garage in that case was visible and obvious, the elevation change was not apparent to individuals stepping down. (Id. at p. 1208.) Here, the existence of the curb and sidewalk may have been visible and obvious, but the indistinct change in elevation between the floor and the curb would not have been apparent to an individual inspecting a vehicle parked there. As in Jones, “the fact that the [curb and sidewalk area] was free of debris, cracks, and obstacles would further reduce an individual’s expectation of danger.” (Ibid.) As in Jones, the 20 exception for open and obvious conditions does not relieve defendants of their duty of care.4 Finally, causation requires “evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.” (Ortega v. Kmart Corp, supra, 26 Cal.4th at pp. 1205-1206.) For a negligence or premises liability claim, a “plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the 4 If that were not the case, we would conclude it was foreseeable that Sowers would have had to encounter the obviously hazardous condition while being led around the vehicle to inspect it. “While as a general rule, a landowner does not have a duty to remedy or warn of an obviously dangerous condition on his or her property, ‘ “this is not true in all cases. ‘[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.’ ” ’ [Citation.] A landowner’s duty of care is not negated ‘ “when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.” ’ ” (Nicoletti v. Kest, supra, 97 Cal.App.5th at pp. 146-147, italics added.) Franco’s expert Rider averred that defendants’ placement of the loaner vehicle for inspection next to the curb resulted in Sowers’s attention being directed away from it as she encountered it, and this, combined with the failure to conspicuously mark the elevation change with yellow paint as they did with other curbs, created a dangerous condition that resulted in her fall. Not only did Rider’s opinions touch on the open and obvious nature of the hazardous condition, but they addressed whether it was the cause of Sowers’s injuries. Franco’s expert Martin also addressed causation: “Ms. Sowers tripped because the change in levels represented by the curb was not conspicuous to her, nor would she have expected to encounter a curb in that location. There was no curb or step-down near the door leading to the covered area that would have been a cue that there might be curbs in other parts of area under the canopy.” 21 defendant of liability. [Citation.] These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Ortega v. Kmart Corp, supra, 26 Cal.4th at p. 1205; see also Kaney v. Custance (2022) 74 Cal.App.5th 201, 212 [in a premises liability and negligence case, causation may be decided as question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion]; Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) Defendants did not present such undisputed evidence that would warrant summary judgment in their favor. Rather, viewing the video images frame by frame and strictly construing them, we cannot say they show either (1) that the curb, which was the same grey concrete as the service canopy floor, was obviously conspicuous or apparent to persons approaching it while inspecting a vehicle parked nearby, or (2) that Sowers stepped onto the curb with awareness of its presence or the elevation change such that it could not be the proximate cause of her fall as a matter of law. The videos themselves leave room for reasonable differences of opinion on those questions, precluding summary judgment. V. Franco’s Evidence Raises Triable Issues of Material Fact on the Questions of the Existence of a Dangerous Condition and Notice As stated above, in support of summary judgment, defendants submitted a declaration from service manager Mandry, who stated only that defendants had regularly inspected and maintained the premises and vehicle pick-up area, the sidewalk and curb lacked defects or other dangerous conditions before Sowers’s fall, and defendants had no knowledge of any other similar incidents occurring in the pick-up area and its sidewalk or curb. But Franco in response presented Mandry’s deposition acknowledging that 22 defendants had painted other curbs on the premises with safety yellow paint so as to be visible to people. “The existence of a dangerous condition is ordinarily a question of fact . . . but it can be decided as a matter of law if reasonable minds can come to only one conclusion.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148 [public entity claim]; Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1064 [assumption of risk claim].) Again, the evidence in the summary judgment record does not permit reasonable minds to reach only one conclusion. In our view, a trier of fact may reasonably infer just from Mandry’s deposition testimony that defendants painted the curbs to make them more visible so that people walking in those locations would not trip or slip on them due to the change in elevation. In other words, Franco’s evidence permits a reasonable person to conclude the curbs were hazardous conditions: they posed an unreasonable risk without defendants highlighting them for patrons. The same evidence raises a fact question for a trier of fact as to whether defendants had notice of the dangerous condition; it permits the inference that defendants “realize[d the curbs] involve[ed] an unreasonable risk to invitees on [their] premises.” (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1206; see also Gonzalez v. Interstate Cleaning Corp. (2024) 106 Cal.App.5th 1026, 1035; Jones v. Awad, supra, 39 Cal.App.5th at p. 1208.) Very simply, if defendants had no knowledge of such unsafe conditions, they would not have felt the need to attempt to remedy them. Further, Franco’s other evidence—namely her expert declarations— squarely addressed the dangerous condition and notice issues. After explaining that the unpainted curb was inconspicuous and its elevation change not readily identifiable by causal observers, Franco’s expert Rider 23 stated that “[d]efendant’s placement of the [loaner] vehicle next to the inconspicuous curb and failure to provide conspicuous markings on the elevation change of the subject curb where Ms. Sowers fell—unlike the markings on the other curbs on the premises—created a dangerous condition that resulted in Ms. Sowers[’s] fall and subsequent damages.” He stated the other painted curbs “demonstrated defendants’ awareness of the potential hazard associated with inconspicuous curbs.” (Some capitalization omitted.) Expert Martin stated that the curb and sidewalk under the service area canopy where the rental vehicle was parked for inspection were a foreseeable part of the pedestrian walkway and that “the inconspicuous and unexpected sloping curb was a pedestrian walkway hazard.” These expert declarations similarly presented triable issues of material fact on the questions of the existence of a dangerous condition and defendants’ knowledge of the condition.5 Summary judgment was not warranted on this record. 5 Given our conclusions, we need not reach whether Franco preserved an argument on the theory of imputed notice or whether summary judgment was properly defeated by that theory. (See, e.g., Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [where “ ‘the evidence is such that a reasonable inference can b