Michajlenko v. Terramar Retail Centers CA4/1

Filed 3/9/22 Michajlenko v. Terramar Retail Centers 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

OLEG MICHAJLENKO, D077539

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2017-
00032406-CU-PO-CTL)
TERRAMAR RETAIL CENTERS LLC
et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Affirmed.
Fitzpatrick Law and Robert J. Fitzpatrick for Plaintiff and Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, John R. Clifford and
Kelly A. Van Nort for Defendants and Respondents.

I.
INTRODUCTION
Oleg Michajlenko filed a first amended complaint against defendants
Terramar Retail Centers LLC (Terramar) and Seaport Village Operating
Company LLC alleging that he “was seriously injured when he tripped
and . . . fell,” on property owned and/or managed by defendants. Michajlenko
brought negligence and premises liability causes of action against both

defendants.1
Defendants filed a motion for summary judgment in which they argued
that Michajlenko would be unable to establish either: (1) the existence of a
dangerous condition on their property, or (2) that they had actual or
constructive notice of any such condition, as would be required for
Michajlenko to prove his claims. The trial court granted defendants’ motion
for summary judgment.
On appeal, Michajlenko claims that the trial court erred in granting
defendants’ motion for summary judgment. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The operative complaint
In January 2018, Michajlenko filed the operative first amended
complaint against defendants. In a section of the complaint titled “General

Allegations,”2 (some capitalization omitted) Michajlenko alleged that
defendants owned and/or managed property called, “The Headquarters at
Seaport Village” (the “Premises” or “The Headquarters”). Michajlenko
further alleged that he “was seriously injured when he tripped and . . . fell” in
the parking lot of The Headquarters. According to Michajlenko, his fall
“resulted in serious personal injuries . . . including but not limited to

1 Michajlenko’s wife filed a loss of consortium cause of action against
defendants. However, she dismissed her cause of action in the trial court and
is not a party to this appeal.

2 Michajlenko incorporated all of the general allegations from the
operative complaint into the negligence and premises liability causes of
action.
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traumatic brain injury, serious orthopedic injuries, soft tissue injuries, and
substantial pain and suffering, for which he continues treatment . . . .”
Michajlenko maintained that “the Premises were in a dangerous
condition, which caused the trip and fall” and specified that this dangerous
condition consisted of the following:
“The Premises were undergoing maintenance or
improvements at the time of the [i]ncident and the
pedestrian pathway running [n]orth/[s]outh into the retail
and restaurant establishments was closed off by yellow
tape running along the entirety of both sides of the
pedestrian pathway. This closure forced Mr. Michajlenko
to take an alternate route from the restaurants through the
parking area. That route was not safe for pedestrians.
Forced to walk outside of the pedestrian pathway due to
the obstructions, Mr. Michajlenko tripped over a vehicle
wheel stop, which was difficult to see because of darkness,
its color, and other obstructions. The wheel stop was
especially difficult to see in the darkness because it was
painted the same color blue as the painted lines outlining
the disabled parking spaces.”

In a negligence cause of action, Michajlenko stated that defendants
owed him a duty of care to use reasonable care to prevent harm. Michajlenko
further alleged:
“Defendants created the dangerous condition at the
Premises or allowed the Premises to remain in a dangerous
condition despite their knowledge of the dangerous
condition. Defendants failed to warn others of the
dangerous condition and the condition was not obviously
unsafe. Defendants created the condition at the Premises,
knew of the condition, and failed to warn of the dangerous
condition in spite of the fact that a reasonably careful
person in the same situation would not have created the
dangerous condition, and if known, would have corrected it
or adequately warned others of the dangerous condition.”

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 Michajlenko alleged that the defendants’ breach of their duty caused
him to suffer injuries.
In a premises liability cause of action, Michajlenko alleged that
defendants had a duty to use reasonable care to keep the Premises in a
reasonably safe condition. Michajlenko maintained that the defendants
breached this duty as follows:
“The Premises were in a dangerous condition because,
among other things, the Premises were undergoing
maintenance or a work of improvement and [d]efendants
set up barriers that impeded a safe pedestrian route. This
forced [Michajlenko] to take an alternative route, which
was unsafe due to parking wheel stops, curbs and other
obstructions in a poorly lighted area.”

Michajlenko contended that the unsafe condition of the Premises
created an unreasonable risk of harm and caused him to suffer injuries.
B. Defendants’ motion for summary judgment and/or summary adjudication
Defendants filed a motion for summary judgment, or in the alternative,
summary adjudication. In a brief in support of their motion, defendants
noted that in order to prevail on either a negligence cause of action or a
premises liability cause of action, Michajlenko was required to prove both
that the Premises contained a dangerous condition and that the defendants
knew or should have known about the condition. Defendants argued that
Michajlenko would not be able to establish either fact.
First, defendants argued that the undisputed material facts established
that the wheel stop over which Michajlenko tripped did not constitute a
dangerous condition because:
“The wheel stop was placed wholly within the accessible
parking stall.

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 “The parking space was compliant with [the Americans
with Disabilities Act] Accessibility Guidelines and local
Building Codes.

“The dimensions and placement of the subject wheel stop
were safe and compliant with [the Americans with
Disabilities Act] Accessibility Guidelines and local Building
Codes.

“The wheel stop was painted blue in contrast with the
surrounding pavement and walkway.

“The wheel stop was located in an area that was very well
lit and exceeded lighting recommendations for parking lots
and emergency egress.

“The wheel stop complied with local industry customs and
practices, because it was in a brightly lit area and was
painted blue.

“The wheel stop was clearly visible.” (Formatting omitted.)

Defendants also maintained that Michajlenko would not be able to
present any evidence that defendants knew or should have known that the
wheel stop might constitute a dangerous condition. In support of this
contention, defendants noted that Terramar personnel were on site daily to
observe the Premises, and that, “[a]lthough records were kept since the
property opened in 2013, there [were] no other reports of any prior trip and
fall, injury or other incident involving the subject wheel stop.”
Defendants also argued that there was no evidence that Michajlenko
had been “forced to encounter the wheel stop,” noting that “[a]lthough the
middle walkway was cordoned off with yellow caution tape [on the night of
the incident], the sidewalks and rest of the parking lot were accessible and
there were multiple alternate routes to access all areas of the parking lot.”

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 Defendants supported their motion with a declaration from Carl Beels,
a human factors and safety expert. In his declaration, Beels stated that the
parking space in which the incident occurred was compliant with the
Americans with Disabilities Act Accessibility Guidelines and local building
codes. Beels also observed that the “lighting at the subject area was more
than four times what is required or recommended for parking lots.” With
respect to the wheel stop, Beels stated that it “was contained completely
within the accessible parking space,” and that its “dimensions and
placement . . . were safe and compliant with [the Americans with Disabilities
Act] Accessibility Guidelines and local Building Codes.” According to Beels,
the wheel stop also complied with local industry customs and practice in that
“it was brightly lit and painted blue in contrast with the surrounding
pavement and walkway.”
Defendants also lodged a declaration from Terry Hall, the former
general manager of The Headquarters. Hall stated that The Headquarters
maintained records of falls and injuries occurring on the Premises and that
those records did not contain any prior reports of any incidents involving the
wheel stop at issue in this case.
Hall described the condition of the parking lot of the Premises at the
time of the incident as follows:
“Terramar . . . hired Shariden Design Asphalt Inc. to recoat
the walkway located in middle of the parking lot at The
Headquarters. As part of its work, Shariden Design
Asphalt Inc. cordoned off a walkway with yellow caution
tape. Although the middle walkway was cordoned off with
yellow caution tape on January 3, 2017, the sidewalks and
rest of the parking lot were accessible.”

Defendants also lodged excerpts of Michajlenko’s deposition testimony
and excerpts of the deposition testimonies of several of his family members

6
who were with him on the night of his fall. Michajlenko and his family
members acknowledged that, on the night of the incident, The
Headquarters’s parking lot lights were on and appeared to be working.
C. Michajlenko’s opposition
Michajlenko filed an opposition to the defendants’ motion. In his
opposition, Michajlenko argued that “Defendants created an obstacle course,
which 78[-]year-old [p]laintiff could not negotiate.” In support of this
contention, Michajlenko argued that, “[o]n the evening of the trip and fall, the
pedestrian walkway was taped-off in its entirety with caution tape
preventing its use and blocking the path to the restaurants at [T]he
Headquarters.” Michajlenko further stated that Terramar personnel were
responsible for taping off the walkway and that Hall had observed the taped-
off walkway.
Michajlenko also maintained that Terramar’s agent, a security guard,
had contributed to the creation of a dangerous condition, arguing in part:
“[A]s [Michajlenko] and his family approached the
pedestrian walkway from their vehicle,[3] a Terramar
security person, (an agent of Terramar) [citation],
instructed [Michajlenko] and his family to lift the tape,
walk under it, and cross the walkway perpendicularly to
get to the other side so that they could get to and from the
restaurants. [Citation.] To do this, they were required to
lift the caution tape above their heads while navigating a
maze of vehicle wheel[ ]stops under their feet. [Citation.]

“Upon their return to their parked vehicle, [Michajlenko]
lifted the tape to cross under it (as the Terramar security
person suggested), and immediately upon doing so, his foot
contacted a wheel stop, which he did not see, causing him

3 Michajlenko’s statement of undisputed facts states, “[Michajlenko] and
his family parked in the parking lot adjacent to The Headquarters at Seaport
Village to go to a restaurant [at The Headquarters].”
7
 to trip and fall. [Citation.] The taped-off pedestrian
walkway alone, and combined with Terramar’s suggestion
to go under the tape, at night, was negligent and created a
dangerous condition. That is, [d]efendants prevented
[Michajlenko] from taking the pedestrian walkway to his
vehicle; forced [Michajlenko] to take an unsafe route laden
with tripping hazards; and also forced [Michajlenko] to
focus on lifting the tape while tripping hazards
(wheel[ ]stops) existed under his feet. Moreover, this
accident happened at night when visibility was restricted.
[Citations.]”

Michajlenko contended that, “Terramar breached . . . its duty and
created the dangerous condition by: (1) taping off and blocking the
pedestrian walkway (which had been constructed to prevent tripping);
(2) failing to mitigate that problem, by for example, providing an alternative
route to the restaurants; and (3) instructing [Michajlenko] to lift the tape to
cross perpendicularly, which created a more dangerous situation in light of
the fact that wheel[ ]stops were located under and around the caution tape.”
Michajlenko maintained that defendants created a dangerous condition
that was not open and obvious because “[t]he wheel[ ]stops were positioned
immediately under the caution tape that [Michajlenko] was required to go
under.” In the alternative, Michajlenko argued that even if the danger posed
by the wheel stop/caution-tape configuration was “open and obvious,” the
defendants had a duty to mitigate the danger because he was “compelled to
take the dangerous, obstacle-laden path that Terramar created.”
Michajlenko further contended that the defendants had actual notice of the
dangerous condition because Hall had stated in her deposition that she had
seen the taped-off walkway on the day of the incident. Michajlenko argued in
the alternative that notice of the dangerous condition could be imputed to the

8
defendants because a jury could infer that the defendants had taped off the

walkway.4
Michajlenko supported his opposition with excerpts of his deposition
testimony and Hall’s deposition testimony.
D. Defendants’ reply
In their reply, defendants contended that Michajlenko had improperly
“changed his theory of liability from what was alleged in the pleadings.”
Specifically, defendants argued that “[n]owhere in the pleading does
[Michajlenko] assert that a dangerous condition was caused by the wheel stop
intruding into the walkway or that an unidentified person told him he could
utilize the closed walkway.” Defendants also reiterated their arguments that
the wheel stop was open and obvious, the caution tape served as notice that
the walkway was closed, and that there were multiple alternative routes to
access The Headquarters that did not involve the closed walkway.
Defendants lodged additional deposition excerpts with their reply.
Together with the deposition excerpts, defendants lodged various exhibits,
including photographs of the walkway and wheel stop at issue, as well as an
aerial photograph of The Headquarters and its parking lot and the adjacent
Seaport Village parking lot in which Michajlenko’s family parked their car on
the night of the incident.
E. The trial court’s order granting summary judgment
After a hearing, the trial court granted defendants’ motion for
summary judgment.

4 Michajlenko noted that Hall stated during her deposition that she could
not recall who had taped off the pedestrian walkway on the day of the
incident, but that ordinarily, her office would be responsible for instructing
security personnel to tape off an area that needed to be barricaded.
9
 In a minute order granting the motion, the trial court began by
providing a summary of the court’s understanding of Michajlenko’s
allegations, stating, “[Michajlenko] . . . tripped over a wheel stop that is
located within a parking space, which was painted blue. [Michajlenko]
asserts that he tripped over the wheel stop because he was forced to cross
under caution tape that was surrounding a walkway.”
Next, the trial court concluded that there was a factual dispute with
respect to whether the wheel stop was an “open and obvious” danger. The
trial court reasoned:
“Defendants . . . assert that the wheel stop, which is 8
inches wide, 5 inches high and 4 feet in length, was open
and obvious. ‘[L]andowners have no duty to warn of open
and obvious dangers on their property because such
dangers serve as warnings themselves.’ [Citation.]
[Michajlenko5] dispute[s] that the wheel stop was open and
obvious, citing the deposition of [Michajlenko].
[Michajlenko] testified that ‘[l]ate at night in the dark [he]
could not distinguish between the lines on the ground and
the painted wheel stopper.’ [Citation.] There is a factual
dispute as to whether the wheel stopper was open and
obvious under the circumstances.”

However, the trial court concluded that defendants had demonstrated
that Michajlenko could not establish that defendants had “actual or
constructive notice that the wheel stop was a dangerous condition.” The
court reasoned:
“It is undisputed that Terramar maintained records of all
reported incidents and injuries occurring at the premises
and there are no reports of a trip and fall involving the

5 While the trial court’s minute order refers to “plaintiffs’ ” opposition to
defendants’ motion for summary judgment, Michajlenko filed the only
opposition contained in the record. (Italics added.) We have edited the
minute order accordingly.
10
 wheel stop. [Citation.] It is undisputed that no lights were
burned out at the time of the incident. [Citation.] Finally,
it is undisputed that the wheel stop and lighting complied
with regulations and industry customs and practices.
[Citation.] [Michajlenko] attempts to dispute the facts by
citing to his own deposition testimony that he could not
distinguish between the lines on the ground and the
painted wheel stop[ ]. In contrast, [Michajlenko’s wife]
testified that they did not have any difficulty seeing as they
walked through the parking lot. [Citation.] [Michajlenko’s]
daughter-in-law . . . testified there was not anything that
obstructed the blue curb stops, in terms of them being
visible. [Citation.] While [Michajlenko] point[s] to [Hall’s]
testimony that she saw the taped-off walkway, Ms. Hall
stated she observed it in the day, not at night.
[Michajlenko’s] theory of a dangerous condition is
dependent on the difficulty in seeing the wheel stop.
[Michajlenko] has not raised an issue of fact that
[d]efendants were aware of the difficulty of seeing the
wheel stop.”

The trial court further concluded that there was not a triable issue of
material fact with respect to whether knowledge of the dangerous condition
should be imputed to defendants on the ground that they had created the
dangerous condition. The court reasoned:
“[Michajlenko] attempt[s] to overcome the issue of
knowledge by citing to law that indicates landowners may
be imputed with knowledge of a dangerous condition when
the premises were under the exclusive control of the
landowner. (See Getchell v. Rogers Jewelry (2012)
203 Cal.App.4th 381, 386 [‘the break room where the
accident occurred and the cleaning solution which caused
the accident were under the exclusive control of defendant
and its employees. . . . [I]t reasonably could be inferred
that defendant’s employees caused the dangerous
condition.’] Here, it is undisputed that [d]efendants had
control of the premises and that the middle walkway of the
parking lot was cordoned off with yellow caution tape.
However, [Michajlenko] [has] not raised an issue of fact

11
 that [d]efendants created the condition by forcing
[Michajlenko] to cross under the caution tape.

“While [d]efendants may have created the condition of a
wheel stop being under caution tape, this is not a condition
that invited pedestrians to approach it and cross under.
Plaintiffs could have followed a different path, rather than
go under the caution tape. To dispute [d]efendants’
evidence that the sidewalks and rest of the parking lot were
accessible and there were multiple alternate routes to
access all areas of the parking lot, [Michajlenko] cites
Ms. Hall’s testimony. [Citation.] Ms. Hall did not testify
that there were no other safe alternate routes. Rather, she
testified that there were several other routes. [Citation.]
Because [p]laintiffs had other options to access the parking
lot, [d]efendants did not create a dangerous condition
where [p]laintiffs were forced to go under caution tape at
the location of the incident. It was [Michajlenko] who
decided to go under the caution tape where he did.”

The trial court further rejected Michajlenko’s contention that
defendants were aware of a dangerous condition on the Premises based on
evidence of a statement alleged to have been made by a security guard. The
trial court reasoned:
“[Michajlenko] also argue[s] Defendants were aware of the
dangerous condition because a security guard instructed
[Michajlenko] to lift the caution tape. The cited testimony
does not support this argument. [Michajlenko]
testified that he lifted up the caution tape because he did
not want to walk into it. [Citation.] [Michajlenko] further
testified that on the way to the restaurant an individual
had told them ‘[y]ou can go this way and go to the
restaurant,’ that they did so, and that he fell when they
tried to take the same path back. [Citation.] [Michajlenko]
also testified that he ‘asked the attendants if we could cross
over because we needed to. He indicated yes.’ [Citation.]
[Michajlenko does] not cite any testimony that an
individual instructed them to go under the caution tape
where the incident actually happened rather than take an

12
 alternate route. Further, the testimony of Ms. Hall, cited
to by [Michajlenko], discusses that service providers were
expected to keep their eyes out for safety issues. Ms. Hall
does not state a security guard instructed Plaintiffs.”

The trial court ultimately concluded that Michajlenko had “not raised
an issue of fact as to whether [d]efendants had knowledge of or created a
dangerous condition,” and granted defendants’ motion for summary
judgment.
F. The judgment
The trial court entered a judgment in favor of defendants in January
2020.
G. The appeal
Michajlenko timely appeals from the judgment.
III.
DISCUSSION
The trial court properly granted defendants’ motion for summary judgment
Michajlenko claims that the trial court erred in granting defendants’
motion for summary judgment.
A. Governing law
1. The law governing summary judgment
A moving party is entitled to summary judgment when the party
establishes that it is entitled to the entry of judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) A defendant may make this showing by
demonstrating that the plaintiff cannot establish one or more elements of all
of his causes of action, or that the defendant has a complete defense to each
cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
In reviewing a trial court’s ruling on a motion for summary judgment,
the reviewing court makes “ ‘an independent assessment of the correctness of

13
the trial court’s ruling, applying the same legal standard as the trial court in
determining whether there are any genuine issues of material fact or
whether the moving party is entitled to judgment as a matter of law.’ ” (Trop
v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
“We apply the same three-step analysis required of the trial court.
First, we identify the issues framed by the pleadings since it is these
allegations to which the motion must respond. Second, we determine
whether the moving party’s showing has established facts which negate the
opponent’s claim and justify a judgment in the moving party’s favor. When a
summary judgment motion prima facie justifies a judgment, the third and
final step is to determine whether the opposition demonstrates the existence
of a triable issue of material fact.” (Hutton v. Fidelity National Title
Co. (2013) 213 Cal.App.4th 486, 493–494 (Hutton).)
2. Relevant substantive law
“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.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
With respect to a store owner’s duty of care in this context, the
Supreme Court has explained, “It is well established in California that
although a store owner is not an insurer of the safety of its patrons, the
owner does owe them a duty to exercise reasonable care in keeping the
premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200,
1205 (Ortega).)
“[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 (2019) 39 Cal.App.5th 1200, 1207–1208; see also Jacobs v. Coldwell
Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 (Jacobs)

14
[“ ‘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’ ”].)6
In addition, “because the owner is not the insurer of the visitor’s
personal safety [citation], the owner’s actual or constructive knowledge of the
dangerous condition is a key to establishing its liability. Although the
owner’s lack of knowledge is not a defense, ‘[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 known to him, he should realize as involving
an unreasonable risk to invitees on his premises. . . .” ’ ” (Ortega, supra,
26 Cal.4th at p. 1206.)
Constructive notice of a dangerous condition may be established by
evidence supporting “ ‘a reasonable inference . . . that the condition was
created by employees of the [defendant] . . . .’ ” (Getchell v. Rogers Jewelry,

supra, 203 Cal.App.4th at p. 385 (Getchell).)7
B. Application
Michajlenko contends that the trial court erred in granting summary
judgment. He argues that the record contains evidence demonstrating a
triable factual dispute with respect to whether the defendants had a duty to

6 As we explain in part III.B.3, post, notwithstanding the obviousness of
a danger, a landowner has a duty to remedy a dangerous condition where
necessity requires a person coming onto the property to encounter the
danger.

7 We assume for purposes of this decision that the case law discussed in
this section applies equally to landowners’ agents, including those entities
managing the owners’ property.
15
warn him of a dangerous condition in the parking lot of the Premises that
was not open and obvious. Michajlenko also maintains that there is a triable
issue of material fact with respect to whether the defendants had actual or
constructive knowledge of such condition. Finally, he argues that, even
assuming that the danger on the Premises was open and obvious, the
defendants had a duty to remedy the danger because “necessity” required
that he encounter the danger.
1. Defendants established that any danger presented by the wheel
stop/cordoned off pedestrian walkway was open and obvious as a
matter of law and that they therefore had no duty to warn of such
condition

a. Michajlenko’s contention
In his brief on appeal, Michajlenko argues in relevant part:

“Genuine issues of material fact exist as to whether [the]
condition of the property was open and obvious considering
the configuration of the taped-off pedestrian walkway, the
wheel[ ]stops underneath the tape and Terramar’s
instruction to go underneath the tape to cross the
walkway. . . . [T]he walkway was closed with caution tape.
[Michajlenko] was instructed to, and did, lift the caution
tape to cross the closed walkway. The problem is that
wheel stops were located under the caution tape, forcing
[Michajlenko] to lift the tape, duck under, and also navigate
through a maze of wheel[ ]stops at night. Had Defendants
offered another route without obstructions, or had they not
blocked the pedestrian walkway, this accident would not
have happened. Defendants breached their duty to provide
a safe walkway. Instead, they created an unsafe obstacle
course.” (Italics added.)

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 b. The operative complaint did not allege any theory of liability
premised on the defendants’ agent having instructed
Michajlenko to lift the caution tape and cross the cordoned
off pedestrian walkway; defendants were therefore not
required to address this theory in their motion for summary
judgment

We begin our analysis of Michajlenko’s contention by “identify[ing] the
issues framed by the pleadings since it is these allegations to which the
motion must respond.” (Hutton, supra, 213 Cal.App.4th at p. 493.) As the
court in Jacobs explained:
“The pleadings play a key role in a summary judgment
motion and ‘ “ ‘set the boundaries of the issues to be
resolved at summary judgment.’ ” ’ [Citation.] ‘[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.]’
[Citation]; 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 pleadings,’ and ‘[e]vidence
offered on an unpleaded claim, theory, or defense is
irrelevant because it is outside the scope of the
pleadings’].)” (Jacobs, supra, 14 Cal.App.5th at p. 444.)8

8 Defendants argued, both in the trial court and in their respondents’
brief on appeal, that Michajlenko had not pled any theory of liability
premised on defendants’ agent having instructed him to lift the caution tape
and cross the pedestrian walkway.
While this appeal was pending, we requested that the parties file
supplemental briefs “[a]pplying Jacobs and the law governing pleadings in
the context of summary judgment motions,” with respect to the following
questions:

17
 In Jacobs, the plaintiffs, a husband and wife, sued a real estate
company for negligence and loss of consortium. (Jacobs, supra,
14 Cal.App.5th at pp. 440–441.) The defendant had marketed a vacant
property that had a swimming pool with a diving board. (Id. at p. 440.)
While the plaintiffs were viewing the property as potential buyers, the
husband stepped onto the diving board to look over a fence. (Id. at pp. 440–
441.) The diving board collapsed, and the husband fell into the empty pool.
(Id. at p. 441.)
The defendant moved for summary judgment on several grounds,
including that there was no evidence that it had actual or constructive notice
of the allegedly dangerous condition of the diving board. (Jacobs, supra,
14 Cal.App.5th at p. 442.) After plaintiffs argued in their written opposition
to defendant’s summary judgment motion that defendant had failed to
respond to plaintiffs’ purported “ ‘allegations that the empty swimming pool
was a dangerous condition’ ” (ibid.), defendant argued that plaintiffs could
not defeat summary judgment with an unpled theory of liability. (Id. at

“Does a fair reading of the operative complaint in this case
demonstrate that [Michajlenko] alleged that defendants’
agent ‘instruct[ed] [Michajlenko] to lift the tape to cross
perpendicularly,’ as [Michajlenko] argued in his opposition
to defendants’ motion for summary judgment?
“May the trial court’s granting of summary judgment be
affirmed on the ground that defendants demonstrated as a
matter of law that [Michajlenko] could not prevail on the
claims that [Michajlenko] did allege in the operative
complaint?”
The parties complied with our request and we have considered their
supplemental briefs in resolving this appeal.
18
p. 443.) In granting summary judgment, the trial court concluded that the
plaintiffs had not alleged the “empty pool theory of liability.” (Ibid.)
On appeal, the Jacobs court concluded that the trial court had properly
determined that plaintiffs “failed to plead the empty pool theory of liability in
their complaint.” (Jacobs, supra, 14 Cal.App.5th at p. 443, capitalization &
italics omitted.) The Jacobs court reasoned in part:
“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 [defendant’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 [defendant] was
negligent with respect to the empty pool. Thus,
[defendant’s] motion for summary judgment did not need to
address that claim. (See Hutton[, supra, 213 Cal.App.4th
at p. 499] [‘[d]efendant . . . met its burden as the moving
party when it negated the sole basis of plaintiff's claims,’
and ‘[i]t was not incumbent on defendant to refute liability

19
 on some theoretical possibilities not included in the
pleadings’].)” (Id. at pp. 444–445.)

As noted in part II.A, ante, in the operative complaint, Michajlenko
alleged:
“The Premises were undergoing maintenance or
improvements at the time of the [i]ncident and the
pedestrian pathway running [n]orth/[s]outh into the retail
and restaurant establishments was closed off by yellow
tape running along the entirety of both sides of the
pedestrian pathway. This closure forced Mr. Michajlenko
to take an alternate route from the restaurants through the
parking area. That route was not safe for pedestrians.
Forced to walk outside of the pedestrian pathway due to
the obstructions, Mr. Michajlenko tripped over a vehicle
wheel stop, which was difficult to see because of darkness,
its color, and other obstructions. The wheel stop was
especially difficult to see in the darkness because it was
painted the same color blue as the painted lines outlining
the disabled parking spaces.”

Absent from Michajlenko’s complaint are any allegations of any acts
committed by defendants’ agent, much less an allegation that the defendants’
agent instructed Michajlenko to lift the yellow caution tape to cross the
cordoned off pedestrian walkway. Thus, “[t]here is no mention, suggestion, or
any facts alleged that would put . . . reasonable defendant[s] on notice that
[Michajlenko was] claiming that [defendants were] negligent” (Jacobs, supra,
14 Cal.App.5th at p. 445) based on the purported acts of their agent in
instructing Michajlenko to lift the yellow caution tape to cross the pedestrian
walkway. Accordingly, as the Jacobs court concluded with respect to the
“empty pool theory of liability” in that case (id. at p. 443), defendants’ motion
for summary judgment “did not need to address” (id. at p. 444) Michajlenko’s

20
contention that defendants’ created a dangerous condition by instructing him

to lift the yellow tape and cross the pedestrian walkway.9
We also reject Michajlenko’s contention that defendants were obligated
to address the theory that one of the defendants’ agents instructed him to lift
the yellow tape because this theory of liability was disclosed in discovery.
Michajlenko argues that “[a]n important caveat of the rule discussed in
Jacobs, is that discovery can expand and clarify the scope of the pleadings.”
(Citing Jacobs, supra, 14 Cal.App.5th at p. 445, italics added.)
The Jacobs court did not state that discovery can expand the theories of
liability in the pleadings. On the contrary, the Jacobs court stated that
discovery can clarify and narrow the scope of the pleadings:
“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 narrowing the issues made by
the pleadings”].) Plaintiffs’ responses to [defendant’s]
contention interrogatories make no mention of the empty
pool theory of liability.” (Jacobs, supra, 14 Cal.App.5th at
p. 445, italics added.)

Thus, in Jacobs, the court stated that, even assuming the plaintiffs’
complaint in that case could be read to have raised the empty pool theory of
liability,10 the defendants were not required to address that theory of

9 Defendants did not, in fact, address this theory of liability in their
motion for summary judgment. (See II.B, ante.)

10 As noted ante, the Jacobs court commented that the plaintiffs’
complaint expressly stated that one of the plaintiffs had fallen into an empty
21
liability in moving for summary judgment because the plaintiffs’
interrogatory responses “removed [any] doubt,” as to whether plaintiffs were
relying on the empty pool theory of liability. (Jacobs, supra, 14 Cal.App.5th
at p. 445.) Thus, while Jacobs stands for the proposition that discovery
responses may narrow a defendant’s burden with respect to the theories of
liability it must address in moving for summary judgment, Jacobs does not
support the proposition that discovery responses can expand the issues that a
defendant must address.
Jacobs is therefore of no assistance to Michajlenko. First, while the
complaint in Jacobs expressly stated that one of the plaintiffs had fallen into
an empty pool and thus was arguably ambiguous with respect to whether
plaintiffs were relying on an “empty pool theory of liability” (Jacobs, supra,
14 Cal.App.5th at p. 445), Michajlenko’s complaint makes no reference to a
security guard having instructed him to go under the yellow tape and
contains no allegations even arguably placing the defendants on notice that
Michajlenko was claiming that defendants were negligent based on a “theory
of liability” premised on a security guard’s instructions. (Ibid.) Further,
there is nothing in Jacobs that suggests that a plaintiff may oppose a motion
for summary judgment based on an entirely new theory of liability that is not
disclosed in the plaintiffs’ complaint merely because the theory of liability is
alluded to in discovery.
In addition, Michajlenko does not cite any case that supports the
proposition that discovery can expand the theories of liability, a contention

pool. (See Jacobs, supra, 14 Cal.App.5th at p. 444 [noting that complaint
stated, “ ‘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’ ”].)
22
that is contrary to well established case law discussing the distinct roles that
pleadings and discovery play in the summary judgment context:
“ ‘The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues: the function
of the affidavits or declarations is to disclose whether there
is any triable issue of fact within the issues delimited by
the pleadings.’ [Citations.] The complaint measures the
materiality of the facts tendered in a defendant’s challenge
to the plaintiff’s cause of action. [Citation.]” (FPI
Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367,
380.)

Accordingly, we conclude that defendants were not required to address
Michajlenko’s theory that one of the defendants’ agents instructed him to lift
yellow tape and cross under the cordoned off pedestrian walkway, and
further conclude that Michajlenko may not avoid summary judgment by
relying on that theory.
c. Defendants demonstrated, as a matter of law, that any danger
presented by the wheel stop and cordoned off pedestrian
walkway was open and obvious and that they therefore did not
owe Michajlenko any duty to warn of the condition

With respect to the theory of liability that was alleged in Michajlenko’s
complaint, defendants demonstrated the absence of a triable issue of material
fact with respect to whether any danger presented by the wheel stop and
cordoned off pedestrian walkway was open and obvious and thus, whether
they owed Michajlenko any duty to warn of the condition.
As quoted in part II.A, ante, the operative complaint alleged that
defendants’ act of cordoning off the pedestrian walkway forced Michajlenko to
take a path from the restaurant in which he encountered a wheel stop.
Michajlenko further alleged that he tripped over the wheel stop because it
was “difficult to see [due to] darkness, . . . color, and other obstructions.”

23
 In determining whether defendants demonstrated that any danger
posed by the wheel stop and cordoned off pedestrian walkway was open and
obvious as a matter of law, we begin by observing that, as described in part
II.B, ante, defendants offered a declaration from a human factors and safety
expert, Carl Beels, concerning the condition of the parking lot, including the
wheel stop over which Michajlenko tripped. Beels stated that the parking
space in which the incident occurred was compliant with the Americans with
Disabilities Act Accessibility Guidelines and local building codes. As to the
wheel stop, Beels stated that its “dimensions and placement . . . were safe
and compliant with [the Americans with Disabilities Act] Accessibility
Guidelines and local Building Codes,” and complied with local industry
customs and practice in that the wheel stop “was brightly lit and painted blue
in contrast with the surrounding pavement and walkway.”
Instead of offering “a competent expert declaration to the contrary”
(Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761–762), Michajlenko
simply asserted that he “did not see the wheel[ ]stop,” without presenting any
evidence that his failure to see the wheel stop was due to poor lighting or
other obstructions that might have constituted a dangerous condition.
With respect to lighting, Michajlenko’s family members testified that
visibility was not a problem on the night of the incident. Michajlenko himself
testified that the “lights were on,” in the parking lot. Michajlenko also stated
that he did not observe any lights in the parking lot that were burned out. In
addition, during his deposition, Michajlenko was asked, “Have you heard
from any source whatsoever that there were any lights out in the parking lot
that night?” Michajlenko responded, “No.” Further, Beels stated in his
declaration that the “lighting at the subject area was more than four times

24
what is required or recommended for parking lots.” Michajlenko presented
no contrary evidence.
With respect to obstructions, defendants presented undisputed
evidence that “[t]here were no cars parked in the accessible space [where the
wheel stop at issue was located] and the parking lot was quite empty at the
time of Mr. Michajlenko’s fall.” Michajlenko’s son, who was present at the
time of the incident, was asked during his deposition, “[Was] there anything
that would have obstructed [Michajlenko’s] view from seeing the wheel stop
as you were walking through that parking lot?” He responded, “No.”
Further, apart from the yellow caution tape, which we address below,
Michajlenko did not identify evidence of any other obstructions that could
have made the wheel stop difficult to see.
With respect to the yellow caution tape, as defendants persuasively
argue on appeal, “the yellow caution tape served as obvious notice the
walkway was closed.” (Capitalization omitted.) Michajlenko does not present
any argument to the contrary. Instead, Michajlenko argues that the
“configuration” of the wheel stop and the caution tape presented a danger to a
person attempting to go under the tape:
“The wheel[ ]stops were positioned immediately under the
caution tape that [Michajlenko] was required to go under.
This configuration created a dangerous condition that was
not obvious for [Michajlenko]. Indeed, [Michajlenko]
testified he did not see the wheel[ ]stop as he was lifting the
tape, which caused him to fall.”11 (Italics added.)

11 The quotation is taken from Michajlenko’s appellate brief at page 11.
The same quotation appears on page 5 of Michajlenko’s opposition to
defendants’ motion for summary judgment.

25
 This argument is unpersuasive because there is no evidence in the
record upon which a jury could find that the defendants’ act in cordoning off
the pedestrian walkway with caution tape “forced [Michajlenko] to navigate
through caution tape and difficult-to-see wheel[ ]stops at night,” as
Michajlenko argues on appeal. (Italics added.) To begin with, as noted
above, Michajlenko does not argue or point to any evidence suggesting that
the yellow caution tape served as an invitation for pedestrians to attempt to
cross under the tape. In addition, as the trial court properly noted, the
defendants presented evidence “that the sidewalks and rest of the parking lot
were accessible and there were multiple alternate routes to access all areas of
the parking lot.” For example, Michajlenko’s son testified in his deposition as
follows:
“Q And to your knowledge, was there anything that
prevented you, if you didn’t want to cross the security tape,
from taking the sidewalk in a westerly direction to go out
and come back in the parking lot where you brought the car
in when you came and parked it?

“A No, there wouldn’t have been.”

Hall12 also testified that there were other routes beyond the blocked off
pedestrian walkway for patrons parking their cars in either The
Headquarters parking lot or the adjacent Seaport Village parking lot to get to
the shops at The Headquarters. Michajlenko points to no contrary evidence.
In sum, there is no evidence in the record that would support a finding that
the defendants’ taping off of the walkway compelled Michajlenko to attempt
to cross under the yellow caution tape. Thus, the trial court properly
concluded, “Defendants did not create a dangerous condition where

12 As noted in part II.B, ante, Hall is the former general manager of The
Headquarters.
26
[Michajlenko was] forced to go under caution tape at the location of the
incident. It was [Michajlenko] who decided to go under the caution tape

where he did.”13
In light of the undisputed evidence recounted ante, we conclude that
defendants demonstrated that any danger presented by the wheel stop /
cordoned off pedestrian walkway was open and obvious as a matter of law.
Therefore, we further conclude that defendants demonstrated the absence of
a triable issue of material fact with respect to whether defendants breached
their duty to warn Michajlenko of nonobvious dangers on their property.
2. Defendants established that Michajlenko could not prove that
defendants had actual or constructive notice of a dangerous
condition on their property

Michajlenko contends that the trial court erred in determining that
defendants established that he could not prove that defendants had actual or
constructive notice of a dangerous condition on their property.14 Michajlenko
offers two arguments in support of his contention. Neither is persuasive.

13 As noted in part III.B.1.b, ante, defendants were not required to
demonstrate an absence of a triable issue of material fact with respect to
Michajlenko’s unpled theory that one of the defendants’ agents had
instructed to lift the caution tape and Michajlenko could not avoid summary
judgment by opposing the defendants’ motion based on this unpled theory of
liability.

14 Our conclusion in part III.B.1, ante, that defendants established that
any danger presented by the wheel stop and cordoned off pedestrian walkway
was open and obvious makes it unnecessary to address this issue. However,
we address the arguments that Michajlenko presents on appeal with respect
to this issue in the interest of completeness because his arguments are
intertwined with our conclusion that any danger presented by the wheel stop
and cordoned off pedestrian walkway was open and obvious.
27
 First, Michajlenko cites case law in which courts have concluded that,
in instances in which a defendant creates a dangerous condition, knowledge
of such condition is imputed to the defendant. (See Getchell, supra,
203 Cal.App.4th at p. 385.) Yet, the only “dangerous condition,” of which
Michajlenko contends there is evidence that the defendants created is the
taping off of the pedestrian walkway.15 However, for the reasons stated in
part III.B.1, ante, the taping off of the pedestrian walkway did not create a
dangerous condition for which the defendants had a duty to warn, and, for
the reasons stated in part III.B.3, post, the defendants had no duty to remedy
any allegedly dangerous condition caused by the taping off of the walkway.
Second, Michajlenko argues that the defendants had “actual notice of
the unsafe condition,” and cites Hall’s deposition testimony that she saw the
taped off walkway. Again, however, given our conclusion that the taping off
of the pedestrian walkway did not create a dangerous condition for which
defendants had a duty to warn or remedy, the fact that Hall had notice that
the walkway had been taped off cannot serve as a basis for the defendants’
liability.
Accordingly, we conclude that defendants established that Michajlenko
could not prove that defendants had actual or constructive notice of a
dangerous condition on their property.
3. Michajlenko has not pointed to any evidence demonstrating that
necessity required that he encounter a dangerous condition in the
parking lot

Michajlenko contends that, even assuming that the obviousness of the
danger presented by the wheel stop and the cordoned off pedestrian walkway

15 Michajlenko argues, “In light of the evidence suggesting Terramar
caused the pedestrian walkway to be obstructed, a reasonable inference can
be made that [d]efendants created the dangerous condition.”
28
relieved defendants of their duty to warn of the danger, the defendants had a
duty to remedy the danger. In support of this contention, Michajlenko cites
case law in which courts have found that a landowner owed a plaintiff a duty
to remedy a dangerous condition when necessity required the plaintiff to
encounter the danger. (Citing Martinez v. Chippewa Enterprises, Inc. (2004)
121 Cal.App.4th 1179, 1184 and Osborn v. Mission Ready Mix (1990)
224 Cal.App.3d 104.) Michajlenko argues, “In our case, necessity did in fact
require [Michajlenko] to encounter the dangerous condition.” (Italics added.)
Without citation to the record, Michajlenko asserts:
“The pedestrian path to the restaurants was blocked, there
was no sign or indication pointing to another path, and he
was forced to negotiate obstacles to cross the path to get to
the restaurants. Moreover, the Terramar security person
instructed him to lift the tape and cross under. Thus,
[Michajlenko] was compelled to take the dangerous,
obstacle-laden path that Terramar created.”

As noted in part III.B.1.c, ante, defendants offered undisputed evidence
that there were multiple routes that Michajlenko could have taken to get
from the restaurant to his family’s car that would not have required him to
attempt to cross the cordoned off pedestrian pathway. In addition, as noted
in part III.B.1.b, ante, defendants were not required to address Michajlenko’s
unpled theory that a security person instructed him to lift the yellow tape
and attempt to cross the cordoned off pedestrian path.
Accordingly, we conclude that Michajlenko has not identified any
evidence from which a jury could reasonably find that necessity required that
he encounter a dangerous condition in the parking lot. Thus, we further
conclude that there is no triable issue of fact with respect to whether
defendants breached their duty to remedy an allegedly dangerous condition
in the parking lot.

29
 IV.
DISPOSITION
The judgment is affirmed. Michajlenko is to bear costs on appeal.

AARON, J.

WE CONCUR:

O'ROURKE, Acting P. J.

GUERRERO, J.

30