California Court of Appeals, Second District, Sixth Division
Published: August 14, 2017.
Court of Ventura County, No. 56-2015-00463977-CU-PO-VTA, John
H. Reid, Kent M. Kellegrew, Mark S. Borrell, Judges.
[Copyrighted Material Omitted]
Wrinkle & Johnson and Brian Hong for Plaintiffs and
& Levy, Lisa Perrochet, Joshua C. McDaniel; Bradley & Gmelich
and Thomas P. Gmelich for Defendant and Respondent.
by Perren, J., with Gilbert, P. J., and Tangeman, J.,
Coldwell Banker Residential Brokerage Company (Coldwell)
marketed for sale a vacant, bank-owned property located in
Simi Valley. The property had a backyard with an empty
swimming pool and diving board. While plaintiffs Jacques
Jacobs (Jacques) and his wife, Xenia
Jacobs (Xenia), were viewing the property as potential
buyers, Jacques stepped onto the diving board to look over
the fence. The diving board base collapsed and Jacques fell
into the empty pool. Plaintiffs sued Coldwell for negligence
and loss of consortium.
trial court granted Coldwell's motion for summary
judgment. It determined that Coldwell was entitled to
judgment on plaintiffs' claim regarding the negligent
condition of the diving board. In opposition to the motion,
plaintiffs argued that they also were claiming that the empty
pool was a dangerous condition. The court rejected this
unpled, undisclosed theory of liability. It also concluded
that even if the theory had been pled, Coldwell could not be
held liable for failing to remedy the dangerous condition of
the empty pool because Jacques's accident was not
reasonably foreseeable. We affirm for the same reasons.
AND PROCEDURAL HISTORY
listing the subject property for sale, Dianne Garnett, a
licensed real estate agent, visually inspected the property.
After examining each room in the house, Garnett spent 20 to
30 minutes inspecting the backyard, including the diving
board. She did not observe any breaks, cracks or other
visible damage in the diving board. The only dangerous
condition she observed was the empty swimming pool.
retained Clearflo Pools (Clearflo) to inspect the swimming
pool and related equipment and to provide her with a report
detailing any necessary repairs. Clearflo's
postinspection report did not identify any concerns about the
the property was viewed by any potential buyers, Garnett
prepared an MLS (multiple listing service) listing for the
property. The listing stated: " [P]lease use CAUTION
around the empty pool."
was interested in purchasing the property as an investment.
On August 30, 2014, he and Xenia met their real estate agent
to view the property. After looking around the house, they
all went outside and walked up to a five-foot-tall wrought
iron fence which enclosed the swimming pool area. The agent
unlatched the gate, and they entered the pool area.
a licensed contractor who regularly performs tile work in and
around swimming pools, noticed that the backyard swimming
empty. Jacques knew he should stay away from the edge of the
empty pool because " it would hurt if [he] fell
wanted to see over the fence to assess whether someone from
the adjacent road could jump over the fence into the
backyard. To get a better view, he stood on the base of the
diving board. After standing on the diving board for 10 to 30
seconds, Jacques felt the board break loose from its base.