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Jacobs v. Coldwell Banker Residential Brokerage Co.

California Court of Appeals, Second District, Sixth Division

July 25, 2017

JACQUES JACOBS et al., Plaintiffs and Appellants,
v.
COLDWELL BANKER RESIDENTIAL BROKERAGE COMPANY, Defendant and Respondent

         Order Published: August 14, 2017.

         Superior Court of Ventura County, No. 56-2015-00463977-CU-PO-VTA, John H. Reid, Kent M. Kellegrew, Mark S. Borrell, Judges.

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[Copyrighted Material Omitted]

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         COUNSEL

         Grassini, Wrinkle & Johnson and Brian Hong for Plaintiffs and Appellants.

         Horvitz & Levy, Lisa Perrochet, Joshua C. McDaniel; Bradley & Gmelich and Thomas P. Gmelich for Defendant and Respondent.

         Opinion by Perren, J., with Gilbert, P. J., and Tangeman, J., concurring.

          OPINION

         PERREN, J.

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

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Jacobs (Xenia),[1] 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.

         The trial court granted Coldwell's motion for summary judgment. It determined that Coldwell was entitled to judgment on plaintiffs' claim regarding the negligent condition of the diving board. In opposition to the motion, plaintiffs argued that they also were claiming that the empty pool was a dangerous condition. The court rejected this unpled, undisclosed theory of liability. It also concluded that even if the theory had been pled, Coldwell could not be held liable for failing to remedy the dangerous condition of the empty pool because Jacques's accident was not reasonably foreseeable. We affirm for the same reasons.

         FACTS AND PROCEDURAL HISTORY

         Before listing the subject property for sale, Dianne Garnett, a licensed real estate agent, visually inspected the property. After examining each room in the house, Garnett spent 20 to 30 minutes inspecting the backyard, including the diving board. She did not observe any breaks, cracks or other visible damage in the diving board. The only dangerous condition she observed was the empty swimming pool.

         Garnett retained Clearflo Pools (Clearflo) to inspect the swimming pool and related equipment and to provide her with a report detailing any necessary repairs. Clearflo's postinspection report did not identify any concerns about the diving board.

         Before 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."

         Jacques was interested in purchasing the property as an investment. On August 30, 2014, he and Xenia met their real estate agent to view the property. After looking around the house, they all went outside and walked up to a five-foot-tall wrought iron fence which enclosed the swimming pool area. The agent unlatched the gate, and they entered the pool area.

         Jacques, a licensed contractor who regularly performs tile work in and around swimming pools, noticed that the backyard swimming pool was

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empty. Jacques knew he should stay away from the edge of the empty pool because " it would hurt if [he] fell in."

         Jacques wanted to see over the fence to assess whether someone from the adjacent road could jump over the fence into the backyard. To get a better view, he stood on the base of the diving board. After standing on the diving board for 10 to 30 seconds, Jacques felt the board break loose from its base. The ...


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