Schubert v. Mann Family Partnership CA1/2

Filed 7/22/13 Schubert v. Mann Family Partnership CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JAMES SCHUBERT, Plaintiff and Appellant, A136802 v. NATHAN AND GERTRUDE MANN (Alameda County FAMILY PARTNERSHIP, Super. Ct. No. RG11571036) Defendant and Respondent.

Plaintiff James Schubert (Schubert) sued defendant Nathan and Gertrude Mann Family Partnership (the partnership) for premises liability after he tripped over a stone on property owned by the partnership, causing him to fall and drop a valuable piece of art he was carrying. In a bench trial, the trial court granted the partnership‟s motion for judgment. Schubert appeals. We affirm. I BACKGROUND1 This dispute arises from an incident that occurred on April 15, 2009, in front of the Thornhill Café in Oakland, which café is located on property owned by the partnership. On that day, Schubert arranged to meet art restorer Bonnie Boskin in front of the café in order to retrieve an original Joan Miró plate that he had previously given to Boskin for

1 We derive the facts concerning the incident largely from Schubert‟s trial brief. As will be discussed post, the record does not contain a reporter‟s transcript, and we thus do not know what evidence Schubert introduced at trial.

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restoration. Plate in hand, Schubert left the café through a gap in the shrubbery, tripped over a prefabricated garden stone, and fell across the pathway, causing the bubble-wrapped plate to fly into the street and break into pieces.2 On April 14, 2011, Schubert filed, in propria persona, a complaint alleging one cause of action for negligence against the partnership. The partnership answered, and the matter proceeded through discovery. On September 18, 2012, Keith R. Oliver of the Oliver Law Corp. substituted in as counsel for Schubert. Ten days later, a bench trial commenced before the Honorable Delbert Gee. According to the minutes, Schubert was the first to testify, and his direct examination lasted for 48 minutes, at the conclusion of which the partnership moved for what is characterized in the minutes as an oral motion for nonsuit.3 Following the motion, Judge Gee permitted Schubert‟s counsel to reopen Schubert‟s direct examination. Moments later, the court broke for the noon recess. After reconvening at 2:00 p.m., Judge Gee and counsel discussed the partnership‟s motion, following which Judge Gee ordered the parties to file briefs on the subject on October 1, 2012. Schubert then returned to the stand, where he was examined by his attorney for 23 more minutes before being excused. The case was then continued to October 1, 2012. On October 1, 2012, both parties filed the briefing as ordered. As argued by the partnership, it owed Schubert no duty of care because his evidence established that the stone over which he tripped was “open and obvious” such that the partnership had no duty to warn him about it. Alternatively, the partnership contended that Schubert‟s evidence did not establish a prima facie case of negligence/premises liability because there was no evidence the partnership had any notice of a problem with the planter strip.