Judge Anne Hwang, Case Number: 20STCV42576, Date: 2023-08-24 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On November 5, 2020, Plaintiff Marz Holden-Montini (“Plaintiff”), through his guardian ad litem Beth Holden (“Holden”), filed this action against Defendants Benjamin Reininger, Caroline Reininger, Reine Paradis, Carl Lindstrom, and Does 1 to 20 (collectively, “Defendants”), asserting two causes of action for (1) general negligence and (2) premises liability.

The Complaint alleges the following. Defendants owned, operated, managed, maintained, and controlled a property at or near 6231 South Manhattan Place, Los Angeles, CA 90047 (the “Property”). The roof of the Property was in a dangerous condition because it was exposed, unprotected, and unguarded. On June 27, 2020, Plaintiff and a group of friends were on the rooftop of the Property, but as Plaintiff was walking, he fell off the roof, sustaining significant injuries.

Nonparty Antoine Montini (“Petitioner” or “Montini”) now moves for an order removing Holden and adding him as Plaintiff’s guardian ad litem (“GAL”). In the alternative, Petitioner seeks an order adding him as co-GAL with Holden. Holden opposes the motion.

Petitioner also moves to seal portions of his motion to remove Holden as Plaintiff’s GAL. No opposition to the motion has been filed.

Plaintiff, through his GAL Holden, moves to seal portions of his opposition to Petitioner’s motion to remove Holden as Plaintiff’s GAL. No opposition to the motion has been filed.

I. Motion to Remove Beth Holden and Appoint Antoine Montini as Guardian Ad Litem; or in the Alternative, Add Antoine Montini as Co-Guardian Ad Litem

On May 9, 2023, Petitioner filed “Evidentiary Objections to Declarations and Exhibits Offered by Plaintiff in Opposition to Petitioner’s Motion to Replace Beth Holden as Guardian Ad Litem.” On August 18, 2023, Petitioner withdrew his objections.

“When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” (Code of Civ. Proc. § 372(a)(1).)

“If application is made for appointment of a guardian ad litem for a person…, and that person has a guardian or conservator of the estate, the application may be granted only if all of the following occur: …(ii) The application discloses the existence of a guardian or conservator of the estate. (iii) The application sets forth the reasons why the guardian or conservator of the estate is inadequate to represent the interests of the proposed ward in the action. …” (Code of Civ. Proc. § 372(a)(2)(B).)

“Before a court appoints a guardian ad litem pursuant to this chapter, a proposed guardian ad litem shall disclose both of the following to the court and all parties to the action or proceeding: (1) Any known actual or potential conflicts of interest that would or might arise from the appointment. (2) Any familial or affiliate relationship the proposed guardian ad litem has with any of the parties.” (Code of Civ. Proc. § 372(d).)

“A trial court has discretion to accept or deny an application for appointment of a guardian ad litem. …An order appointing a guardian ad litem or revoking an appointment is not appealable. … A guardian ad litem is not a party to the action, but merely a party’s representative, an officer of the court. He is like an agent with limited powers. The duties of a guardian ad litem are essentially ministerial. A guardian ad litem’s role is more than an attorney’s but less than a party’s.” (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149 (citations and quotations omitted) (finding the Durable Power of Attorney Act creates a rebuttable presumption in favor of a designated attorney in fact and conservator nominee for appointment as guardian ad litem).)

“The statutes regarding appointment of guardians ad litem were enacted to protect minors and insane and incompetent persons—not to preclude them from their legal rights.” (Briggs v. Briggs (1958) 160 Cal.App.2d 312, 319.) “A guardian ad litem represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself in those proceedings. In the adversarial context, the guardian ad litem’s function is to protect the rights of the minor, control the litigation, compromise or settle the action, control procedural steps incident to the conduct of the litigation, and make stipulations or concessions in the minor person’s interests. In such cases, the guardian ad litem’s role is more than an attorney’s but less than a party’s. The GAL is responsible for assisting the attorney in protecting the rights of the minor. But the attorney does not represent the GAL, who is not a party to the action; thus the attorney represents the minor.” (A.F. v. Jeffrey F. (2022) 79 Cal.App.5th 737, 747 (citations and quotations omitted).) “When considering the appropriate guardian ad litem for a minor plaintiff in a civil lawsuit, the central issue is the appropriate protection of the minor’s legal right to recover damages or other requested relief. Further, when there is a potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving a just and speedy determination of the action, a court has the right to select a guardian ad litem who is not a parent if that guardian would best protect the child’s interests. The court is, in effect, the guardian of the minor and the guardian ad litem is but an officer and representative of the court.” (Id. (citations and quotations omitted).)

C. Request to Appoint Co-Guardians Ad Litem or Appoint Petitioner as Sole Guardian Ad Litem

Petitioner moves the Court for an order removing Holden as Plaintiff’s GAL, arguing (among other things) that Holden misrepresented to this Court that she was Plaintiff’s “sole” conservator when a probate court appointed both Petitioner and Holden as Plaintiff’s co-conservators.

The Court takes judicial notice of this case’s records pursuant to Evidence Code section 452, subdivision (d).

The Court notes that it granted Holden’s Application and Order for Appointment of Guardian Ad Litem-Civil Ex Parte on December 9, 2020. Attached to that application were Letters of Temporary Conservatorship in Los Angeles Superior Court Case Number 20STPB05936 (the “Letters”). The Letters were filed August 31, 2020, and were to expire December 15, 2020.

Petitioner’s counsel testifies that on November 3, 2020 (before Holden filed the application to be appointed as GAL), the probate court appointed Holden and Petitioner as temporary co-conservators for Plaintiff, and on December 31, 2020 (after the Court approved Holden’s GAL application), appointed Holden and Montini as permanent co-conservators. (Declaration of Matthew R. Stidham, filed April 21, 2023, ¶¶ 11, 14.)

Holden argues that Montini had notice of the guardian ad litem application and that Montini’s temporary conservator status was not legally in effect until December 31, 2020. (Holden’s Supp. Br. at pg. 3.) However, Holden’s evidence establishes that “[o]n November 3, 2020, the Probate Court vacated the August 28, 2020 order appointing Bether as sole Temporary Conservator and the August 31, 2020, Letters of Temporary Appointment and appointed both Antoine and Beth. On December 15, 2020, a hearing was held and the Court ordered and appointed Beth and Antoine as permanent Co-Conservators for Marz’s person and estate.” (Declaration of Adam Pollack ¶ 6.) Holden attached the vacated Letters of Temporary Appointment in her application for appointment as GAL.

The Court grants the request to remove Holden as GAL. The co-conservatorship is relevant to the determination of the proper GAL in this case. Indeed, the initial application for appointment of GAL was rejected due to lack of proof of a conservatorship (or medical proof that Marz is incompetent and requires a guardian). (See Notice of Rejection of Electronic Filing Dated 11/13/20.) Importantly, Montini and Holden are currently working together as co-conservators for their son. (Declaration of Adam Pollack ¶ 5.) “The current status of the conservatorship is that both Co-Conservators are acting jointly and are in good standing. The Co-Conservators are attempting to work through an accounting for the estate portion of the Conservatorship.” (Id. at ¶ 7.) Given their current responsibilities to work together in the best interests of their son, the Court finds that Marz’s interests in this litigation would be best served by both Co-Conservators. The Court therefore does not “void” the appointment of the GAL but rescinds the action previously taken, and the Court does so in its supervisory authority to monitor the GAL throughout the pendency of the case.[1] Accordingly, going forward, Marz will appear in this action by and through his Co-Conservators. To the extent that the Court determines that the Co-Conservators are taking actions inimical to the legitimate interests of Marz, the Court retains the supervisory authority to appoint a third-party guardian ad litem to appear for Marz rather than his Co-Conservators.[2]

The California Supreme Court has held that the First Amendment provides “a right of access to ordinary civil trial and proceedings.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212.) The court further noted its belief that “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system.” (Id. at p. 1210.) There is a presumption of openness in civil court proceedings. (Id. at p. 1217.) Therefore, it is up to this Court to determine if that presumption has been overcome.

Courts must find compelling reasons, prejudice absent sealing and the lack of less-restrictive means, before ordering filed documents sealed. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1246; KNBC-TV, 20 Cal.4th at 1208-1209 n. 25; Champion v. Superior Court (1988) 201 Cal.App.3d 777, 787.)

A proposed sealing must also be narrowly tailored to serve the overriding interest, such as by sealing only portions of pleadings or redacting particular text that refer to the confidential information. (In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1052, 1070.)

“The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

An application to seal must be accompanied by a declaration containing facts sufficient to justify sealing. (Cal. Rules of Court, rule 2.551(b)(1) [“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing” (emphasis added)].)

“[A] reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns. Such a process is impossible without (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed upon the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm him and how.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894 [emphasis added] (“H.B.”).)

“[A]t a minimum … the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” (H.B., supra, 151 Cal.App.4th at p. 894 [emphasis added].)

Here, both Montini and Holden request that substantial portions of the pleadings be sealed. Montini argues that sealing is necessary to prevent prejudice on three grounds: (1) preventing disclosure of confidential and privileged information and documents, (2) protecting the privacy rights of the parties, and (3) protecting Plaintiff’s right to a fair trial. (Montini Supp. Br. at pgs. 4-11.) Holden makes similar arguments. (Holden Supp. Br. at pgs. 8-10.)[3] Both Montini and Holden argue that Plaintiff’s interests will be significantly prejudiced if the records are not sealed. No opposition has been filed, despite the issue being raised by the Court at the prior hearing on August 11, 2023. Accordingly, because there is currently no information before the Court demonstrating that Plaintiff’s interests will not be prejudiced (or regarding the other factors in Rule 2.550(d) to aid the Court in weighing any competing interests), the Court conditionally grants the motions to seal.

Accordingly, the motion to remove Beth Holden as guardian ad litem is granted. Plaintiff shall file an amended complaint within ten (10) days changing the caption of the case to reflect the Plaintiff is Marz Holden-Montini, by and through his Co-Conservators Beth Holden and Antoine Montini, and providing notice of service information to all parties.

Petitioner Montini shall provide notice of the Court’s ruling and file a proof of service of such.

Plaintiff Marz Holden-Montini, by and through his guardian ad litem, Beth Holden (“Plaintiff”) filed this action on November 5, 2020, alleging causes of action for negligence and premises liability against defendants Benjamin Reininger (“Reininger”), Caroline Reininger, Reine Paradis, Carl Lindstrom, and Does 1 to 20 in connection with an injury that occurred at a property on June 27, 2020.

On June 9, 2023, Reininger filed a motion for summary judgment, or in the alternative, summary adjudication. On August 8, 2023, Plaintiff opposed the motion. On August 17, 2023, Reininger filed a reply.

Defendant objects that Plaintiff’s opposition is procedurally defective. While the Court agrees, the Court exercises its discretion to consider the opposition. Defendant also objects to Plaintiff’s additional material facts and supporting evidence. The Court declines to rule on the objections because consideration of the additional material facts and supporting evidence does not change the Court’s ruling.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62) [citing Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) “[T]he elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination.” (Vasquez v. Residential Invs., Inc. (2004) 118 Cal.App.4th 269, 278) [citing Andrews v. Wells (1988) 204 Cal.App.3d 533, 538].)

Reininger moves for summary judgment, or in the alternative, summary adjudication, on the grounds that: (1) Plaintiff’s causes of action for general negligence and premises liability fail as a matter of law because Plaintiff cannot establish that Reininger failed in his limited duty; and (2) Plaintiff’s causes of action for general negligence and premises liability fail as a matter of law because Plaintiff cannot establish that Reininger breached a duty of care to Plaintiff since he did not have actual or constructive notice of an unsafe condition.

Reininger argues that the exposed edge of the rooftop is not a concealed or unsafe condition as it is open and obvious.

Generally, a defendant is “no[t] liable for injury resulting from an obvious danger or one that could have been observed had [Plaintiff] exercised ordinary care . . . .” (Mula v. Meyer (1955) 132 Cal.App.2d 279, 287.)

To establish negligence, a plaintiff must prove duty, breach of duty, causation and damages. Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors. These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty. The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.

(Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].) “Foreseeability of harm is typically absent when a dangerous condition is open and obvious. 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. In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.” (Id. at p. 447 [cleaned up].) Similarly, in Krongos, the Court of Appeal held that “[g]enerally, 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.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

“However, this is not true in all cases. It 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. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger may lead to the legal conclusion that the defendant owed a duty of due care to the person injured.” (Krongos, supra, 7 Cal.App.4th at 393 [cleaned up].) Stated differently, “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184.)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but if “if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122.)

- Reininger is the proper owner of the subject property. (UMF 2; Exh. A at 35:12-22; Exh. C at 11:20-25.)

- The subject property is an industrial/commercial use building. (UMF 3; Exh. A at 38:2-15, 133:12-19, 122:21-24; Exh. C at 16:16-24.)

- There was a skylight in the unit, with metal bars installed blocking access to the skylight. (UMF 8; Exh. A at 134:19-135:3; Exh. C at 14:19-15:4, 18:23-19:16, 20:22-21:1, 25:6-11.)

- Prior to the party, the Co-Defendants cut and removed a piece of the metal security bars in front of the skylight within the unit. (UMF 9; Exh. A at 135:1-18; Exh. C at 18:9-21, 25:6-11, Exh. E at 68:16-69:7, Exh. G at 92:17-93:3.)

- The metal security bars were later found by Mr. Reininger within the unit after the Incident. (UMF 11; Exh. C at 24:23-25:19.)

- Along with the Co-Defendants, the guests at the party, including the Plaintiff, gained access to the roof through the skylight using a ladder supplied by Co-Defendants. (UMF 12; Exh. H at Response 7; Exh. E at 156:8-19, 159:5-15, 148:1-7, 148:14-21, 153:20-24.)

- The Co-Defendants did not inform, either actually or constructively, Mr. Reininger, nor his agents, that they were accessing the roof of the Subject Property at any point, until after the Incident. (UMF 19; Exh. E at 171:-18-172:4; Exh. A at 76:21-77:2, 78:3-9, 142:18-143:6; Exh. G 71:12-72:5, 103:3-12, 63:1-22; Exh. C at 23:19-21; Exh. J at 169:22-25, 170:4-13, 26:23-27:15.)

- The Co-Defendants did not inform Mr. Reininger, or his agents, that they had removed the metal bars in front of the skylight within the unit, until after the Incident. (UMF 20; Exh. C at 18:4-19:20, 20:22-21:1; Exh. G at 58:20-23, 93:5-8, Exh. E at 172:11-14, 119:7-16; Exh. J at 171:5-172:9, 32:8-16.

- The metal skylight bars were installed to block burglars from accessing the unit from the roof, not to block access to the skylight from the interior. (PUMF 8; Exh. 1 at 45:12-18.)

- Co-Defendant Lindstrom removed the metal bar in front of the skylight several months before the subject party. (PDMF 9; Exh. 1 at 64:1-12.)

- Reininger and his agents would have had constructive notice of the metal bar removal by way of seeing Co-Defendants on the roof in the months preceding the subject incident and deducing the tenants gained access via the skylight or the exterior method. (PDMF 24; Exh. 1 at 64:1-12.)[5]

- Co-Defendants and maintenance men routinely accessed the roof via ladder to the first story roof and utilization of unlocked service ladders attached to the building. In fact, Reininger assumed this was how they gained access on the night of the subject incident. (PDMF 29; Exh. 1 at 26:25-29:1; Exh. 4 at 138:20-25.)

- Lindstrom installed security cameras on the roof of unit 101 two years before the June 27, 2020 incident. (PUMF 28; Exh. 1 at 46:18-47:1.)

- Reininger or his maintenance team went on the roof at least once a year. (PUMF 30; Exh. 3 at 57:10-19; 39:19-40; Exh. 4 at 76:6-15.)

- Prior to the night of the incident, Defendant tenants Lindstrom and Gonnet estimate they had been on the roof on fifteen prior occasions. (PUMF 34; Exh. 8 at 28:17-23; Exh. 1 at 43:20-44:7.)

Reininger argues that the metal bars make clear that the roof is not an occupiable space intended for use by the public, and that the only access to the roof was created by Co-Defendants when they removed a portion of the security bars and installed a personal ladder.[6]

The parties’ respective briefings addressed the case of Montes v. Young Men’s Christian Assn. of Glendale, California (2022) 81 Cal.App.5th 1134, which the Court finds to be dispositive on this issue. In Montes, the decedent, while intoxicated, climbed onto the roof of his apartment building and fell to his death. (Id. at 1137.) The issue decided in Montes was whether, under the circumstances, the defendant owner of the apartment building owed a duty of care to the decedent, which the Court of Appeal held it did not and affirmed the trial court’s order granting summary judgment in favor of the defendant. (Id.) The Court of Appeal held that:

“Plaintiffs insist that ‘foreseeability cannot be denied’ because of the desk clerk's testimony that he had heard of people going on what he assumed to be the flat part of the roof. Even without the desk clerk's testimony, it is indisputable that defendant must have known, and intended that people would occasionally access the roof, for example, to make repairs. Otherwise, there would not have been stairs to the fifth floor leading to nothing but a small door giving access to the roof alcove where there was a short ladder leading up to the roof. But that fact does not create a material disputed fact that Mr. Montes's fatal fall from the open and obviously steep sloping roof with broken and slippery Spanish tiles was reasonably foreseeable. It is irrelevant whether defendant could have taken the precautions plaintiffs now suggest because defendant had no duty to do so.

This case turns on whether it was ‘foreseeable that, because of necessity or other circumstances, a person may choose to encounter the [open and obvious] condition.’ (Jacobs, supra, 14 Cal.App.5th at p. 447, 221 Cal.Rptr.3d 701.) Here, there was no necessity nor any other circumstance that made it foreseeable Mr. Montes would ‘choose to encounter’ the dangerous roof. As in Jacobs, Mr. Montes ‘‘was neither required nor invited’” to ‘‘expose himself to the risks associated with’ ” an open and obvious danger. (Id. at p. 448, 221 Cal.Rptr.3d 701, italics added.) As in Jacobs, ‘as a matter of law it was not foreseeable that he would knowingly embrace an entirely obvious risk by voluntarily’ encountering the danger. (Id. at pp. 448–449, 221 Cal.Rptr.3d 701.)

The law, as we have just described it, is that defendant owed no duty to do anything to protect Mr. Montes from his voluntary, unnecessary, and uninvited risk taking. (Cf. Edwards v. California Sports, Inc., supra, 206 Cal.App.3d at p. 1288, 254 Cal.Rptr. 170 [‘There is a limit as to how far society should go by way of direct governmental regulation of commercial and private activity, or indirect regulation thereof through the tort system, in order to protect individuals from their own stupidity, carelessness, daring or self-destructive impulses.’].) That limit—and the rule articulated in Jacobs and other cases about open and obvious dangers—applies here.”

Here, as in Montes, the issue is whether it was “foreseeable that a plaintiff would ‘choose to encounter’ an obviously dangerous condition.” (Montes, 81 Cal.App.5th at 1140.) The only relevant evidence set forth by Plaintiff as to Defendant’s knowledge is that a security camera was installed on the roof a couple years prior, and that the tenants removed the metal bar from the skylight a few months prior to the subject incident.[7] However, Plaintiff has not set forth evidence that Defendant knew or should have known his tenants placed the security camera on the roof, and that this meant his tenants were accessing the roof.[8] Similarly, regarding the removal of the metal bar, Plaintiff does not set forth evidence that Reininger either knew or should have known that his tenants removed the metal bars, and that doing so meant his tenants were in fact choosing to encounter the dangerous condition.

Plaintiff’s attempts to distinguish Montes are unavailing. Even there, the Court of Appeal found that “it is indisputable that defendant must have known, and intended that people would occasionally access the roof, for example, to make repairs. … But that fact does not create a material disputed fact that Mr. Montes’s fall from the open and obviously steep sloping roof with broken and slippery Spanish tiles was reasonably foreseeable. It is irrelevant whether defendant could have taken the precautions plaintiffs now suggest because defendant had no duty to do so.” (Montes, 81 Cal.App.5th at 1142.) Here, Plaintiff takes issue with the difference in the nature of the roof.[9] However, here, there was openly and obviously no railing around the rooftop of a two-story building. Plaintiff does not appear to dispute that the “unguarded, exposed edge of the roof” was an open and obvious danger. Without any foreseeability that his tenants or their invitees were spending time on the roof, Reininger had no duty to take the precautions suggested by Plaintiff.

- Neither Mr. Reininger, nor his agents, learned of the Incident until after it occurred. (UMF 17; Exh. C at 21:19-22:9.)

- The Co-Defendants did not inform Mr. Reininger, nor his agents, that they were hosting a dinner party on the roof of the Subject Property. (UMF 18; Exh. E at 171:10-13, Exh. J at 167:4-168:8; 169:15-21; 170:4-13; 172:10-173:5.)

- Co-Defendants never asked Mr. Reininger or his employees, for permission to access the roof, remove the bars, or have the party. (UMF 21; Exh. E at 171:14-172:4, 172:11-14; Exh. A at 76:21-77:2, 81:17-82:7, 143:14-144:3; Exh. J at 169:22-170:8, 171:5-13.)

- Neither did Mr. Reininger grant written permission to access or enter the roof. (UMF 22; Exh. E at 172:22-24; Exh. G at 57:10-19; Exh. J at 173:6-24.)

- Mr. Reininger, and his agents, conducted routine checks and repairs to the roof of the Subject Property. (UMF 23; Exh. A at 76:11-11:-15, 21:2-8, 28:12-29:3, 73:7-16, 117:18-119:11, 62:21-63:2, 142:5-16; Exh. C 14:9-12)

- Neither Mr. Reininger, nor his agents, knew about the removed metal security bars until they were informed by the Co-Defendant Lindstrom following the Incident. (UMF 24; Exh. C at 18:4-19:14; Exh. E at 122:15-25, 123:8-124:24.)

- The only access to the second-floor roof, prior to the removal of the bars, is via maintenance ladders from the first-floor roof to the second-floor roof. (UMF 27; Exh. A at 137:22-139:22.)

- To access the maintenance ladders, a personal ladder would need to be propped against the first-floor wall, to reach the first-floor roof. (UMF 28; Exh. A at 77:16-78:2, 137:22-139:22.)

- There was no access to the roof within the unit prior to the removal of the bars. (UMF 29; Exh. A. at 77:19-22; Exh. C at 14:15-25.)

- Reininger only had knowledge of the cut skylight bar from a phone conversation and not an in-person inspection. (PDMF 10; Exh. 1 at 119:11-120:8.)

- Reininger has testified that permission for parties would not have been necessary. (PDMF 21; Exh. 4 at 89:3-15.)

- No system was in place such that Benjamin Reininger or Dulce Johnson would go to the subject property to check to see if the tenants were sleeping over. Reininger would only visit the property if someone called him with a problem or to tour it with a prospective tenant. (PUMF 21; Exh. 2 at 50:10-14; Exh. 4 at 48:1-15.)

- Defendants were able to violate many of their lease terms without consequence, [including…] frequently accessing the roof, and installing security cameras on the roof. (PUMF 25; Exh. 4 at 157:2-12; 157:23-158:7.)

- Lindstrom installed security cameras on the roof of unit 101 two years before the June 27, 2020 incident. (PUMF 28; Exh. 1 at 46:18-47:1.)

- Reininger or his maintenance team went on the roof at least once a year. (PUMF 30; Exh. 3 at 57:10-19; 39:19-40; Exh. 4 at 76:6-15.)

- Prior to the night of the incident, Defendant tenants Lindstrom and Gonnet estimate they had been on the roof on fifteen prior occasions. (PUMF 34; Exh. 8 at 28:17-23; Exh. 1 at 43:20-44:7.)

As an initial matter, the Court notes that many of Reininger’s arguments regarding actual or constructive knowledge are the same arguments with regard to the foreseeability of a plaintiff choosing to encounter the dangerous condition. Accordingly, the Court has also considered the facts and arguments here with regard to Defendant’s argument about the open and obvious nature of the dangerous condition. The only remaining issue is whether Reininger had a duty to inspect, as Plaintiff seems to suggest. (Opposition at pg. 1 (“Defendant cannot claim that he lacked notice of the tenants’ residential status and frequent roof-access while simultaneously admitting he never conducted inspections of the subject property.”) However, Plaintiff does not explain how more frequent inspections of the roof would have provided Defendant with knowledge that people were having unauthorized parties on the roof.

Defendant has set forth sufficient evidence to establish that there are no triable issues of material fact that he had actual or constructive knowledge that his tenants or their invitees would access the roof. Plaintiff has set forth evidence that the tenants went on the roof often and had parties there. However, Plaintiff has not set forth evidence that Defendant knew or should have known that was happening. Accordingly, Plaintiff has not set forth any triable issues of material fact as to Defendant’s actual or constructive knowledge.

The Court GRANTS Defendant Benjamin Reininger’s motion for summary judgment. The Court further DENIES Defendant Benjamin Reininger’s alternative motion for summary adjudication as moot.

Defendant Benjamin Reininger is to give notice of this order and to file proof of service of same.

[1] At the previous hearing on this motion, Holden expressed concern that voiding the appointment of Holden as GAL would somehow require the litigation to commence again from the beginning. The Court expressly is not “voiding” the appointment as of the time of the appointment, particularly because, as Holden argues, Montini had notice and took no action. (See Holden’s Supp. Br. at pgs. 3-5.) The Court is simply taking action now, based on information currently before it.

[2] Holden argues that Montini has a conflict of interest. (Holden’s Opp. at pgs. 7, 11.) However, Holden cites to no evidence suggesting that Montini would put these interests above the interests of Marz or would otherwise be unable to properly protect Marz’s interests and rights. To the extent that there becomes evidence of a conflict between Montini’s personal interests and his obligation to achieve a just and fair determination of this action on behalf of his son, the Court will appoint a guardian ad litem.

[3] The initial motions to seal were deficient because they did not provide specific enumeration of the facts sought to be withheld and the specific reasons for withholding them. Holden and Montini have submitted supplemental briefing which now addresses these issues.

[4] Plaintiff argues that Defendant “had a duty to make sure his industrial tenants were not violating their industrial leases by way of permanent residence and violations of all other enumerated lease terms.” (Opposition at pg. 1.) However, the complaint alleges that defendants “failed to lock access to the rooftop, post warning signs on the edges or at the entry to the roof, or install permanent railings around or guards surrounding the rooftop. At all relevant times, the Subject Premises was in a dangerous and defective condition. The unsafe condition included, but was not limited to, the exposed, unprotected, unguarded, edge of the rooftop which created an unreasonable risk of harm to others.” (Complaint at GN-1.) The complaint did not allege, and Plaintiff does not now explain how, a breach of any duty regarding tenants residing in an industrial building is the proximate cause of his injuries. A duty to ensure the safety of the area in which tenants were living does not necessarily include a duty to ensure the safety of a separate area – namely, the roof.

[5] The evidence set forth by Plaintiff in support of this fact does not establish that Defendant saw Co-Defendants on the roof in the months preceding the incident.

[6] Reininger also argues a number of other facts not listed in his separate statement. (See Motion at pgs. 13-14.)

[7] Plaintiff also argues that Defendant “had constructive knowledge of the tenants’ roof access through their conspicuous presence on the roof on 15 prior occasions and over the span of their 5-6 year residency.” (Opposition at pg. 6.) However, Plaintiff presents no evidence that Defendant knew or should have known about this “conspicuous presence.” There is no evidence, for example, that Defendant was there during any of these activities. Plaintiff also relies heavily on Los Angeles Department of Building and Safety notices, but does not explain how notices of parties or illegal residencies gives rise to notice of individuals on the roof. (Opposition at pgs. 6-8.)

[8] The only permanent change to the roof based on Plaintiff’s evidence was the placement of the security cameras. Although Plaintiff references furniture and string lights, the evidence set forth by Plaintiff establishes that these were removed after the individuals left the roof, and were not permanent. The placement of the security camera does not support that broad proposition that Plaintiff suggests, namely that Reininger therefore knew or should have known that his tenants were having parties and spending time on the roof.

[9] Plaintiff also argues that he would have assumed the residence was safe and that he accessed the roof for the first time. (Opposition at pg. 10.) However, the critical inquiry is the foreseeability to the defendant.

DEPARTMENT	32
HEARING DATE	August 24, 2023
CASE NUMBER	20STCV42576
MOTIONS	(1) Motion to Remove Beth Holden as Guardian Ad Litem and to Appoint Antoine Montini as Sole Guardian Ad Litem; or in the Alternative, to Add Antoine Montini as Co-Guardian Ad Litem With Beth Holden (2) Motion for Order Sealing Records (of Motion to Replace Beth Holden as Guardian Ad Litem) (3) Motion for Order Sealing Records (of Plaintiff’s Opposition to the Motion to Replace Beth Holden as Guardian Ad Litem) (4) Motion for Summary Judgment, or in the Alternative, Summary Adjudication (Tentative Ruling below)
MOVING PARTIES	(1) Nonparty Antoine Montini (2) Nonparty Antoine Montini (3) Plaintiff Marz Holden-Montini, by and through his Guardian Ad Litem Beth Holden (4) Defendant Benjamin Reininger
OPPOSING PARTIES	(1) Plaintiff Marz Holden-Montini, by and through his Guardian Ad Litem Beth Holden (2) None (3) None (4) Plaintiff Marz Holden-Montini

DEPARTMENT	32
HEARING DATE	August 24, 2023
CASE NUMBER	20STCV42576
MOTION	Motion for Summary Judgment, or in the Alternative, Summary Adjudication
MOVING PARTY	Defendant Benjamin Reininger
OPPOSING PARTY	Plaintiff Marz Holden-Montini