Judge: Anne Hwang, Case: 21STCV07829, Date: 2023-11-30 Tentative Ruling

Case Number: 21STCV07829    Hearing Date: November 30, 2023    Dept: 32

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. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Material Facts

3.      Declaration of Gilberto Sevilla

4.      Declaration of Jodi C. Rosner

OPPOSITION PAPERS

1.      Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Igor Fradkin

2.      Plaintiff’s Separate Statement

3.      Plaintiff’s Evidence in Opposition

BACKGROUND

On March 1, 2021, Plaintiff Trevor Starks (Plaintiff) filed a complaint against Defendants FG Property Management, Inc. and 1254 W. 10^th Street, LLC (Defendants) and Does 1 to 50 for negligence and premises liability. Plaintiff rented a unit on property owned by 1254 W. 10^th Street, LLC and managed by FG Property Management, Inc. Plaintiff alleges that on August 18, 2019, he was cooking in his unit when the ceiling collapsed onto his head, causing injuries.

Defendants now move for summary judgment arguing that no triable issue of material fact exists. Specifically, Defendants argue they owed no duty to Plaintiff since they had no notice of the alleged defect. Defendants note that for the purposes of this motion only, they accept Plaintiff’s contention that the ceiling collapsed on his head. Plaintiff opposes. The reply was due November 25, 2023. No reply has been filed.

LEGAL STANDARD

“[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”].) 

DISCUSSION

Negligence­–Premises Liability

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

            “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; see Civil Code § 1714.) Because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to 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”] [cleaned up].)

“Historically, the public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession.¿This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition.”¿ (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510; Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 778.)¿This policy is based on the principle that the landlord has surrendered possession and control of the land to the tenant and has no right to enter without permission. (Id. at 511.) “[B]efore liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’”¿(Stone v. Center Trost Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.)¿

Whether an inspection is reasonable is based on the burden of avoiding the risk and the likelihood of injury. “The landlord's obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 782.)

Here, it is undisputed that on the day of the incident, Plaintiff was residing in unit 5 and Jania Port was a resident of unit 14, which sat directly above unit 5. (UMF 3.)

            Defendants set forth the following facts, which are disputed:

-          Defendant FG Property Management, Inc. thoroughly inspected Unit 14 prior to the start of Jania Port’s tenancy which began on November 1, 2018 and saw no signs of any water leaks. (UMF 4.)

-          Defendants, at no time prior to August 18, 2019, received notice of any water leak in Unit 14 or notice of any damage to the ceiling in Unit 5. (UMF 5.)

-          Plaintiff admits that he did not communicate with Defendants prior to the alleged incident regarding the ceiling in his unit or otherwise. (UMF 6.)

Defendants submitted the Declaration of Gilberto Sevilla, an employee of FG Property Management, which manages the subject property for the owner, 1254 W. 10^th Street, LLC. (Sevilla Decl. ¶ 2.)  Sevilla declares that he never received a complaint from Plaintiff before August 19, 2019 about any water damage, including any damage to his ceiling. (Id. ¶ 6.) Additionally, Sevilla declares that prior to leasing unit 14, located directly above unit 5, “we fully evaluated her unit and did not find any signs of a water leak.” (Id.) However, Sevilla’s declaration does not address any inspection of the ceiling in Unit 5.

Plaintiff offers the following facts:

-          Plaintiff’s expert, Jeff Hughes, is an employee of Aperture, LLC, a licensed general contractor in the State of California with a General Contractor B license and a Roofing Contractor (C39) and a Lath & Plaster contractor (C35) license. (PAMF 4.)

-          Defendant has produced no evidence about what type of alleged inspection was conducted on Unit 14 prior to the start of her tenancy on November 1, 2018. (PAMF 6.)

-          The subject ceiling presented a significant hazard and therefore was an unsafe condition at the time of the incident. (PAMF 7.)

-          The substrates of the subject ceiling were water-stained that reflect a history of leaks. (PAMF 8.)

-          There were several leak sources to cause the water to enter the ceiling area including plumbing leaks and/or drainage leaks in the kitchen above the subject unit. (PAMF 9.)

-          The kitchen ceiling had suffered from water damage such that multiple patches were evident and multiple unsatisfactory repairs appear to have been implemented. (PAMF 12.)

-          The photographs and evidence reflect that there is a combination of plaster and drywall in the ceiling area which is indicative of prior repairs. (PAMF 33.)

Plaintiff’s evidence relies primarily on a declaration by his construction expert, Jeff Hughes. According to Mr. Hughes, the photographs indicate Plaintiff’s kitchen ceiling contained multiple patches from previous water damage and represent unsatisfactory past repairs. (Hughes Decl. ¶ 11.3.)  Viewing the evidence and inferences in the light most favorable to Plaintiff, particularly with regard to the evidence of a history of leaks and repairs, there is a triable issue of fact regarding whether Defendants had notice.

CONCLUSION AND ORDER

            Based on the foregoing, Defendants FG Property Management, Inc. and 1254 W. 10^th Street, LLC’s Motion for Summary Judgment is DENIED.

            Defendants shall provide notice of this ruling and file a proof of service of such.