Judge: Anne Hwang, Case: 21STCV12676, Date: 2023-08-11 Tentative Ruling

Case Number: 21STCV12676    Hearing Date: August 11, 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 (which is highly encouraged).  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

BACKGROUND

This is a personal injury case that stems from an incident on December 3, 2020, where Porfirio Juarez (“Plaintiff”) fell through a skylight on the roof of a property located at 2528 E. 127^th Street, in Compton, California. (Complaint, ¶ L-1 and Defendants’ Motion for Summary Judgment, hereinafter, “Motion”, 3:6-11.) Abraham Davood is the owner of the property, and President of 2528 Compton LLC (collectively, “Defendants”). Plaintiff filed his Complaint on April 2, 2021 alleging one cause of action for premises liability.

Defendants filed their Motion for Summary Judgment (“Motion”) on May 11, 2023. Plaintiff filed his Opposition on July 28, 2023. Defendants filed their Reply on August 4, 2023.

LEGAL STANDARD – SUMMARY JUDGMENT

“[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.)  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

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].) Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)

Stated differently, 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].)

Defendants argue that summary judgment should be granted because (1) Defendants owed no duty to Plaintiff who was a trespasser, and (2) Defendants had no actual or constructive notice of a dangerous condition of the property.

Duty to a “Trespasser”

“In the case of a landowner’s liability for injuries to persons on the property, the determination of whether a duty exists, ‘involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145 (citing Rowland v. Christian (1968) 69 Cal.2d 108, 112-113).)

In support of Defendants’ argument, Defendants offer the following facts:

-          Davood has retained Juan Merida in the past for clean-up and graffiti removal at other properties managed by Defendant. (Defendant’s Undisputed Material Facts (“DUMF”) 10; Table of Evidence in Support of Motion (“TOE”) at Exh. 3, 20:14-17.)

-          Davood contacted Merida to clean the inside of the newly acquired building and for graffiti removal. (DUMF 8; TOE Exh. 3, 29:16-23.)

-          Juan Merida is the only employee of his business. (DUMF 11; TOE Exh. 3, 13:4-6.)

-          Juan Merida did not tell Defendant he was taking anyone with him to the property. (DUMF; Davood Decl. ¶ 7.)

-          On December 3, 2020, Juan Merida went to the property alone. (DUMF 13; TOE Exh. 3, 18:6-8.)

-          Defendant did not know that Juan Merida or Plaintiff Juarez would be on the property on December 3, 2020. (DUMF 14; TOE Exh. 3, 31:13-16.)

-          Davood did not authorize Juarez to access the roof of the property at any time. (DUMF 15; Davood Decl. ¶ 7.)

-          Davood was not present while Juarez was on the property. (DUMF 20; TOE Exh. 3, 17:8-10.

-          Merida did not tell Davood, nor did Davood have any knowledge that Juarez was with him on the roof on the day of the accident. (DUMF 22; Davood Decl. ¶ 7.)

-          Davood did not authorize Merida or Juarez to access the roof of the property. (DUMF 27; Davood Decl. ¶ 8.)

-          Davood did not authorize Juarez to be on the property. (DUMF 30; Davood Decl. ¶ 5.)

In opposition, Plaintiff offers the following facts:

-          Davood was sure that he was aware of Merida bringing in people to help him with work. (PUMF 57, Davood Depo. 24:18-20.)

-          Davood did not know the scope of work being performed by Merida and Plaintiff on the date of the incident. (PUMF 60; Davood Depo. 29:10-17.)

-          Davood did not instruct Merida or Plaintiff to stay off the roof on the date of the incident. (PUMF 61; Davood Depo. 29:10-17.)

-          Merida told Plaintiff that Davood wanted to see if the roof was leaking and that he needed to see how much it would be to replace or repair the roof. (PUMF 64; Juarez Depo. 15:5-16.)

Defendants argue that there is no triable issue of material fact that Defendants owed a duty to Plaintiff, citing to CACI 1001, and specifically factor (b) “[t]he likelihood that someone would come on to the property in the same manner as Plaintiff.” (Reply at pgs. 1-2.)[1] The Court agrees with Plaintiff that Defendant’s advanced evidence does not foreclose the issue of whether Defendants owed a duty of care to Plaintiff.  For example, there remains triable issues of fact of whether Defendant asked Merida to see if the roof was leaking, and that Davood was aware that Merida would bring people to help him with work.  (PUMF 57, 64.) Accordingly, whether Davood specifically knew or authorized Juarez to be on the roof does not negate that there is a triable issue of fact that he knew that someone would be on the roof in the same manner as Plaintiff.

Knowledge of Dangerous Condition

“[A]n owner cannot be liable for a dangerous condition unless she had actual or constructive knowledge of it, or she could have discovered it by the exercise of ordinary care and should have realized that it involved an unreasonable risk to invitees. ‘The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge.’ ‘Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations.’” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 216 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06.)

            In support of Defendants’ argument, Defendants offer the following facts:

-          Davood had owned the property for eight days prior to the incident. (DUMF 4, Davood Decl. ¶ 4.)

-          Davood visually inspected the skylights from the inside of the building and found them to be transparent allowing light to pass through into the property. (DUMF 6, Davood Decl. ¶ 5, 9.)

-          After the purchase of the property, Defendants retained a roofing contractor to inspect the roof of the property as it appeared that the roof leaked in the past.  The roofing contractor did not disclose any dangerous condition of the roof or skylights that were present on the roof. (DUMF 7, Davood Decl. ¶ 5, 9.)

-          Davood had no actual or constructive knowledge that the skylights posed a danger to anyone entering the property. (DUMF 32; Davood Decl. ¶ 9.)

In opposition, Plaintiff offers the following facts:

-          Davood does not recall ever retaining a roofing contractor after the purchase to inspect the roof for a leak. (PUMF 62; Davood Depo. 39:4-7.)

-          Davood owns approximately 20 residential and commercial properties, but most are commercial. (PUMF 53; Davood Depo. 13:25-14:11.)

-          Davood was aware of the skylights on the roof as they were visible from the inside of the building. (PUMF 20; Davood Decl. 2.)

-          Davood knew the building was not in a great condition when he purchased the property and did not think about the roof at all when purchasing the property. (PUMF 20; Davood Depo. 28:33-34.)

-          Davood inspected the property before purchase. The inspection occurred a “few months” before escrow.  They walked the “whole thing.” (PUMF 54; Davood Depo. 16:16-17:2.)

-          The foreseeable failure to the skylight is based on various potential factors that may have negatively impacted the skylight’s ability to consistently withstand the weight of a person walking on the skylight, including the age, foreseeable structural deterioration, pre-existing damages, and defects. (PUMF 11; Averit Decl. ¶ 14.)

-          It is well known and recognized in the construction and skylight industries that skylight will deteriorate over time.  (PUMF 12; Averit Decl. ¶ 15.)

-          The roof presented a dangerous condition due to the foreseeability of Plaintiff’s work on the roof in hazardous proximity to unguarded skylights which constituted an unguarded roof opening. The roof and unguarded skylights were also a foreseeable hazard to all entities accessing the roof, including Defendant and other service people. (PUMF 13; Averit Decl. ¶ 16.)

-          It was foreseeable that individuals would necessarily be exposed to falling through an unguarded skylight so Davood needed to safeguard the skylights. He had both knowledge of the skylight hazards and the control and authority to implement safety measures. (PUMF 22; Averit Decl. ¶ 22.)

-          In Averit’s opinion, Davood knew or should have known about the dangerous condition because he had ample opportunity and information to become knowledgeable regarding the risks of skylights to workers. He failed to utilize publicly available information regarding skylight injuries. (PUMF 44; Averit Decl. ¶ 42.)

Defendants’ argument appears to rest on whether they had actual knowledge of a dangerous condition.  However, Plaintiff has set forth sufficient evidence to create a triable issue of fact as to whether Defendants had constructive knowledge.  Defendants rely heavily on Davood’s declaration that he “retained a roofing contractor to inspect the roof of the property as it appeared that the roof leaked in the past” and that he owned the property for only eight days. (Reply at pgs. 2-3.) Plaintiff argues that Davood testified that he did not recall ever retaining a roofing contractor. In any event, the Court does not find Davood’s declaration to foreclose a triable issue of fact because he does not state that the roofing contractor was retained to give an opinion about the skylights. Moreover, Defendants’ own evidence establishes that Davood visually inspected the skylights from inside the building. Plaintiff’s evidence, including Averit’s opinion regarding the foreseeable failure of the skylight when one sees the skylights, that Davood knew the building was not in great condition, and inspected the property before purchase, create a triable issue of material fact as to Defendants’ constructive knowledge of the dangerous condition. It is a question of fact for the jury whether Defendants had adequate time and information to discover the dangerous condition and realize that it posed an unreasonable risk.

CONCLUSION

In considering the competent evidence proffered by Plaintiff and Defendants, and viewing said evidence most favorably toward Plaintiff, the Court finds that there are triable issues of material fact.  Therefore, the Court denies Defendants’ motion for summary judgment.

The Clerk of the Court shall provide notice of the Court’s ruling.