Judge: Anne Hwang, Case: 21STCV17389, Date: 2024-03-19 Tentative Ruling

Case Number: 21STCV17389    Hearing Date: March 19, 2024    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 Facts

3.     Declaration of Jessica Kim in Support

OPPOSITION PAPERS

1.     Plaintiff’s Opposition

2.     Plaintiff’s Separate Statement of Undisputed Material Facts in Opposition

3.     Plaintiff’s Evidence in Opposition

REPLY PAPERS

1.     Defendant’s Reply

2.     Defendant’s Reply to Plaintiff’s Separate Statement

3.     Declaration of Jessica Kim in Support

BACKGROUND

On May 7, 2021, Plaintiff Ashout Shahnazarian (“Plaintiff”) filed a complaint against Defendants Route 66 Collision Center, Inc., Gevorg Nersisyan, and Does 1 to 100 for negligence and premises liability. Plaintiff alleges that on October 4, 2019, he was on premises owned and controlled by Defendants, waiting for his vehicle to be repaired. (Complaint ¶ 8–9.) Gevorg Nersisyan, who is alleged to own Route 66 Collision Center, Inc., asked Plaintiff to help repair a stuck garage door on the premises. (Id. ¶ 9.) Plaintiff agreed and climbed a ladder to assess the problem when Defendants’ employee took a broom handle and tried to unjam the garage door. This caused the garage door to crash down on Plaintiff, resulting in injuries. (Ibid.)

Defendant Gevorg Nersisyan (“Defendant”) now moves for summary judgment arguing the following: (1) Plaintiff cannot meet the heightened standard of proof for holding Defendant liable in personal capacity; (2) Defendant owed no duty since the injury was not foreseeable and Defendant had no actual or constructive notice of the condition; (3) Defendant’s conduct did not cause the injury; and (4) assuming a dangerous condition existed, it was open and obvious. Plaintiff opposes and Defendant replies.

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

Legal Principles

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.)

In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)

To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, 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, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach.  (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“[I]n analyzing duty, the court's task “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.” [Citation.] Viewed in this light, the question of foreseeability in a “duty” context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]”  (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1273 [cleaned up].) Stated differently, “a court's task—in determining ‘duty’—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.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620 [quoting Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6].)

“‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”).)

“ ‘[T]he decision whether that breach caused the damage (that is, causation in fact) is again within the jury’s domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]’ [Citations.]” (Constance, supra, 178 Cal.App.3d at p. 207 [italics in original].) Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) “In other words, [the] plaintiff must show some substantial link or nexus between omission and injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)

The doctrine of proximate cause relieves defendants from liability for injuries they, in fact, caused, based on considerations of policy and justice. (Ortega, supra, 26 Cal.4th at p. 1205.) But proximate cause only becomes relevant after it has first been determined that defendant’s conduct was the cause in fact of plaintiff’s injury. (See Rest.2d Torts, § 431, subd. (a).)

“Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done. They may be liable, under the rules of tort and agency, for tortious acts committed on behalf of the corporation.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 595.) Therefore, “[t]o maintain a tort claim against a director in his or her personal capacity, a plaintiff must first show that the director specifically authorized, directed or participated in the allegedly tortious conduct [Citation]; or that although they specifically knew or reasonably should have known that some hazardous condition or activity under their control could injure plaintiff, they negligently failed to take or order appropriate action to avoid the harm [Citations.] The plaintiff must also allege and prove that an ordinarily prudent person, knowing what the director knew at that time, would not have acted similarly under the circumstances.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 508–09.)

Analysis

Here, Defendant sets forth the following facts:

-        Defendant Gevorg Nersisyan was the sole shareholder of Route 66 Collision Center, Inc., an auto body repair garage, at the time of the incident. (UMF 3.)

-        During the evening on October 4, 2019, when Defendant was closing the garage for the day, he discovered that one of the garage doors would not close and was stuck in the open position. (UMF 4.)

-        The subject garage door had to be opened and closed manually and there was a string attached to the door that had to be pulled in order to close the garage door. Defendant pulled on the string a couple of times but the door would not come down. (UMF 5.)

-        Defendant knew Plaintiff to be a handyman and prior to the incident, Plaintiff had done some work for Route 66, including flooring, plumbing, electrical and painting work. (UMF 7.)

-        Plaintiff himself testified he was a handyman who had been in construction for approximately 16 to 17 years prior to the incident. (UMF 8.)

-        Plaintiff testified Defendant asked him to "take a look" at the subject garage door that was not closing and Plaintiff agreed to do so. (UMF 9.)

-        Defendant then left Plaintiff to inspect the subject garage door while Defendant went to go use the restroom and get ready to close up for the day. (UMF 10.)

-        Plaintiff claims he ascended a ladder that was placed below the subject garage door and started to inspect the door when a Route 66 employee, "Jose," took a broom handle and tried to unjam the door from the inside, causing the garage door to come down on Plaintiff. As a result, Plaintiff claims he was thrown from the ladder causing him to suffer severe injuries, including a right leg fracture. (UMF 11.)

-        Defendant did not ask Jose to work on the subject garage door on the day of the incident. (UMF 12.)

-        Prior to October 4, 2019, Defendant Gevorg Nersisyan did not have any prior issues with any of the garage doors at Route 66 Collision Center, Inc. The door in question only began having issues on the day of the incident right before closing. (UMF 15.)

-        Defendant Gevorg Nersisyan had no reason to believe that the subject garage door was an unreasonable risk to Plaintiff and testified, "I didn't think of anything crazy. It's just a simple door. May if he pulled it properly, it would have closed." (UMF 16.)

Plaintiff sets forth the following facts:

-        Defendant was aware that the garage door that was jammed was very large and heavy and could only be closed manually. (PAMF 3.)

-        Defendant was aware that Plaintiff would have to climb a ladder that was "high" in order to inspect the garage door that was jammed. (PAMF 4.)

-        Defendant had reason to believe that the jammed garage door presented a dangerous condition. (PAMF 5.)

-        Defendant testified that he may have asked Jose to help inspect the jammed garage door. (PAMF 10.)

Defendant first argues that he cannot be held personally liable for a tort. Defendant has failed to meet his initial burden of establishing the absence of a triable issue of fact. Based on Defendant’s statement of undisputed facts, Defendant himself asked Plaintiff to take a look at the door. (UMF 9.) He also possibly asked Plaintiff and Jose, “can you guys take a look at it.” (Def.’s Resp. to UMF 12.) Accordingly, there is a triable issue of fact as to whether Defendant specifically authorized or directed the allegedly negligent conduct, and that an ordinarily prudent person, knowing what Defendant knew at that time, would not have acted similarly under the circumstances.

Defendant next argues that there is no evidence that Plaintiff’s injury was foreseeable or that Defendant engaged in conduct that was the proximate cause of Plaintiff’s injuries. Here, the parties appear to differ as to the alleged breach at issue. Defendant argues that the allegedly negligent conduct was Defendant asking Plaintiff to take a look at the door. (Motion at p. 10, 13.) Plaintiff appears to argue instead that Defendant requested Plaintiff to look at the garage door, by climbing a ladder to examine a heavy door, while also asking another employee to take a look at the same time. (PUMF 3, 4, 10.) Viewing the evidence in the light most favorable to Plaintiff, including all reasonable inferences, the Court finds there are triable issues of fact regarding all elements of negligence. In analyzing duty for purposes of this summary judgment motion, the Court evaluates whether the category of allegedly negligent conduct at issue, i.e., asking a patron to inspect a stuck garage door while asking an employee to do so at the same time, is sufficiently likely to result in the kind of harm experienced, i.e., the garage door falling on the patron. There is a triable issue of fact regarding whether Defendant owed Plaintiff a duty of care. Moreover, particular in light of the disputed evidence regarding Defendant’s request to Jose to look at the door at the same time, there is a triable issue of fact as to whether Defendant’s conduct was a substantial factor in causing Plaintiff’s injury. Accordingly, the motion for summary judgment is denied.

            Finally, Defendant does not separately move for summary adjudication. Accordingly, the Court does not reach Defendant’s separate arguments regarding the premises liability cause of action, namely that Defendant did not have actual or constructive notice of a dangerous condition and that the condition was open and obvious.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Gevorg Nersisyan’s Motion for Summary Judgment is DENIED.

            Defendant shall give notice of this ruling and file a proof of service of such.