Judge: Anne Richardson, Case: 23STCV09202, Date: 2024-09-26 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 23STCV09202    Hearing Date: September 26, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Norguard Insurance Company (Norguard) sues Defendants The Brimel LLC (Brimel), Yun Chen (Chen), and Does 2 through 10 (collectively Defendants), pursuant to an August 14, 2023 First Amended Complaint (FAC) for reimbursement of workers compensation expenditures. The Complaint alleges two causes of action for negligence.

The claims arise from allegations that Norguard is obligated to pay workers compensation benefits to Angel Manzo (Manzo). Manzo was injured at his job as a security guard at a commercial building owned by Brimel and leased to Chen. Norguard alleges that Manzo’s injuries are the result of Brimel’s negligence and thus Norguard is entitled to reimbursement of the workers compensation benefits it has paid to Manzo

On September 25, 2023, Brimel filed an Answer to the FAC.

That same day, Defendant/Cross-Complainant Brimel filed a Cross-Complaint against Cross-Defendants Yun Chen, Next Generation Logistics, Inc., and Roes 1 through 50 alleging causes of action for (1) Express Contractual Indemnity, (2) Implied Indemnity, (3) Apportionment, (4) Contribution, and (5) Declaratory Relief.

B. Motion Before the Court

On June 20, 2024, Brimel filed the instant motion for summary judgment, or in the alternative, summary adjudication, to Norguard’s FAC. Specifically, Brimel argues that it owes no duty to Manzo since it had no notice of the alleged unsafe condition which caused Manzo’s injuries.

On September 12, 2024, Norguard opposed the motion.

On September 18, 2024, Brimel replied.

II. Motion

A. Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).)

The moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.) 

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

“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.¿[Citation.]¿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.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; 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”].) 

B. Analysis

In bringing a subrogation action for workers compensation benefits paid, the employer/its insurer “stands in the same shoes as [the] injured employee.” (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1070.) The “‘right to recover workers' compensation benefits derives from and does not extend beyond the employee's tort remedy against the negligent third party.’[Citation.]” (Ibid.)

Thus, whether Norguard may pursue Brimel to recover workers’ compensation benefits depends on whether Brimel breached a duty of care owed to Manzo.

Here, on May 12, 2021, while working as a security guard at the subject property owned by Brimel, Manzo noticed evidence that someone had entered the interior of the building’s office space. Mr. Manzo climbed an exposed ladder into the space above the office ceiling. (Opp., p. 2, UMF 17-18.) Using his flashlight, Manzo proceeded to walk across a piece of plywood that he believed was a wooden path above and on top of the drop ceiling. (Opp. p. 2., UMF 18; AMF 19.) He realized that the path was a dead end and, as he turned around, his foot caught on something causing him to fall off the plywood and through the drop ceiling into the office space below. (Opp. p. 2., UMF 18; AMF 19.) As a result, Manzo suffered debilitating injuries.

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.) 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].)

“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.)

In October of 2020, prior to turning possession of the property over to the tenant, Brimel’s agent Robert Cronyn walked through the property. (Cronyn Decl. ¶ 5; Cronyn Depo. pp. 53:21-55:12.) The parties do not dispute that at that time, the ceiling in the office space was intact and Brimel had no knowledge or reports that anyone had broken into the property. (Cronyn Decl. ¶¶ 5-6; Cronyn Depo. pp. 54:25-55:2; UMF 8) Thus, it is undisputed that Brimel had no actual or constructive knowledge of the dangerous condition.

Accordingly, Brimel has met its initial burden to make a prima facie showing that there is no triable issue of material fact regarding notice of a dangerous condition. The burden now shifts to Norguard to establish a triable issue of fact.  

Norguard argues that Brimel did not adequately inspect the property to make the premises reasonably safe from dangerous conditions. Norguard argues that during the October 2020 inspection, Cronyn states that he was “not really looking for dangerous conditions,” but walking through the building to make sure “everything looked presentable.”  (Cronyn Depo. pp. 20:7-10, 55:19-24.) Cronyn states that during his inspection, he did not use the drop-down ladder in the office space to inspect the area above the ceiling. (Cronyn Depo. pp. 55:10-12, 82:20-83:4, 83:8-14.)

Norguard cites to Mora v. Baker Commodities in which the court found genuine issues of material fact precluded summary judgment of a worker’s negligence claim against a property owner because the evidence presented did not show that the property owner conducted an inspection that was reasonable under the circumstances (Mora, supra, 210 Cal.App.3d at 782.) The court reversed summary judgment because “[t]he affidavits presented did not show that at the time the [] lease was executed there was an inspection, nor were facts presented bearing upon the necessity for an inspection, nor facts which showed that any inspection conducted was reasonable under the circumstances.” (Id. at 782.)

Here, although Brimel’s agent Cronyn, stated in his declaration at paragraph 5 that he inspected the property “for dangerous conditions” prior to passing possession of the space to the tenant, in his deposition taken after the motion was filed he qualified the term “inspection”  considerably and testified “I’m not really looking for dangerous conditions, but I do a walk-through to make sure that, you know, it’s going to lease as well as possible.” (Depo. of Cronyn attached as Exhibit B to Compendium of Evidence in Opposition to the Motion at pp. 18:22 – 19:1, and p. 20:2-10; AMF 6.)

Moreover, there was evidence that Cronyn was aware of the ladder that led to the drop ceiling and that he never inspected that area. (AMF 16-17.) Whether there was any way of knowing the homeless persons would enter the property above the drop ceiling, the existence of the drop ladder certainly presents a reasonable possibility that a tenant might access that area, potentially giving rise to a duty to inspect an area that reasonably could be accessed by the tenant or its invitees. Thus, there is a triable issue of fact as to whether the walk-through in fact constituted an appropriate inspection for hazards of this particular property.

Thus, Norguard has established a triable issue of material fact. 

Accordingly, Brimel’s motion for summary judgment is DENIED.

III. Conclusion

Defendant Brimel LLC’s Motion for Summary Judgment is DENIED.