Judge: Armen Tamzarian, Case: 21STCV22319, Date: 2023-10-25 Tentative Ruling

Case Number: 21STCV22319    Hearing Date: October 25, 2023    Dept: 52

Defendants Barsala, Inc. and Ronald Pescador’s Motion for Summary Judgment or in the Alternative for Summary Adjudication

Defendants Barsala, Inc. and Ronald Pescador move for summary judgment or in the alternative, summary adjudication of each cause of action alleged by plaintiffs Hector Jr. Beltani and Breeana Linn Odell.

Legal Standard

Summary judgment should be granted where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)  Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  Courts consider the evidence “in the light most favorable to the opposing party.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) 

Summary of Allegations

            Plaintiffs’ complaint alleges six causes of action: (1) breach of contract, (2) premises liability, (3) negligent security, (4) trespass to chattel, (5) conversion, and (6) intentional infliction of emotional distress.  All six causes of action arise from the same allegations.  Plaintiff leased a short-term vacation rental unit from Barsala, Inc.  (Comp., ¶¶ 4-5.)  On February 13, 2020, plaintiffs arrived at unit 1511 of the property known as Museum Tower Apartments located at 235 South Olive Street in Los Angeles.  (¶¶ 5-6.)  Plaintiffs left the unit and returned at about 2:20 a.m. to find their personal property was missing.  (¶¶ 6-8.)  Plaintiffs allege that after notifying defendants of the burglary, “in response the Defendants sent them a written rental agreement for their review and execution.”  (¶ 7.)  “At or around 2:30 AM, Plaintiff executed Barsala’s rental agreement and notified Defendant Barsala’s security what had happened.”  (Ibid.)  Plaintiffs allege the “stolen property” was worth “roughly $33,000.”  (¶ 8.)

Limitation on Liability

            Defendants meet their burden of showing plaintiffs cannot succeed on any cause of action.  Defendants present evidence that plaintiff Hector Jr. Beltani agreed to a “privacy policy and guest agreement” regarding his stay at Museum Tower Apartments.  (Copley Decl., ¶¶ 4-6, 9-11, Exs. 1-3.)  That agreement includes the following:

Limitation of liability [¶]  The Company is not responsible for any personal effects of The Guest that may disappear from the suite.  The Company maintains insurance on the structure and those items belonging to The Company.  The Guest is responsible for insurance on all of guest’s personal items. The Guest will be fully responsible for all damage to the suite or contents during their stay… .  The Guest agrees to indemnify The Company and hold it harmless from any injury or damage resulting to The Guest, their invites, or other persons, their personal property, the suite, its contents, or the property, occurring in the suite itself or in any common areas… . 

(Copley Decl., Ex. 1, pp. 3-4.)      

            This entire action arises from plaintiffs’ personal property that “disappear[ed] from the suite.”  Plaintiff Beltani expressly agreed that defendants were not responsible for “personal effects … that may disappear from the suite” and that he was “responsible for insurance on all of [his] personal items.”  Beltani also agreed to indemnify defendants and hold them harmless from any injury or damage to his or his invitees’ personal property—which requires him to indemnify defendants from all claims by fellow plaintiff Breeana Linn Odell.

Plaintiffs do not meet their burden of showing a triable issue of material fact.  Plaintiffs present evidence that Beltani executed the guest agreement between 3:45 a.m. and 4:00 a.m. on February 14, 2020.  Plaintiff argues this agreement therefore was not in force at the time of the alleged burglary.  It makes no difference that plaintiff signed the agreement after his stay began and after the burglary.

Contracts can apply retroactively.  (See, e.g., Coon v. Nicola (1993) 17 Cal.App.4th 1225, 1234 [enforcing retroactive agreement to arbitrate disputes over prior services].)  Generally, someone may agree to exculpate another person from future liability (see Cregg v. Ministor Ventures (1983) 148 Cal.App.3d 1107, 1111 [a party to a contract may “ ‘agree[] to shoulder a risk which the law would otherwise have placed upon the other party’ ”]) or to release another person from liability for past events (see General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435, 439).  That Beltani signed the agreement after the burglary supports this defense because the law imposes greater limits on contracts exculpating liability for future torts than on contracts releasing liability for past torts.  (See SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 153.)

Here, the privacy policy and guest agreement provides, “You understand this is not your arrival/departure information but rules and regulations governing your accommodation.”  (Copley Decl., Ex. 1, p. 1.)  Beltani thus agreed that the contract’s provision limiting liability governs his accommodation at Museum Tower Apartments.  That his accommodation began before he accepted this agreement does not render the agreement ineffective.

Plaintiffs’ opposition argues the contract was “deceptive and unfair.”  (Opp., p. 6.)  Plaintiffs cite no authority and no evidence of anything that would make the contract unenforceable.  

Intentional Torts

            Plaintiffs’ fourth cause of action for trespass to chattel, fifth cause of action for conversion, and sixth cause of action for intentional infliction of emotional distress fail for an independent reason.  These causes of action are intentional torts.  Conversion requires “that the defendant have intentionally done the act depriving the plaintiff of his or her rightful possession.”  (Voris v. Lampert (2019) 7 Cal.5th 1141, 1158.)  “The gravamen of the tort is the defendant’s hostile act of dominion or control over a specific chattel.”  (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)  Similarly, a claim for “trespass to chattels ‘lies where an intentional interference with the possession of personal property has proximately caused injury.’ ”  (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350–1351.)  And intentional infliction of emotional distress requires “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)   

Plaintiffs’ complaint makes only conclusory allegations that defendants did anything “intentionally.”  (Comp., ¶¶ 24, 31.)  The gravamen of the action is that defendants “fail[ed] to provide a safe unit for the Plaintiffs to utilize and store their Personal Property” (¶ 12) or failed to “safeguard[] the keys” to the unit, or otherwise made it “accessible to third parties without precautions or safety guards in place” (¶ 16). 

The undisputed evidence shows defendants did not intentionally interfere with plaintiffs’ property or otherwise intentionally harm plaintiffs.  It is undisputed that Ronald Pescador was the person acting on behalf of Barsala, Inc. at Museum Towers Apartments.  Pescador states, “I was responsible for overseeing the rental of residential units managed by Barsala at six (6) different buildings in the Los Angeles area, including the Museum Towers Apartments building.”  It is undisputed that Pescador was not present at the building during plaintiffs’ stay there.  (Id., ¶¶ 9, 12; UMF No. 14.)  He could not have taken or interfered with plaintiffs’ belongings without being at the property. 

These intentional torts require that defendants personally interfered with or took plaintiffs’ belongings.  Failing to protect plaintiffs’ belongings is not enough.  At most, plaintiffs’ allegations and the undisputed evidence show that defendants did not protect plaintiffs’ belongings.

Code of Civil Procedure Section 437c(h)

Plaintiffs’ opposition also seeks to continue the hearing on this motion “to finalize and review ongoing discovery.”  (Opp., p. 7.)  Code of Civil Procedure section 437c, subdivision (h) provides, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” 

Plaintiffs do not present a sufficient affidavit showing that facts essential to justify opposition may exist.  Plaintiffs rely on the declaration of counsel Thomas G. Gennaro, which does not identify any potential discovery to be done.  He states, “Defendants filed this Motion and produced documents never produced before.  Furthermore, Defendants produced almost 170 pages of material documents right before the deposition of Defendant Barsala’s PMQ.”  (Gennaro Decl., ¶¶ 4-5.)  That does not show that any “facts essential to justify opposition may exist” as required under Code of Civil Procedure section 437c(h).  Moreover, Gennaro continues, “Upon review of those documents and deposition of Defendant Ronald Pescador, I discovered the following,” followed by a description of the evidence.  (Gennaro Decl., ¶¶ 6-17.)  Rather than explaining what evidence plaintiffs need but do not have, he presents the evidence he uses to oppose this motion.  Plaintiffs do not show good cause to continue the hearing on this motion.

Disposition

            Defendants Barsala, Inc. and Ronald Pescador’s motion for summary judgment is granted.  Defendants shall submit a proposed judgment for the court’s signature forthwith.