Judge: Daniel M. Crowley, Case: 20STCV10279, Date: 2023-04-14 Tentative Ruling

Case Number: 20STCV10279    Hearing Date: April 14, 2023    Dept: 28

Defendant Kibron Asrat’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On March 12, 2020, Plaintiff David Smiley (“Plaintiff”) filed this action against Defendants Queen Arms Homeowners Association (“Queen”), Shawnda Thomas (“Shawnda”), Kibron Asrat (“Asrat”), Mac Bennett Enterprises, Inc. dba Intentional Realty & Investments (“Mac”) and Malcolm Bennett (“Bennett”) for general negligence and premises liability.

On November 17, 2020, Plaintiff filed the FAC, adding Defendant Steven Thomas (“Steven”).

On December 16, 2020, Queen and Mac filed answers and a Cross-Complaint against Cross-Defendant Steven for equitable indemnity, contribution and declaratory relief.

On December 30, 2020, Steven filed an answer. On March 18, 2021, Shawnda filed an answer. On March 24, 2021, the Court dismissed Bennett with prejudice, pursuant to Plaintiff’s request.

On January 23, 2023, Asrat filed a Motion for Summary Judgment to be heard on April 14, 2023. On April 3, 2023, Plaintiff filed an opposition. On April 7, 2023, Asrat filed a reply.

Trial is currently set for July 25, 2023.

PARTY’S REQUESTS

Asrat requests the Court grant summary judgment as there is no dispute as to material fact.

Plaintiff requests the Court deny the motion

OBJECTIONS

Asrat’s Objections:

Sustained: 4, 5, 11, 13

Overruled: 1, 2, 3, 6, 7, 8, 9, 10, 12, 14, 15, 16

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Premises liability relies upon the same elements as negligence.

A land possessor owes no duty to protect against third-party criminal assaults absent prior similar incidents which would give rise to a high degree of foreseeability. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666.) The requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises. (Id. at 679.)

“Landlords...ordinarily have no duty to reject prospective tenants they believe, or have reason to believe, are gang members... With regard to eviction, we agree that a residential tenant's behavior and known criminal associations may, in some circumstances, create such a high level of foreseeable danger to others that the landlord is obliged to take measures to remove the tenant from the premises or bear a portion of the legal responsibility for injuries the tenant subsequently causes.” Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1210. Merely being a gang member is not enough to establish heightened foreseeability; there must be specific incidents giving rise to a heightened foreseeability of violence. Id. At 1221.

“Thus, before 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.” Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131-1132.

DISCUSSION

Overview

Plaintiff alleges that, while performing work on the subject condominium property for Asrat on January 19, 2019, he was shot by Thomas. (UMF 2.) Plaintiff specifically alleges Thomas left a condo unit with a gun, walked onto the sidewalk adjacent to the property and shot Plaintiff with a gun. (UMF 3, 7.) Thomas was a resident of the subject property at the time of the incident. (UMF 6.) Asrat did not own, control, or possess the sidewalk where the incident occurred. (UMF 10.)

Third-Party Criminal Action

In order for a property owner to be liable for the third-party criminal actions of a tenant, it must be highly foreseeable that the tenant is a danger to others. The required foreseeability is established by actual knowledge of specific violent incidents; mere association with a gang or criminal activity is insufficient. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1221.)

Asrat’s evidence demonstrates that Asrat did not have the requisite knowledge that would impose liability for Thomas’ actions. Asrat was not aware of any threats made by Thomas or previous incidents involving Thomas. (UMF 10.) Asrat has never seen Thomas brandishing a gun or any other type of gun prior to the incident. (UMF 10.)

Plaintiff argues that Thomas was on notice as to the danger posed by Thomas. Thomas physically attacked Plaintiff approximately 30 days before the shooting, while Plaintiff was working on or around the subject premises; during this altercation, Plaintiff allegedly held Thomas down against the ground and humiliated him, resulting in Thomas “vow[ing] to end Plaintiff’s life the next time Thomas saw him,” when he saw Plaintiff’s child. Plaintiff allegedly relayed this incident to Asrat on the day it occurred. A previous physical assault against Plaintiff, on the premises, and an explicit threat on his life are potentially grounds for a jury to find the third-party criminal act highly foreseeable. It is irrelevant whether Plaintiff himself believed Thomas would hurt Plaintiff in determination of foreseeability. Given that Plaintiff has provided evidence in support of Asrat having actual notice of the criminal act, the Court cannot grant summary judgment on this basis.

Control of the Sidewalk

Asrat alleges that he did not control, own or possess the subject sidewalk, and thus did not owe a duty to care to Plaintiff because the shooting occurred on the sidewalk, rather than the subject premises. As pointed out in Plaintiff’s reply, the alleged dangerous condition was not the sidewalk, but rather Asrat’s tenant, Thomas.

A landlord has a duty of care to maintain one’s own property in such a way as to avoid exposing persons on adjacent land to an unreasonable risk of injury. (Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, 857-860). If Asrat allowed the dangerous condition to exist and persist, by allowing Thomas to reside on the subject property without taking any steps to limit the potential danger, and hired Plaintiff, resulting in Plaintiff actually being on or

immediately outside the subject property, the Court finds it reasonable to find that Asrat may have had a duty of care to Plaintiff to protect him from Thomas. Whether the incident occurred on the subject property or immediately outside it is irrelevant if Asrat’s action or lack of action as a landlord was the cause of the injury. Therefore, the Court cannot grant summary judgment on this basis.

As no potential avenue for summary judgment remains, the Court denies the motion.

CONCLUSION

Defendant Kibron Asrat’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.