Judge: Gary I. Micon, Case: 23CHCV03449, Date: 2025-05-15 Tentative Ruling
Case Number: 23CHCV03449 Hearing Date: May 15, 2025 Dept: F43
Dept. F43
Date: 05-15-25
Case # 23CHCV03449, Keshishyan v. Mirzakhanyan
Trial Date: 11-03-25
MOTION FOR SUMMARY
JUDGMENT
MOVING PARTY: Defendant Arpine Mirzakhanyan
RESPONDING PARTY: Plaintiff Arbi Kehsishyan
RELIEF
REQUESTED
Order
granting summary judgment on the complaint, or in the alternative, granting
summary adjudication on the complaint’s first and second causes of action.
RULING: Motion for
summary judgment, and in the alternative, summary adjudication is denied.
SUMMARY OF ACTION
This premises liability action arises from an
incident that occurred on October 23, 2022 at property located at 37631 Sixth
Street East, Palmdale, CA 93550 (the Property).
Plaintiff Arbi Kehsishyan (Plaintiff) alleges that he suffered severe
injuries when he fell off a green ladder and onto concrete floor while
attempting to hang a sign. (Defendant’s UMFs,
1-2.) Defendant Arpine Mirzakhanyan
(Defendant) owns the Property, but her brother-in-law, Zhirayr Zamanyan (Zamanyan),
manages the property. (Def.’s UMF, 3;
Plaintiff’s Response to UMF, 3.)
Zamanyan asked Plaintiff to go to the
Property on October 23, 2022 to unlock the door to let a repairman into a
vacant building on the Property. (Def.’s
UMF, 4.) That day, Plaintiff called
Zamanyan and told him that the “For Rent” sign was not hung correctly, and that
Plaintiff could fix the sign using a ladder.
(Def.’s UMF, 5.) Plaintiff
asserts that prior to this conversation, Zamanyan knew about the sign’s
condition since May 2022. (Pl.’s UMF,
20.) When Zamanyan asked Plaintiff if he
could fix the sign, Plaintiffs said yes.
(Def.’s UMF, 5.) Zamanyan told
Plaintiff there was a ladder on the side of the building that Plaintiff could
use. (Def.’s UMF, 6.) Plaintiff saw a green ladder. (Def.’s UMF, 6.) Defendant asserts that the green ladder was
not defective. (Def.’s UMF, 7.) Zamanyan never inspected the ladder and never
warned Plaintiff about any safety concerns.
(Pl.’s UMF, 26.)
Plaintiff placed the ladder onto the concrete
ground in front of the building in order to fix the sign. (Def.’s UMF, 8.) Plaintiff climbed to the very top of the
ladder using both hands with a wire to attach the sign to a hook. (Def.’s UMFs, 9-10, 15.) Plaintiff stood on top of the ladder. (UMFs, 9-10.)
As Plaintiff tried to hold the sign and attach the wire to the wall, he
fell off the green ladder and hit his head on the concrete. (Def.’s UMFs, 11-12.)
On November 9, 2023, Plaintiff filed a
complaint against Defendant and Does 1 to 50 alleging two causes of action for
(1) premises liability and (2) general negligence. On April 30, 2025, Plaintiff identified
Zamanyan as Doe 1. The complaint also
lists a cause of action for “negligent supervision” without alleging any facts
to support the cause of action.
Defendant now moves for summary judgment, or
in the alternative, summary adjudication on the first and second causes of
action. Defendant contends that it did
not cause Plaintiff’s injuries and that Plaintiff was not properly using the
ladder when he fell. (Def.’s UMFs, 16-17.)
Plaintiff opposes, contending that the
evidence shows that Defendant failed to inspect, maintain, or supervise the
Property for years, allowing unsafe conditions and defective equipment to
persist. Defendant also failed to
supervise or instruct Plaintiff on how to conduct the repair.
Defendant replies, arguing that Plaintiff has
not presented evidence that the green ladder was damaged prior to the
accident. Plaintiff’s opposing evidence demonstrates
that Defendant learned about the broken ladders after the accident. Thus, Plaintiff fails to present evidence
that the green ladder was a dangerous condition on the Property, that Defendant
knew about any dangerous condition on the Property, or that Plaintiff was
Defendant’s employee. Further, Plaintiff’s
new argument concerning who owns the Property fails because the most transfer
deed shows that Defendant is the Property’s sole owner.
REQUEST
FOR JUDICIAL NOTICE
Defendant
asks the court to take judicial notice of a trust transfer deed for the
Property. However, because Defendant did
not attach a copy of deed to his reply or request for judicial notice,
Defendant’s request is denied.
ANALYSIS
Summary
Judgment and Summary Adjudication
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (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 pleadings frame the
issues for motions “since it is those
allegations to which the motion must respond.”
(Scolinos v. Kolts (1995) 37
Cal. App. 4th 635, 640-641; FPI
Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon
Corp. (1994) 29 Cal.App.4th 1459, 1472.)
“On a motion for summary judgment, the initial burden is always on the
moving party to make a prima facie showing that there are no triable issues of
material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,
1519.) A defendant moving for summary
judgment “has met his or her burden of showing that a cause of action has no
merit if the party has shown that one or more elements of the cause of action .
. . cannot be established.” (Code Civ.
Proc., § 437c, subd. (p)(2).) “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.” (Ibid.)
“When deciding whether to grant summary judgment, the
court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all
reasonable inference that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463,
467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a
conflict in the evidence. It is not
created by speculation, conjecture, imagination or guesswork.” (Lyons
v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041
[citation omitted].)
The
Parties’ evidence
Defendant presents her attorney’s declaration, a copy
of Plaintiff’s complaint, and portions of her January 2, 2025 deposition which
includes the expert deposition of Don L. Gifford.
In opposition, Plaintiff presents the following
evidence: portions of Plaintiff’s deposition transcript; portions of
Defendant’s transcript; portions of Zamanyan’s deposition transcript; declaration
of Plaintiff’s expert Jeff Hughes, GC, CCBI, CPCE, STSC; and photographs from
the scene of the accident.
Negligence
and Premises Liability
The elements of negligence
are (1) the defendant owed plaintiff a duty of care; (2) defendant breached the
duty; (3) plaintiff was harmed; and (4) defendant’s breach proximately caused
plaintiff’s harm. (Restatement 2d Torts,
§§ 281, 283; Nola M. v. Univ. of S. Cal. (1993) 16
Cal.App.4th 421, 426; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts,
§ 732, pp. 60-61.) The elements of
premises liability mirror those for negligence. (Nicoletti v. Kest (2023) 97
Cal.App.5th 140, 145.)
To establish premises liability, plaintiff must also
establish that: (1) defendant was the owner, occupier, or lessor of the
premises; (2) defendant was negligent in the use, maintenance or management of
the premises; and (3) the negligence caused the injury, damage, loss, or harm
to plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d
1611, 1619 [“Premises liability is a form of negligence[.]”]; see also Pultz v. Holgerson (1986) 184
Cal.App.3d 1110, 1116-17 [stating complaint for premises liability based upon
negligence is not subject to strict pleading
requirements and may be generally pled]; Barnes
v. Black (1999) 71 Cal.App.4th 1473, 1478 [“A landowner owes a duty to
exercise reasonable care to maintain his or her property in such a manner as to
avoid exposing others to an unreasonable risk of injury.”]; Nicoletti, supra, 97 Cal.App.5th at pp. 146-47
[landowners’ duty of care is not negated if it is foreseeable that someone
might choose to encounter the condition due to necessity or other
circumstances].)
Issue Nos. 1 and 2: Defendant is not entitled
to summary judgment on Plaintiff’s negligence and premise liability causes of
action because disputes exist concerning whether the green ladder was a dangerous
condition and whether Defendant knew about any dangerous conditions on the
Property.
1.
A
dispute exists concerning whether the green ladder was a dangerous condition at
the time of the accident.
Defendant contends that the ladder cannot constitute
a dangerous condition because it was not a condition of the Property. Plaintiff disputes this contention claiming
that the ladders on the Property were broken and that the green ladder was
structurally defective at the top rung.
A dangerous condition exists where the landowner was
negligent in the use or maintenance of their property. A defendant is negligent in the use or
maintenance of the property if: (1) a condition on the property created an
unreasonable risk or harm; (2) defendant knew or, through the exercise of
reasonable care, should have known about it; and (3) defendant failed to repair
the condition, protect against harm from the condition, or give adequate
warning of the condition. (CACI No.
1003.)
The undisputed evidence shows that all the ladders on
the Property are currently defective or broken, that Defendant failed to
discover the broken ladders through exercising reasonable care, and that
Defendant failed to repair the ladders or warn Plaintiff about the ladders. Defendant’s brother-in-law, Zamanyan, was
responsible for the Property’s maintenance and management even though the
parties did not present a written agreement outlining responsibilities, safety
protocols, inspections, or maintenance efforts. (Pl.’s Exh. D - Declaration of Jeff Hughes, ¶
19; Pl.’s Exh. C - Zamanyan Depo., pp. 11-13, 17). Defendant did not exercise oversight over
Zamanyan or the property. Further, the
evidence does not show that either Defendant or Zamanyan regularly inspected or
maintained the property.
A dispute exists concerning whether the green ladder that
Plaintiff used was broken or defective at the time of the accident. Plaintiff testified that he did not notice
any issues with the green ladder when he opened it. (Def.’s Exh. C - Arbi Keshishyan Depo., pp.
20:6-11, 23:1-5.) However, Zamanyan testified
that the investigator told him that all the ladders on the Property were broken
at the time of the inspection, noting that the top of the green ladder where
the color is black was cracked. (Pl.’s
Exh. C - Zhirayr Zamanyan Depo., pp. 39:24-25, 40:1-11.)
Because the undisputed evidence does not clearly
demonstrate whether the green ladder was or was not broken and defective at the
time of the accident, Defendant is not entitled to judgment as a matter of law.
2.
A
dispute exists concerning whether Defendant had actual or constructive notice
of any dangerous condition involving the green ladder.
A dispute exists concerning whether Defendant had
actual or constructive notice about the dangerous green ladder at the time of
the accident.
“[T]o charge an individual with constructive notice,
he must have, ‘actual notice of facts or circumstances which are sufficient to
put a prudent person on inquiry as to the existence of the fact with respect to
which he is charged with constructive notice.’ Therefore, a landowner cannot be charged with
constructive notice without a showing of some overt feature surrounding the
dangerous condition, which would notify the landowner of its existence.” (Jones v. Awad (2019) 39 Cal.App.5th
1200, 1209 [quoting Nicholson v. Los Angeles (1936) 5 Cal.2d 361,
364].)
“Where the occupier of land is aware of a concealed
condition involving in the absence of precautions an unreasonable risk of harm
to those coming in contact with it and is aware that a person on the premises
is about to come in contact with it, the trier of fact can reasonably conclude
that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect
that his host will remedy dangerous conditions on his account, he should
reasonably be entitled to rely upon a warning of the dangerous condition so
that he, like the host, will be in a position to take special precautions when
he comes in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d
108, 119.)
Defendant contends that she had no actual or
constructive notice of a dangerous condition involving Plaintiff’s use of the green
ladder. (Motion, p. 10:23-25.)
The undisputed evidence shows that Defendant relied
solely on Zamanyan for property management, without written agreements, rules,
or inspections, was directly related to the creation of unsafe conditions and
hazards at the premises.
(Pl.’s UMF, 24; Exh. D - Declaration of Jeff Hughes, GC, CCBI, CPCE,
STSC, CFSC, CCM, ¶ 21.) Additionally,
Defendant has only visited the property 2-3 times since purchasing it, and Defendant
has not visited the Property since the incident occurred. (Pl.’s Exh. B - Mirzakhanyan Depo., pp.
14-16, 22.) Plaintiff asserts that Defendant
had no knowledge of the Property’s basic conditions, including whether the ladders
were regularly inspected.
Because Zamanyan testified that the investigator told
him that the ladders were defective, but the evidence does not show whether
this knowledge was imputed to Defendant or whether Defendant knew about the green
ladder’s condition at the time of the accident, Defendant is not entitled to judgment as a matter of law.
The court denies Defendant’s motion for summary judgment
and, in the alternative, summary adjudication.
CONCLUSION
Defendant Arbi Keshishyan’s motion for summary judgment,
and in the alternative, summary adjudication is denied.
Defendant Arbi Keshishyan to give notice.