Judge: H. Jay Ford, III, Case: 23SMCV03453, Date: 2024-12-03 Tentative Ruling

Case Number: 23SMCV03453    Hearing Date: December 3, 2024    Dept: O

Case Name:  Baril, et al. v. Le Parc Homeowners Association, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Le Parc Homeowners Association

RESP. PARTY:         Plaintiffs George Baril and Gail Baril

TENTATIVE RULING

            Defendant Le Parc Homeowners Association’s Motion for Summary Judgment is DENIED. Defendant does meet their burden to show that one or more elements of the 1^st–3^rd causes of action in Plaintiffs George Baril and Gail Baril cannot be met, or that that a complete defense exists.

            Defendant Le Parc Homeowners Association’s Objections in the Reply are OVERRULED.

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

            Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc. §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

I.                Defendant’s Motion for Summary Adjudication Plaintiff’s Claim of Negligence. Cause of Action

“It bears repetition that the basic policy of this state ... is that everyone is responsible for any injury caused to another by his want of ordinary care or skill in the management of his property…. The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable (person) in view of the probability of injury to others ....”(Citation omitted.)  Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371.)

“It must also be emphasized that the liability imposed is for negligence. The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant's conduct.” (Id. at 372.)  

            “The ‘legal duty’ of care may be of two general types: (a) the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated, or (b) an affirmative duty where the person occupies a particular relationship to others. In the first situation, he is not liable unless he is actively careless; in the second, he may be liable for failure to act affirmatively to prevent harm.” (McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1016–1017, as modified (Sept. 22, 1997).)  “The proper test to be applied to the liability of the possessor of land in accordance with [Civil Code section 1714] is whether in the management of [one's] property [one] has acted as a reasonable [person] in view of the probability of injury to others.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672.) This duty is not limited to one who holds title over the land ‘but, rather, [is] owed by the person in possession of the land ... because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land.’” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157–1158.)  To comply with this duty, the possessor of land must “inspect [the premises] or take other proper means to ascertain their condition and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner's Golf Club, LLC (2018) 25 Cal.App.5th 826, 833.)

In considering a defendant’s motion for summary judgment the California Supreme Court explained “‘even when there is no dispute as to the facts, it usually is for the jury to decide whether the conduct in question meets the reasonable man standard ....”(Citation.) ‘In short, negligence is a (triable issue) of fact if different conclusions can be rationally drawn from the evidence.’ (Citation.) Moreover, ‘doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Citation.) (Sprecher, supra, at 372.)

Finally, “[t]he rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact. (Citation.) In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4^th 173, 189.)

            Here, Defendant Le Parc Homeowners Association (“Le Parc”) shows that it is undisputed that (1) at the time of the alleged incident Juan Urbano (“Urbano”) was an employee of Le Parc’s independent contractor, Vertical Gate Systems dba Gatesman (“Gatesman”). (SSUF, ¶¶ 1; Harwell Decl., ¶¶ 3–4, 7–8, Ex. B, C, F, G); and  (2) Urbano laid the extension cord on the public sidewalk outside of Le Parc’s property approximately forty-nine seconds before the incident occurred. (SSUF, ¶¶ 2–4; Harwell Decl., ¶¶ 7–11, Ex. F–I.)

            Le Parc argues Plaintiff George Baril’s (“Mr. Baril”) negligence claim fails as a matter of law because (1) Le Parc owed no duty to protect Plaintiff George Baril from being injured on a public sidewalk/property, (2) Le Park did not create the peril, and (3) Le Parc’s prior conduct does not create a duty. (Motion, pp. 13–16.)          Le Parc argues they did not create the peril because the incident did not occur on Le Parc’s property, the incident was not the result of any action or involvement by any Le Parc agent of employee, and there is no evidence that Le Parc affirmatively engaged in any particular activity that could reasonably lead to harm. (SSUF, ¶¶ 1–12.) Le Parc also argues even though Le Parc placed cones around the Gatesman work area the day prior to the incident, that alone would not create a duty to place cones around the work area the second day, since Le Parc did not have time to notice the potential tripping hazard within the forty-nine second window of Urbano laying the cord and Mr. Baril tripping over the cord on that second day—essentially, Le Parc placed the cones around the work area the first day only after they noticed the cord was laid out, consistent with Le Parc’s policy. (SSUF, ¶¶ 1, 4, 9–11.) Le Parc argues that it was Urbano’s responsibility to request cones, or wait until the cones were placed around the work area, prior to the beginning of work, which Urbano failed to do, and Le Parc did not have the obligation to place cones on public sidewalk. (See Harwell Decl., Ex. L – Urbano Depo., p. 39:4–9.)

Plaintiffs argue that Le Parc owed a duty of care to Mr. Baril even though the cord was placed on an adjacent sidewalk not owned by Le Parc because the sidewalk area was an adjoining strip of land used to enter Le Parc’s property similar to the circumstances in Alcaraz v. Vece (1997) 14 Cal. 4th 1149. Ordinarily, “A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 134.) However, Plaintiffs show Le Parc had control over the adjacent sidewalk; and therefore, Le Parc had a duty to protect or warn others entering Le Parc while utilizing the adjacent sidewalk.

In Alcaraz, the Plaintiff there “was injured when he stepped onto water meter box” with a broken or missing cover, “located in the lawn in front of the rental property of which [Plaintiff] was a tenant.” (Id., at pp. 1240–1241.) Plaintiff sued his landlords, but the Superior Court granted summary judgment for defendants because the meter box was not located on defendants’ property, but within an adjacent strip of land owned by the city, running between the sidewalk and defendants’ property line. (Id., at p. 1241.) The Court of Appeal reversed and the Supreme Court of California affirmed the Court of Appeal’s reversal, holding “that a triable issue of fact exists as to whether defendants exercised control over the narrow strip of land owned by the city, that was located adjacent to, and was not noticeably separate from, defendants' property, and thus had a duty to warn plaintiff of, or protect him from, the hazard in question.” (Ibid.)  The Alcaraz Court found that “[t]he proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.... This requires persons “to maintain land in their possession and control in a reasonably safe condition.” (Id., at p. 1156, citing Rowland v. Christian (1968) 69 Cal.2d 108, 119.)

Similar to Alcaraz, Le Parc had notice of the hazard on the adjacent sidewalk because the day prior to the incident Urbano was working on the incident area, Le Parc put cones around the area to designate a possibly dangerous work zone, and Le Parc was notified that Urbano would be back the next day to conduct the same work. Plaintiffs argue that the next day, the day of the incident, Urbano “announced himself to Le Parc guards, who notified Mr. Santosuosso [Le Parc’s chief engineer] of Urbano's presence through the time of Mr. Baril's fall.” (SSUF, ¶¶ 7, 10–11; Donell Decl., ¶¶ 11–12; Rabineau Decl., ¶¶ 2–4; Urbano Depo., pp. 14:15-17, 25:16-25, 26:1-4, 26:15-18, 27:14-18, 30;19-25, 39:10-15, 43;17-20, 46;4-14, 14-16, 57:12- 21; Santosuosso Depo., pp. 14:18-19, 16:8-13, Ex. 1; Cocheo Depo., pp. 15;18-25, 16:1, 35:16-21, 40:11-14.)

Le Parc also argues that notice was not effected on the day of the incident because the incident occurred under a minute from when the cord was laid on the public sidewalk.  Plaintiff, however, shows there are disputed facts that Le Parc was on notice through Urbano’s statements made the day prior, and through Urbano announcing himself to Le Parc staff on the incident day. (SSUF, ¶¶ 7, 10–11.)

Further, Le Parc provides no authority that their HOA policy standards for placing caution cones only after noticing a dangerous condition supersedes any objective duty of care. Under Alcaraz, the test for whether Le Parc owed a duty to Mr. Baril is not a subjective one, but instead an objective reasonable person standard. (See Alcaraz, supra, 14 Cal.4th at p. 1156 [“whether in the management of [Le Parc’s] property he has acted as a reasonable man in view of the probability of injury to others.... This requires persons “to maintain land in their possession and control in a reasonably safe condition”].) Thus, whether Le Parc followed their own HOA policies does not define the scope of Le Parc’s duty.  At best, is one factor examined when deciding whether Le Parc breached its duty of care.

Plaintiff provides evidence that Le Parc had control over the cord, or the dangerous condition, and the adjacent sidewalk where the incident took place, through deposition testimony from Urbano, and various Le Parc employees that Le Parc instructed Urbano to move the cord from the sidewalk to the top of the yellow fence after the incident. (Oppo., p. 7; SSUF, ¶¶ 7, 10–11.) As Plaintiffs point out, under Alcaraz, this type of evidence cannot be brought in to prove negligence as a subsequent remedial measure, however, the evidence can be utilized to show whether Le Parc exercised control over the adjacent property. (See Alcaraz, supra 14 Cal.4th at p. 1170. [“evidence establishing that defendants constructed the fence after plaintiff was injured would not be admissible at trial to prove that defendants were negligent but would be admissible to demonstrate that defendants exercised control over the premises. Accordingly, we may consider such evidence in determining whether a triable issue of material fact existed concerning whether defendants exercised control over the strip of land and thus owed a duty of care to plaintiff”].) The Court finds Plaintiff provides disputed material facts regarding Le Parc’s control over the adjacent property and the cord that caused the incident.  (See e.g. Judicial Council Of California Civil Jury Instruction Nos. 1002 (Extent of Control Over Premises Area), 1003 (Unsafe Conditions.), 1007 (Sidewalk Abutting Property.)

Le Parc argues there is no causal link between actions of Le Parc and Mr. Baril’s injury first by stating “Plaintiffs cannot submit any evidence that Le Parc is the proximate cause of Mr. Baril’s claimed injuries.” (SSUF, ¶¶ 1–4.) However, “pointing out the absence of evidence to support a plaintiff's claim is insufficient to meet the moving defendant's initial burden of production. The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; see Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808 [“It was not enough simply to assert that [Plaintiff] had no evidence supporting an element of each cause of action; a moving defendant “must indeed present ‘evidence,’ ” such as “ ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken”].)

Finally, Le Parc argues that that Le Parc did not employ Urbano, Urbano was a independent contractor, and there is no causation between Le Parc the injury because a non-employee, Urbano, was the cause of the injury. (Motion, pp. 16–17.) Further, without citation to any authority, Le Parc argues that since Urbano was not an employee, Le Parc had no obligation to supervise Urbano. The Court is not persuaded. The fact that Urbano was not an employee of Le Parc does not define Le Parc’s duty or its liability for injuries caused by its own negligence in failing

 Based on the evidence presented, the Court is not persuaded that Le Parc did not have any duty to use reasonable care to protect Plaintiff from the danger arising from Urbano’s work on defendants' property, including the danger arising from Urbano's  placment of a power cord on the public sidewalk directly accross the path to the gated entry to the Defendants property. Thus, Le Parc does not meet their burden to show “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action” as to the negligence cause of action. (Code Civ. Proc. §437c(o)(2).)  

II.             Defendant’s Motion for Summary Adjudication of Plaintiff’s claims of Negligent Hiring and Supervision.

Le Parc argues Plaintiffs negligent retention, supervision and hiring cause of action lacks merit because Le Parc is not liable for negligence of Urbano, an independent contractor. It is undisputed that Gatesman is a third-party vendor that was hired by the HOA to repair the gate systems at Le Parc, install fencing, and repair all fencing around the property. (SSUF, ¶ 6.) It is undisputed that Urbano is an employe of Gatesman who was completing the contracted work at the time of incident. (SSUF, ¶¶ 1, 8, 9.)  Le Parc cites to Fonseca v. County of Orange (1972) 28 Cal.App.3d 361 for the proposition that, “[t]he employer of an independent contractor is ordinarily not liable to third parties for the contractor's negligence.” (Fonseca, supra, 28 Cal.App.3d at p. 365.) However, Le Parc omits the sentence immediately following this quote which states, “[h]owever, the general rule is subject to exceptions of such magnitude as to leave only a small area in which the general rule operates. [citations] In fact, the exceptions have almost emasculated the general rule.” (Ibid.) Fonseca further states that there is an exception to the general rule granting immunity to independent contractors which provides:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

(Ibid.)

            Le Parc does not provide any authority or evidence that Gatesman’s work via Urbano was not of a peculiar risk of physical harm to others unless special precautions were taken. In fact, the evidence shows that on the date prior, Le Parc’s employees placed cones around Urbano’s work area thus showing Le Parc thought the work constituted a situation that warranted a warning to the public of a peculiar risk.  Le Parc citers to Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal. App. 4th 1001 for the proposition that the only exception to the general rule is when independent contractors are involved in a motor vehicle accident on a public highway and the employer is also a for-hire carrier. However, this argument is completely without merit and even negated within the same case cited by Le Parc. The overall rule as stated in Hill Brothers Chemical Co. is “an individual or corporation undertakes to carry on an activity involving possible danger to the public under a license or franchise granted by public authority subject to certain obligations or liabilities imposed by the public authority, these liabilities may not be evaded by delegating performance to an independent contractor. The original contractor remains subject to liability for harm caused by the negligence of the independent contractor employed to do the work.” (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1008.) The issue in Hill Brothers Chemical Co involved a highway accident, and thus is distinguishable from the situation at hand, plus is one of many exceptions to the general rule that an employer of an independent contractor is not liable to third parties for the contractors negligence.

            Le Parc argues that Plaintiffs have not provided any evidence that Le Parc negligently retained, supervised or hired John Burton, the HOA’s general manager at the time of incident. Again, this argument will not satisfy Le Parc’s burden on summary judgment. (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 [“pointing out the absence of evidence to support a plaintiff's claim is insufficient to meet the moving defendant's initial burden of production. The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim”].)

            Thus, Le Parc has not met their burden to show that one or more elements of the negligent supervision, hiring and retention cause of action cannot be met, or a that there is a defense thereto. The Court need not analyze whether Plaintiff’s have met their burden to show a triable issue of material fact.             Le Parc’s motion for summary adjudication of Plaintiff’s claims for negligent hiring, supervision and retention are DENIED.

III.           Defendant’s Motion for Summary Adjudication of Plaintiff’s claim for Loss of Consortium.

Le Parc does not meet their burden to show that one or more elements of Plaintiff’s Loss of Consortium cause of action cannot be met, or a defense thereto, because Le Parc bases their argument for this cause of action on a successful summary judgment motion as to the negligence causes of action. Le Parc offers no evidence, declarations, or authority to meet their burden, and thus Le Parc’s motion for summary adjudication of the claim for loss of consortium is DENIED.