Judge Jill Feeney, Case 20STCV45897 2022-10-21 Tentative Ruling

Plaintiff argues that Defendant had actual and constructive notice of unreasonably dangerous conditions on its premises. Plaintiff also argues that Defendant owed a duty of care to Plaintiff to maintain its subject premises in a reasonably safe condition under an implied warranty of habitability. Plaintiff also argues that Defendant failed to make reasonable inspections of the premises. Plaintiff also argues that the stairway where Plaintiff fell does not meet health and safety codes, electrical codes, and building codes.

Under California Evidence Code section 453, the Court shall take judicial notice of any matter specified in section 452 if a party requests it and (a) gives each adverse party sufficient notice of the request to enable such adverse party to prepare to meet the request and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter. Under California Evidence Code section 452, the Court may take judicial notice, among other things, of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States and facts, court records, and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (§ 452(c), (d), (h).) The Court can take judicial notice of the official acts of a state including records, orders, and reports of its administrative agencies. (Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518.) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.

The Court will only examine the objections to the portions of Paragraphs 7, 8, 9 of the expert’s declaration on which the Court relied. The Court need not decide the remainder of the objections as the underlying materials are irrelevant to the decision here.

The purpose of a motion for summary judgment “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(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.)

“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(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.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“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 inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)

“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.) “[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.)

“A written release may exculpate a tortfeasor from future negligence or misconduct.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356. “To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Benedek, supra, 104 Cal.App.4th at p. 1356.) “In the absence of extrinsic evidence, the scope of a release is determined by the express language of the release.” (Id at p. 1357.)

However, “a commercial landowner cannot totally abrogate its landowner responsibilities merely by signing a lease… At the time the lease is executed and upon renewal…a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions.” (Mora, supra, 210 Cal.App.3d 771 at p. 781.) “[T]he landlord’s responsibility to inspect is limited. Like a residential landlord, the duty to inspect charges the lessor only with those matters would have been disclosed by a reasonable inspection.” (Id. at p. 782.) “Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain condition, the landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger.” (Id at p.781.)

“The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. 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.” (Id. at p. 782.)

Defendant’s evidence shows that Plaintiff’s employer, Bridges to Recovery (“BTR”), operated a residential healthcare facility at a property located at 10201 Charing Cross Road, Los Angeles, CA, 90024 which Defendant leased to BTR. (UMF No. 21; Neman Decl., ¶21.) Defendant first leased the property to BTR on December 5, 2012. (UMF No. 21; Neman Decl., ¶9.) BTR exercised its option to lease the property for two additional years through December 2015. (UMF No. 22-23; Neman Decl., ¶11.) BTR again extended its lease for another two years through December 2017 and again through December 2019. (UMF No. 24.)

Tenant shall properly use, operate, and safeguard Premises, including if applicable, any landscaping, furniture, furnishings and appliances, and all mechanical, electrical, gas and plumbing fixtures, and keep them and the Premises clean, sanitary and well ventilated…Tenant shall immediately notify Landlord, in writing, of any problem, malfunction, or damage.

(UMF No. 27; Appendix, Exh. A, ¶11.) Defendant was never responsible for the maintenance or repair of any aspect of the motion sensor light or any other lighting at the back steps on the property. (UMF No. 28; Neman Decl., ¶18.) During walkthroughs of the premises, Defendant was never apprised of problems with the back steps or any other conditions with the back light or any sensor light. (UMF No. 31; Neman Decl., ¶21.) Since BTR took possession of the premises in 2015, BTR maintained the back steps and the motion sensor light. (UMF No. 32; Neman Decl., ¶22.)

On June 22, 2019, Plaintiff slipped while descending three steps at the back of the premises, where a sensor light had broken and where the bottom step had an indentation or gouge. (UMF Nos. 38-39.) As Plaintiff descended the steps, she noticed the sensor light that was usually there did not turn on and hesitated. (UMF Nos. 48-49, Mitchell Decl., 86:7-14.) Plaintiff’s foot was halfway off the first step when she lost her balance. (Id., 86:20-87:19.) Her left foot went to the side, propelling her right foot to the bottom step. (Id.,98:11-16.) Her right foot skipped the bottom step and hit the ground where she heard her bone pop. (Id., 100:10-15.)

Defendant’s evidence demonstrates that Plaintiff’s fall was caused by a defective sensor light which did not turn on the night of the fall, causing Plaintiff to lose balance on the three steps leading out of the back of the property. Defendant was not responsible for maintaining the lights and was never apprised of the defective condition of the lights. Defendant was also never apprised of any dangerous condition with respect to the steps themselves. Thus, Defendant meets its burden of showing no triable issue of material fact exists over whether Defendant had notice of the alleged dangerous condition.

The burden shifts to Plaintiff. Plaintiff alleges that the stairway at issue had a defective step and that her right foot was caught in a gouge/hole on the defective step. (UMF No. 74.) Plaintiff fell in part due to the lack of lighting and lack of a handrail. (UMF No. 74.) The stairway was in violation of the applicable building codes at the time of the incident and the defective step was in a dangerous condition. (UMF No. 76.)

Plaintiff provides an expert who testifies as to the condition of the stairway at issue. Specifically, the stairway is in violation of section 3305 of the 1967 Uniform Building Code, which states “the maximum variations in the height of risers and the width of treads in any one flight shall be three-six-teenths inch.” (Rosescu Decl., ¶8.) The bottom and middle step have variations that are in excess of the 3/16” allowed. (Id.) Further according to the expert, UBC Section 3305(i) states “stairways serving one individual dwelling unit in Group H or I Occupancies may have one handrail.” (Id.) At the time of the incident, no handrail was present. (Id.) The expert further opines that the handrails help prevent falls and injuries when falling. (Id. at ¶7.) The Court believes that this is proper expert opinion. That said, this point seems to be a commonsense inference. The expert also states variations in riser height and width of treads increase the chances of a fall by impacting the user’s balance. (Id. at ¶9.)

Here, Plaintiff’s evidence shows that there are triable issues of material fact over whether Defendant had notice of a dangerous condition in the stairway. Plaintiff’s expert testifies that the stairs are not code compliant because of impermissible variations with respect to the steps and a lack of a handrail. The steps’ variances and lack of a handrail would have been present at the time Defendant purchased the premises because Defendant has never remodeled the premises and there have never been handrails on the stairs before the incident. Although Defendant’s PMK testifies that the stairs are up to code, Plaintiff’s expert disputes this by offering his findings that the variances and lack of a handrail are not up to code. These disputes alone are enough to show that there are triable issues of fact over whether Defendant had notice of a dangerous condition with respect to the stairs.

In reply, Defendants that Plaintiff never disclosed the lack of a handrail as a statutory violation as a theory of liability. Defendant argues that it asked Plaintiff to state any and all statutes she contended Defendant violated in its form interrogatories. Plaintiff answered she was “unable to reasonably respond to [the] interrogatory without conducting further investigation and discovery.” (Reply, p. 3.)

However, Defendant was on notice that Plaintiff was pursuing this theory of liability because Plaintiff’s counsel asked extensive questions about handrails during the deposition of Defendant’s PMQ, including whether it was required that the steps have a handrail.. (11/4/21 Deposition Transcript of David Neman at pg. 54 and in numerous other places.) Furthermore, during her deposition, Plaintiff specifically stated that she contended that the lack of a handrail was a contributing factor to her fall and that she would not have fallen if the stairs had been up to code. (11/2/21 Deposition Transcript of Valena Mitchell at pgs. 229-230.)

Defendant also contends that under the facts here there is no evidence that the lack of handrail caused the accident since Plaintiff’s hands were full at the time of the accident. However, this is an argument related to causation and not notice of a dangerous condition, which is the subject of this motion.

Given that Defendant is aware of Uniform Building Code requirements enough to claim the stairs were code compliant, a reasonable inspection of the premises should have revealed the code violations in the stairway. Thus, there are genuine issues of material fact over whether Defendant had constructive notice of a dangerous condition on the stairway at issue. For these reasons, the motion for summary judgment is denied.

“Unless otherwise limited by order of the court …, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action …, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).)

The parties do not dispute that Plaintiff placed her mental, emotional, and psychiatric related injuries and damages at issue by alleging she suffered psychiatric injury, an acute stress reaction, post-concussive syndrome, and other injuries as a result of the subject incident. Plaintiff agreed to submit to the examination. Accordingly, Defendant’s motion compelling Plaintiff’s independent medical examination is granted.