Judge: Kristin S. Escalante , Case: 20STCV30326, Date: 2023-03-30 Tentative Ruling



DEPARTMENT 24 - LAW AND MOTION RULINGS
Submission Instructions.


1. Please notify the courtroom staff by email not later than 4:00 p.m. the day before the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SMCDEPT24@lacourt.org. Please do not use any other email address.  You must cc all other parties on the email.

2.  Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, case name and number, date of hearing and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions

3. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a motion placed off-calendar and parties are ordered to cancel the reservation on CRS. 

4. If all parties submit, the tentative ruling will become the final ruling after the hearing date. The moving party shall give notice of the final ruling.

5.Tentative rulings are not invitations or opportunities to file further documents relative to the hearing before the Court.  Said document(s) will not be considered by the Court.

                          




Case Number: 20STCV30326    Hearing Date: March 30, 2023    Dept: 24

MOVING PARTY: Peter Sacker (Defendant); 1212 North Clark St., LLC (Defendant)

RESP.  PARTY: Tim Purcell (Plaintiff); Samantha Lopez (Plaintiff)

SERVICE:    

 

NATURE OF PROCEEDINGS: Hearing on Motion for Summary Judgment of Defendants Peter Sacker and 1212 North Clark St., LLC

 

TENTATIVE RULING:

The above-captioned matters are called for hearing.

 

The Court has read the moving papers in the above-captioned motions and announces its tentative rulings in open Court.

 

The Motion for Summary Judgment of Defendants Peter Sacker and 1212 North Clark St., LLC reservation no.: 017147748381 filed by Defendants Peter Sacker and 1212 North Clark St., LLC on 01/05/2023 is DENIED.

 

Defendants Peter Sacker (“Sacker”) and 1212 North Clark St., LLC (“North Clark”) (collectively “Defendants”) move for summary judgment on the complaint filed by Plaintiffs Tim Purcell (“Purcell”) and Samantha Lopez (collectively “Plaintiffs”). Specifically, they argue that Plaintiffs cannot establish that Defendants had no notice or knowledge of a dangerous condition which caused Plaintiffs’ injuries as required under the law. (Motion at p. 5.)

 

Plaintiffs filed suit against Sacker, Gregory Stone (“Stone”), and Linda Greif (“Greif”) on August 11, 2020. On Plaintiffs allege one cause of action for negligence. On October 13, 2020, they amended the complaint to substitute a fictitiously named doe with North Clark.

 

The allegations are that Plaintiffs leased unit 6 of the real property located at 1212 Clark Street, West Hollywood (“subject property”). North Clark leased the unit to Plaintiffs; however, Sacker is the managing member of North Clark and owner/landlord of the subject property. Greif leased unit seven and her adult son, Stone, lived in the unit. On August 16, 2018, there was a structural fire at the subject property which completely engulfed units 6 and 7. Los Angele County Fire Department responded to the fire, and Fire Battalion Chief Banuelos stated the fire was caused by an electrical malfunction in unit 7. Plaintiffs alleged each defendant failed to exercise the requisite duty of care owed to Plaintiff and as a direct and proximate cause of their failures, they harmed Plaintiff and caused substantial property damages.

 

Undisputed facts

 

Defendants own and/or operate the subject property. (USSF No. 1 [USSF refers to undisputed facts].) Stone entered into a lease agreement with Sacker for unit 7 in August 2016. (USSF No. 2.) Purcell lived in unit 6 from August 2009 to August 2018. (USSF No. 3.) At some disputed time, Stone began growing marijuana plants on his balcony. Stone did not speak to Defendants regarding growing marijuana on his balcony prior to beginning. (USSF No. 5.) During a meeting between Stone and Sackler, Stone agreed to remove his marijuana growing from the subject property. (USSF No. 7.) A month later, Stone began an indoor marijuana growing operation without communicating or discussing it with Defendants. (USSF Nos. 10-12.) Stone never requested Defendants make repairs to his unit after the indoor growing operation commenced. (USSF No. 14) On several occasions after Stone began his indoor growing, the electrical breakers in Stone’s unit needed to be replaced after tripping. (USSF No. 15.) Approximately three months after Stone began his indoor marijuana operation a fire occurred in his unit which also damaged Plaintiffs’ unit. (USSF No. 17.) Prior to the fire, Defendants did not know that Stone’s unit had been experiencing electrical problems related to his growing operation, or that his indoor operation was tripping the breakers. (USSF No. 20-21.)

 

DISCUSSION

 

1. Legal Standard

 

In reviewing a motion for summary judgment, the Court must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has met his or her initial burden; 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.) “[T]he 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

 

A moving defendant may satisfy the initial burden to show that one or more elements cannot be established by “presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on the plaintiff's factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119.) Unless and until a defendant meets that burden, the plaintiff has no burden to present controverting evidence.  (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468 [“There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.”])  If 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.”  (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials in its pleadings to show that a triable issue of material fact exists, but instead “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)    

 

2. Negligence Claim

 

The issue is whether Plaintiffs can demonstrate that Defendants had actual or constructive knowledge of the dangerous condition brought by a third person.

 

Landlords are obliged to keep premises reasonably safe for tenants and third parties. (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1467.) A “dangerous condition is brought about by natural wear and tear, or third persons. . .which are not due to the negligence of the owner, or his employees, then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises.” (Hatfield v. Levy Bros. (1941) 18 Cal. 2d 798, 806.) The landlord’s negligence is “founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” (Ibid.)

 

Defendants argue Plaintiffs cannot prove they had actual or constructive knowledge of Stone’s indoor marijuana growing operation or the impact such an operation had on the electrical. They rely on Stone’s deposition testimony, Sacker’s declaration, Purcell’s response to discovery and the fire department incident report regarding the subject property. (Declaration of Mazyar Mazarei [“Mazarei Decl.”], ¶¶2-4.)

 

Sacker declares that in 2016 Stone moved in and almost immediately began growing marijuana plants on his balcony. After learning of Stone’s marijuana plants, Sacker spoke with Stone. Stone agreed to remove the marijuana plants and Sacker’s maintenance worker—Stevan Malesa (“Stevan”) confirmed the removal. It was only after the fire in 2018 that Sacker learned Stone had an indoor marijuana growing operation. Stone had not informed Sacker of issues with the electrical breakers in unit 7 or requested repairs.

 

Stone testifies that not long after he moved to unit 7 of the subject property he brought marijuana plants onto his balcony. Within a few weeks of that Sacker then approached him about the plants and Stone decided to remove them from the balcony and from the building. At some point afterward Stone decided to bring two of the plants back indoors and grow them. The indoor growing system was in place for at least three months prior to the fire. During that time Stevan was aware of the indoor facility and was in the apartment unit at least four times. Sacker had not observed the growing facility. While growing the plants, Stone tripped the electrical breakers on occasion, and he replaced them. He informed Sacker of replacing at least one of the breakers.

 

Defendants also attach Purcell’s responses to defendants first set of form-interrogatories. There are some responses with “XX” as the answer. It is unclear whether this is because Purcell refused to answer the interrogatory or because Defendants did not ask the question and Purcell is noting that. Defendants do not attach the underlying propounded discovery request.

 

The evidence presented does not demonstrate that Plaintiffs cannot prove their case. It is insufficient for the defendant to merely point out the absence of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 fn 23; see also Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant must present evidence, typically in the form of factually devoid discovery responses, showing that plaintiff does not have and cannot obtain evidence to support his or her claim.” (Gaggero, supra, 108 Cal.App.4th at p. 891.) Defendants have presented evidence supporting that they were unaware of the marijuana growing operation. They have not presented evidence demonstrating Plaintiff cannot prove they were aware. To the extent Defendants rely on the attached discovery responses, the responses do not show Plaintiffs cannot meet their burden of proof. Thus, having not meet their initial burden, Defendants’ motion is denied.

 

Alternatively, if Defendants had met their burden, Plaintiffs have presented evidence in support of Defendants’ knowledge of Stone’s growing operation and electrical issues in unit 7.

 

Plaintiffs primarily rely on the transcription of a voicemail from Sacker to Purcell from August 2018. (Declaration of Alan Tavelman [“Tavelman Decl.,”], ¶ 2, Ex. 1.) The voicemail transcript states “I know he had plants there previously, months ago, but when I saw them, I said, they got to go. So they were taken out months ago. I don't know who said this, maybe Ava said, oh, he had pot plants there, and I said, I don’t think so, and I think I was in that apartment last month to pick up a rent check. And those plants that he had, which whether they were legal or not, I said, no, I don’t want them at the building. That’s not cool, no. No lights, no plants, no. Bring them to your mother.” (Tavelman Decl., ¶ 2, Ex. 1 at p. 3.) The voicemail is unclear about what period of time Sacker is speaking about—i.e., in 2016 or in 2018, when Sacker went to pick up a rent check. Plaintiffs argue the voicemail is an admission that Sacker was in the apartment in 2018 to pick up a rent check and must have witnessed the indoor plants, while Sacker argues the voicemail is referring to 2016. This presents a material dispute regarding whether Sacker may have been in unit 7 in 2018 and witnessed the indoor growing operation. Additionally, Stone’s testimony supports that on at least one occasion Stone made Sacker aware of electrical issues in unit 7, and Sacker’s employee, Stevan, was aware of the indoor growing operation. These combined facts are sufficient to create a material dispute regarding whether Defendants had actual or constructive knowledge of a dangerous condition—i.e., an electrical burden—brought about Stone’s indoor growing operation.

 

Plaintiffs also attach the fire report, which is ambiguous about the source of the fire. It states “it has been determine that this fire was accidentally caused by a non-specific electrical malfunction of an electrical appliance in the dining room.” (Tavelman Decl., ¶4, Ex. 3 at p. 2.) The report does change the outcome as it neither confirms nor denies either theory regarding the impact of the growing operation.

 

Accordingly, summary judgment is denied.

 

Moving party is directed to give notice.