Judge: Lisa R. Jaskol, Case: 20STCV10279, Date: 2024-04-18 Tentative Ruling
All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.
Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line. If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.
If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.
Case Number: 20STCV10279 Hearing Date: April 23, 2024 Dept: 28
Having considered the moving, opposition, 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, Shawnda Foster, Kibron Asrat, International Realty & Investments, Malcolm Bennett, and Does 1-100 for general negligence and premises liability.
On October 6, 2020, the Court granted the motion to strike filed by Defendant Shawnda Thomas (erroneously sued and served as Shawnda Foster) and struck Plaintiff’s claim against Defendant Shawnda Thomas for punitive damages with leave to amend.
On November 17, 2020, Plaintiff filed a first amended complaint against Defendants Queen Arms Homeowners Association (“HOA”), Steven Thomas (“Steven Thomas”), Shawnda Foster, Kibron Asrat, International Realty & Investments, Malcolm Bennett, and Does 1-100 for general negligence and premises liability.
On December 16, 2020, Defendants HOA and Mac Bennett Enterprises, Inc. dba International Realty & Investments filed answers to the first amended complaint. In addition, Defendants HOA and Mac Bennett Enterprises, Inc. dba International Realty & Investments filed a cross-complaint against Cross-Defendants Steven Thomas and Roes 1-25 for equitable indemnity, contribution, and declaratory relief.
On December 30, 2020, Steven Thomas filed an answer to Plaintiff’s first amended complaint.
On February 3, 2021, Defendant Kibrom Asrat, erroneously sued and served as Kibron Asrat (“Asrat”), filed an answer and a cross-complaint against Cross-Defendants Steven Thomas and Roes 1-100 for implied indemnity, contribution, and declaratory relief. On January 25, 2022, Steven Thomas filed an answer to Asrat’s cross-complaint.
On February 18, 2021, the Court (1) sustained Defendant Malcolm Bennett’s demurrer to Plaintiff’s first amended complaint with leave to amend and (2) overruled the demurrer of Defendant Shawnda Thomas (erroneously sued and served as Shawnda Foster) (“Shawnda Thomas”).
On March 18, 2021, Shawnda Thomas filed an answer to Plaintiff’s first amended complaint.
On March 24, 2021, the Court dismissed Defendant Malcolm Bennett with prejudice at Plaintiff’s request.
On April 20, 2023, the Court granted Asrat’s motion for summary judgment. On May 5, 2023, the Court entered judgment for Asrat. On June 30, 2023, Plaintiff filed a notice of appeal.
On March 10, 2024, Shawnda Thomas filed a joinder in the motion for summary judgment filed by HOA and International Realty & Investments on March 10, 2023. Shawnda Thomas filed her own separate statement of undisputed material facts and documentary evidence in support of her joinder.
On February 16, 2024, Plaintiff filed an opposition to Shawnda Thomas’s motion for summary judgment. On March 28, 2024, Shawnda Thomas filed a reply.
On April 9, 2024, the Court ruled that Shawnda Thomas’s joinder in the motion for summary judgment, without reserving a separate hearing date, was not proper because she had filed a separate statement and supporting evidence. The Court took the joinder off calendar.
On April 11, 2024, Shawnda Thomas filed a motion for summary judgment to be heard on September 26, 2024. On April 18, 2024, the Court advanced the hearing on the motion (previously filed as a joinder) to April 23, 2024.
On April 18, 2024, the Court granted the summary judgment motion filed by HOA and International Realty & Investments.
Trial is currently set for May 23, 2024.
PARTIES’ REQUESTS
Shawnda Thomas asks the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
SHAWNDA THOMAS'S EVIDENTIARY OBJECTIONS
Sustained
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In addition, a party moving for summary judgment must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.) “[A] court cannot grant summary judgment based on inferences that are contradicted by other inferences or evidence. And a triable issue of fact exists when the evidence permits a reasonable trier of fact to find a contested fact in favor of the party opposing the motion. [Citation.] Put slightly differently, a summary judgment may not be granted unless the evidence is incapable of supporting a judgment for the losing party.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.)
B. Negligence and premises liability
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
DISCUSSION
A. The first amended complaint
The first amended complaint alleges the following:
Queen Arms is a common interest development consisting of eight condominium units and common areas in Inglewood. Defendant International Realty & Investments is a property management company that manages the property.
Steven Thomas and Shawnda Thomas lived in unit 7 of the development. They engaged in domestic disputes including a stabbing incident. Thomas threatened other HOA residents and visitors.
Asrat lived in unit 3. Asrat hired Plaintiff, a general contractor, to perform construction renovations in his condominium unit.
In October 2018, Steven Thomas threatened to shoot and kill an electrician working on Asrat’s unit. On December 12, 2018, Steven Thomas attacked Plaintiff, but Plaintiff subdued him.
On January 19, 2019, Steven Thomas shot Plaintiff in the abdomen, injuring him.
B. Undisputed facts
From before 2018 through the present, Shawnda Thomas has been the president of the Queen Arms Owners Association Board.
Plaintiff alleges that on January 19, 2019, Steven Thomas shot him. At the time of the incident, Shawnda Thomas and Steven Thomas were co-owners and lived together in Unit #7 of the property.
Prior to the incident, Plaintiff visited the property and had several encounters with Steven Thomas, without incident. However, Plaintiff alleges that on December 12, 2018, he and Steven Thomas had an altercation when Steven Thomas initiated a fistfight.
Shawnda Thomas did not own or possess the public sidewalk where the incident occurred. She did not maintain, manage, fence in, repair, or alter the sidewalk where the subject incident occurred and did not block or restrict public access to the sidewalk.
C. The summary judgment motion and opposition
“A defendant's control over property is sufficient to create a duty to protect owed to persons using the property.” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 497 (Colonial Van & Storage), citing Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, 1166; Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177 (Soto) [“the rationale being that whoever has the means to control the property can take steps to prevent the harm”].) “Conversely, absent any control of the property, a defendant cannot be held liable for a dangerous condition on that property.” (Ibid., citing Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1241 [“ ‘[t]he law does not impose responsibility where there is no duty because of the absence of a right to control’ ”]; Soto, supra, 45 Cal.App.5th at p. 177; Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084 [generally, there is no right to control another's property].)
“ ‘In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.’ ” (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487, quoting Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81; see Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1091 [“California cases which have considered a property owner's duty in the context of injuries occurring off the property have imposed liability only if the harm was foreseeable and the owner controlled the site of the injury [citation], or affirmatively created a dangerous condition on the site [citation] or if there was a functional connection between the owner's conduct and the injury suffered [citation]. None of these factors are present in the case before us” (original emphasis)].)
Shawnda Thomas has presented evidence that the shooting occurred on public property which she did not own, possess, or control. (See Exh. B [Smiley depo.] pp. 80-81, 117; Exh. D [Steven Thomas depo.] p. 19; Exh. E [Shawnda Thomas dec.] ¶¶ 5-7.) Shawnda Thomas has carried her initial summary judgment burden on this issue, shifting the burden to Plaintiff.
In response, Plaintiff argues that Steven Thomas’s deposition testimony establishes that the shooting occurred while Plaintiff and Asrat were talking in the entranceway to the driveway going down to the carport of the HOA's property. (See Plaintiff’s response to UMF 3.) At his deposition, Steven Thomas testified that he saw Plaintiff talking to Asrat “in the entranceway of the driveway going down to the carport.” (Steven Thomas depo. p. 18.) Steven Thomas “had just pulled up and stuff and drove up in [his] car when [he saw] [Plaintiff].” (Steven Thomas depo. p. 18.) At that point, Steven Thomas did not have his gun with him. (Steven Thomas depo. p. 19.) Steven Thomas walked up the stairs to his unit and came back downstairs with his gun. (Steven Thomas depo. p. 19.) Then “I went -- I was on the sidewalk. I asked [Plaintiff] – you know, I made a statement to him and stuff and asked him to leave.” (Steven Thomas depo. p. 19, emphasis added.) Steven Thomas then shot Plaintiff. (David Smiley depo. pp. 80-81.)
Plaintiff has failed to raise a triable issue of fact concerning whether Steven Thomas shot Plaintiff on the public sidewalk next to the HOA’s property. It is undisputed that Shawnda Thomas did not own or possess the public sidewalk where the shooting took place, did not maintain, manage, fence in, repair, or alter the sidewalk where the incident occurred, and did not block or restrict public access to the sidewalk. (UMF 10-11.) Because Shawnda Thomas did not own, possess, or control the premises where the shooting took place, Shawnda Thomas did not owe Plaintiff a duty of care.
CONCLUSION
The Court GRANTS the motion for summary judgment filed by Defendant Shawnda Thomas.
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.