Judge: Lisa R. Jaskol, Case: 20STCV35988, Date: 2024-01-10 Tentative Ruling

Case Number: 20STCV35988    Hearing Date: January 10, 2024    Dept: 28

Having considered the moving, opposing, and reply papers, the Court rules as follows.  

BACKGROUND 

On September 21, 2020, Plaintiff Larysa Kotandzhyan (“Plaintiff”) filed this action against Defendants Broutian Family Trust (“Trust”), Harout Broutian as an individual and as Trustee of the Broutian Family Trust (“Broutian”), and Does 1-50 for general negligence and premises liability.  On August 28, 2023, Plaintiff amended the complaint to include Defendant Albro, LLC (“Albro”) as Doe 1. 

On December 17, 2020, Plaintiff filed a first amended complaint. 

On March 19, 2021, Broutian (in his individual capacity) filed an answer and a cross-complaint against Cross-Defendants Roes 1-20 for indemnification, apportionment of fault, and declaratory relief.  

On November 6, 2023, Albro filed an answer and a cross-complaint against Cross-Defendants Moes 1-100 for indemnification, apportionment of fault, and declaratory relief.  

On November 23, 2022, Broutian filed a motion for summary judgment to be heard on August 9, 2023. The Court continued the hearing on the motion to December 7, 2023 at Plaintiff’s request and later continued the hearing to January 10, 2024.  On November 22, 2023, Plaintiff filed an opposition. On November 30, 2023, Broutian filed a reply. 

Trial is currently scheduled for February 14, 2024. 

PARTIES’ REQUESTS 

Broutian requests that the Court grant summary judgment. 

Plaintiff requests that the Court deny the motion. 

PLAINTIFF’S EVIDENTIARY OBJECTIONS 

The Court overrules Plaintiff’s evidentiary objections. 

PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE 

          The Court grants Plaintiff’s request for judicial notice.  (Evid. Code, § 452, subd. (c).) 

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.) 

          When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

          “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 or summary adjudication 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) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) 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 of the evidence and all of 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.)  

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.  [Citations.]  Premises liability ‘is grounded in the possession of the premises and the attendant right to control and manage the premises’; accordingly, ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’  [Citation.]  But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.”  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159, quoting Preston v. Goldman (1986) 42 Cal.3d 108, 118.) 

“ ‘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.) 

“ ‘ “Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others....” ' [Citation.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411 (Salinas), quoting Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747 (Padilla).) “ ‘Civil Code section 1714 sets forth the general duty of a property owner toward others: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” The application of this provision entails an inquiry as to “whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others....” [Citations.]’ ” (Id. at pp. 411-412, quoting Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659 (Laico).) “A landowner ‘ “ ‘has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’ ” ’ [Citation.]’ ” (Id. at p. 412, quoting Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.) 

“ ‘An exception to the statutory rule of liability for failure to use ordinary care in the management of one's property requires clear support in public policy.’ ” (Salinas, supra, 166 Cal.App.4th at p. 412, quoting Laico, supra, 123 Cal.App.4th at pp. 659–660.) “ ‘ “In the case of a landowner's liability for injuries to persons on the property, the determination of whether a duty exists, ‘involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citations.]” [Citation.]’ ” (Ibid., quoting Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 430.) “ ‘Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.’ ” (Ibid., quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) “The existence and scope of a defendant's duty is a question of law for the court's resolution.” (Ibid., citing Shin v. Ahn (2007) 42 Cal.4th 482, 488.) 

“[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord's duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control.” (Salinas, supra, 166 Cal.App.4th at p. 412.)  “ ‘ “Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before 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.” [¶] Limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.’ ” (Ibid., quoting Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint alleges the following: 

On March 1, 2020, Plaintiff was leaving Defendant’s property/premises at Pacoima Collision Center, located at 9871 San Fernando Road in Pacoima, California, when she slipped and fell down the staircase due to unnatural, hazardous conditions, sustaining serious injuries and damages. 

Trust owns, controls, and manages the property/premises upon which Plaintiff sustained injuries.  Broutian and Trust negligently owned, maintained, and operated the premises.  Broutian and Trust willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity. 

B.   Undisputed facts 

Broutian owns a multiunit commercial building located at 9871 San Fernando Road, Pacoima, CA 91331. The building is a commercial property that is divided up into 12 separate units for lease.  The units are leased to tenants.  Each unit has its own separate, large garage style door for entrance.  (UMF 6-11.) 

Broutian does not allow illegal activity, including cannabis growth, in any of the units.  (UMF 12.) 

Plaintiff testified at her deposition that on March 1, 2020, she was hired to work as a day laborer with plants.  (Plaintiff’s response to UMF 13; see Exh. 5 p. 29 [“Armen,” who drove Plaintiff to the job site, told Plaintiff that “you need to use scissors to cut some weeds”].)  Plaintiff testified that she walked upstairs to the second floor because the work was supposed to be done on the second floor.  (Plaintiff’s response to UMF 14; see Exh. 5 p. 36.)  Plaintiff testified that she tried to take the stairs back down to the first floor to use the bathroom, but it was dark and she fell down the stairs.  (UMF 15 and Plaintiff’s response; UMF 22-23; Exh. 5 pp. 37, 39-40.) 

C.   Broutian has carried his initial burden on summary judgment 

Broutian argues that he did not control the premises where the accident took place and he did not have notice of a dangerous condition.  Broutian states he does not know which unit the accident took place in because Plaintiff has not identified the unit.  In the absence of this information, Broutian cites his deposition testimony describing his business practice of conducting an inspection of the doors, office, and bathroom when a tenant moves out to ensure the safety of the new tenants (and for other reasons).  (Plaintiff’s exh. 6 p. 121; see UMF 26.)  Broutian asserts that new tenants then assume the duty to inspect the unit for hazards unless Broutian learns about a dangerous condition in the unit.  (See UMF 27-28.)  According to Brutian, Plaintiff cannot establish that Brutian knew about any dangerous condition in the unit where Plaintiff was injured.  (See UMF 29.) 

Based on this argument and supporting evidence, the Court finds that Broutian has carried his initial burden on summary judgment, shifting the burden to Plaintiff. 

D.   Plaintiff has raised a triable issue of fact 

In Plaintiff's opposition, Plaintiff presents evidence that the accident took place in unit 6 of the premises (UMF 36) and that Broutian did not have a tenant in unit 6 at the time of Plaintiff’s fall (UMF 45).  As a result, Plaintiff argues, Broutian not only owned unit 6 but had “full possession and control of unit 6 where Plaintiff fell at the time of Plaintiff’s fall.”  (UMF 45.)  Broutian has not provided evidence refuting these assertions. 

If Broutian had possession and control of the premises, then Plaintiff is not required to show that Broutian had actual notice of the dangerous condition. (See Salinas, supra, 166 Cal.App.4th at p. 412.) Plaintiff has raised a triable issue concerning whether Broutian had constructive notice by presenting evidence that Broutian knew that tenants had carried out previous unapproved construction but took no action.  (UMF 50.) 

Plaintiff has raised triable issues of fact concerning control and constructive notice.  The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Harout Broutian’s motion for summary judgment. 

          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.