Judge: Lisa R. Jaskol, Case: 21STCV29338, Date: 2024-01-16 Tentative Ruling
Case Number: 21STCV29338 Hearing Date: January 16, 2024 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On August 9, 2021, Plaintiff Fournier Calixte (“Plaintiff”) filed this action against Defendants Daniel Shoykhet (“Defendant”) and Does 1-25 for negligence.
On October 28, 2021, Defendant filed a general denial and a cross-complaint against Cross-Defendants Sean Beam (“Beam”) and Roes 1-10 for indemnification, apportionment of fault, and declaratory relief. On January 20, 2022, the Court dismissed Beam without prejudice at Defendant’s request.
On March 1, 2023, Defendant filed a motion for summary judgment to be heard on November 9, 2023. The Court continued the hearing to January 16, 2024. On October 24, 2023, Plaintiff filed an opposition. On October 30, 2023, Defendant filed a reply.
Trial is currently scheduled for April 5, 2024.
PARTIES’ REQUESTS
Defendant requests that the Court grant summary judgment.
Plaintiff requests that the Court deny the motion.
PLAINTIFF'S OBJECTIONS TO DEFENDANT'S SEPARATE STATEMENT:
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.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
DISCUSSION
The complaint alleges the following:
On or about August 11, 2019, Defendant placed a saw horse in the walkway of his residence while having guests, including Plaintiff, over to stay the night. When Plaintiff went to use the restroom, Plaintiff’s left foot struck the sharp edge of the saw horse and immediately started bleeding uncontrollably.
Plaintiff was taken to the nearest emergency room, where he was treated and received stitches, staples, and adhesive wound closures. On September 10, 2019, Plaintiff had surgery on his left foot as a result of the incident. Plaintiff has continued to receive physical therapy and treatment for his injuries.
As a direct and proximate result of Defendant’s action, Plaintiff has suffered, and continues to suffer, from physical and mental injuries that affect his ability to fully live his life.
B. Undisputed facts
Defendant was a tenant at 2222 S. Figueroa Street, PH3, Los Angeles, CA 90007 (the residence). Beam was staying at the residence with Defendant’s permission on the date of the alleged incident.
Defendant was helping Beam with an installation project around the time of the incident in August of 2019 for a period of approximately three weeks. Defendant assisted with painting the facades of the installation and helping to physically install it. Defendant was not an employee and was not compensated for his work; instead, Defendant had a verbal agreement with Beam to assist with the installation project. Work on the installation project was being completed in a warehouse space in Huntington Park, California. Defendant used a sawhorse at the warehouse space to work on the installation project.
Beam introduced Defendant to Plaintiff. Plaintiff and Defendant met at the warehouse space.
Plaintiff spent the night of August 10, 2019 at Defendant’s home. Plaintiff consumed marijuana and alcohol within 24 hours before the alleged incident. Plaintiff woke up at some point, presumably in the morning, although he cannot remember the time. Plaintiff walked, barefoot, through the residence, intending to take a shower. Defendant was not at the residence.
Plaintiff struck his left foot on a sawhorse while walking through the residence to the bathroom. Plaintiff noticed that he was bleeding from striking his foot on the sawhorse. Plaintiff went to the emergency room.
C. Analysis
Defendant argues that he did not have actual or constructive notice that a sawhorse was in his residence.
“If [a] dangerous condition is brought about by third persons, ‘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.’ ” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1208 (Jones), quoting Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806.) “Actual knowledge is defined as ‘ “express information of a fact,” ’ while constructive knowledge is that ‘ “which is imputed by law.” ’ ” (Ibid., quoting In re Marriage of Cloney (2001) 91 Cal.App.4th 429, 436.)
“Typically, to charge an individual with constructive notice, he must have, ‘actual notice of facts or circumstances which are sufficient to put a prudent person on inquiry as to the existence of the fact with respect to which he is charged with constructive notice.’ ” (Jones, supra, 39 Cal.App.5th at p. 1209, quoting Nicholson v. Los Angeles (1936) 5 Cal.2d 361, 364.) “Therefore, a landowner cannot be charged with constructive notice without a showing of some overt feature surrounding the dangerous condition, which would notify the landowner of its existence.” (Ibid.)
Defendant has presented evidence that he has never owned or rented a sawhorse, he was not aware of the presence of a sawhorse at the residence, and he was not present at the residence when Plaintiff allegedly suffered his injury. (See Kothary Decl. ¶ 11, Exh. I; Shoykhet Depo. p. 52:14-15; p. 52:19-21; p. 53:6-24; p. 54:24-55:2; p. 61:13-20; p. 66:1.)
Defendant has carried his initial summary judgment burden, shifting the burden to Plaintiff.
Plaintiff has presented no evidence showing that Defendant knew or should have known that a sawhorse was present at Defendant’s residence. In response to Defendant’s separate statement of undisputed fact asserting that Defendant was not aware of the existence of the sawhorse at the residence, Plaintiff asserts: “Disputed. Defendant provided Form Interrogatory Responses stated that he “did not recall if there was a sawhorse in the apartment and therefore does not know if he removed the sawhorse form [sic] the premises.” (Response to UMF 31, emphasis added.) Plaintiff’s form interrogatory responses (attached as an exhibit to Plaintiff’s opposition) do not include any language stating that a sawhorse was present or that Defendant might have removed it.
Plaintiff has not carried his burden of raising a triable issue of fact regarding whether Defendant had actual or constructive notice of a dangerous condition on the premises. The Court grants the motion.
CONCLUSION
The Court GRANTS Defendant Daniel Shoykhet’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.