Judge: Lisa R. Jaskol, Case: 21STCV40593, Date: 2023-10-02 Tentative Ruling
Case Number: 21STCV40593 Hearing Date: October 2, 2023 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On November 4, 2021, Plaintiff Yadira Rojas (“Plaintiff”) filed this action against Defendants Mashcole Property Management, Inc. (“Management”), Mellick Trust/Mellick Mark C Tr (“Trust”) and Does 1-50 for general negligence and premises liability.
On December 14, 2021, Management and Trust ("Defendants") filed an answer.
On March 1, 2023, Defendants filed a motion for summary judgment to be heard on October 2, 2023. On September 15, 2023, Plaintiff filed an opposition.
Trial is scheduled for March 18, 2024.
PARTIES’ REQUESTS
Defendants request that the Court grant summary judgment.
Plaintiff requests that the Court deny the motion.
PLAINTIFF’S EVIDENTIARY OBJECTIONS
Sustained: 4, 11
Overruled: 1, 2, 3, 5, 6, 7, 8, 9, 10, 12
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).) 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.)
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.)
“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... 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 . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.)
“Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier “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....” ’ ” (Ortega v. Kmart (2001) 26 Cal.4th 1200, 1206 (Ortega), quoting Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)
“The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’ [Citation.] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances. [Citation.] The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it. [Citation.].” (Ortega, supra, 26 Cal.4th at pp. 1206-1207, citations omitted.)
“[A] plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and . . . ‘evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.’ ” (Ortega, supra, 26 Cal.4th at p. 1210, quoting Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447.)
DISCUSSION
A. Plaintiff’s complaint
Plaintiff alleges that, on or about September 20, 2021, Management and Trust negligently, recklessly or unlawfully, owned, managed, inspected, maintained, repaired, operated, or controlled its property so as to cause Plaintiff to sustain serious personal injury to her left ankle by the gate in the premises, thereby proximately causing injuries to Plaintiff Yadira Rojas' left ankle.
B. Defendants’ motion
1. Defendants’ undisputed facts
On or about June 28, 1983, the Trust purchased property located at 6521 Shirley Avenue, Reseda, CA 91335 as an investment property. The property contains an apartment complex. Mark C. Mellick serves as the Trust’s sole trustee (“Trustee”). (UMF 1.)
Management has managed the property for the Trust for more than three years. Before that, ITM managed the property. (UMF 2.)
Estella Santibanez (“Santibanez”) has served as the on-site property manager for the apartment complex on the property for at least 15 years, first with ITM and then with Management. She has lived on the property for approximately 20 years. (UMF 3.)
Prior to September 20, 2021, no one had ever presented a claim of injury or damage from any entrance gate to the property or reported any injury or damage due to the swinging of an entrance gate to the property to the Trust, Trustee, Management, or Santibanez. Plaintiff is the first individual to present a claim of injury or damage against the Trust and/or the property management company retained to oversee the property due to the swinging of an entrance gate to the property. (UMF 4-5.)
While the property has been a Trust asset, an on-site property manager employed by a property management company has regularly inspected the property for safety. (UMF 6.)
Plaintiff is the first individual to present a claim of injury or damage against the Trust and/or the property management company retained to oversee the property on the Trust’s behalf due to the swinging of an entrance gate to the property. (UMF 7.)
At no time prior to September 20, 2021 were the Trust, Trustee, Management, and/or Santibanez ever informed, notified, aware, and/or made aware that any entrance gate to the property was swinging too fast and constituted a dangerous condition on the property. (UMF 8.)
The Trust, Trustee, Management, and Santibanez have never altered, modified or repaired the entry gate on the property to change the speed of its swing since the Trust acquired the property on or about June 28, 1983. (UMF 9.)
2. Defendants have carried their initial summary judgment burden
Based on Defendants’ undisputed facts, Defendants have carried their initial burden on summary judgment of proving they did not have actual or constructive knowledge that an entry gate to the property constituted a defective condition of the property. The burden shifts to Plaintiff.
C. Plaintiff’s opposition
1. Plaintiff’s undisputed facts
Plaintiff was injured when the front gate at her apartment complex closed too quickly, hitting the back of her foot. (PUMF 1.) The gate has not changed while Plaintiff has lived in the building. (PUMF 2.) The gate has been functioning in the same manner for at least 10 years. (PUMF 29.) There has been no maintenance to the gate within the last 15 years. (PUMF 30.) Plaintiff’s expert has opined that the gate is unsafe because it closes too quickly. (PUMF 33-35.)
According to Management’s person most knowledgeable for property management policy regarding safety procedures, employee training, accident prevention, injury prevention and risk management operations at the property, part of the property manager’s duties is to inspect the property. (PUMF 6-7.)
Santibanez conducts her inspection of the property by walking around and not looking for anything in particular. (PUMF 9-10.) Before Plaintiff’s accident, Santibanez knew the gate’s latch was not working properly. (PUMF 24) Before and after Plaintiff’s accident, Santibanez reported to management that the latch was not working and was told not to repair anything to the gate. (PUMF 25.)
Management’s Vice President of Operations expects the property managers to walk the property every day and generally look around to make sure everything is in place, clean and in working order. (PUMF 11-12.)
Management’s Regional Property Supervisor goes to the properties within the portfolio at least once a month. (PUMF 15.) His walkthrough of the property includes an inspection of the common area on the property, including the gate. (PUMF 18.) His inspection of the gate consisted of checking its functionality, i.e. if the gate opened and closed. (PUMF 19.)
Other than people walking through the gate to enter and exit the property, the gate has never been officially tested or inspected. (PUMF 22.) The inspection and maintenance procedures only checked if the gate operated or not. The gate was never inspected for adequate closing speed. (PUMF 37.) Defendants’ inspection and maintenance procedures are inadequate and below the standard of care. (PUMF 36.)
If Defendants’ employees had been trained to check for the gate’s closing speed, the issues with the gate would have been discovered and the Plaintiff’s accident could have been prevented or greatly mitigated. (PUMF 39.) The cost to remediate the hazard is minimal. (PUMF 40.)
2. Plaintiff has raised a triable issue of fact
Based on Plaintiff’s evidence that Defendants did not adequately inspect the gate which allegedly injured Plaintiff, Plaintiff has raised a triable issue of fact regarding constructive notice of the dangerous condition. The Court therefore denies the motion.
CONCLUSION
The Court DENIES the motion for summary judgment filed by Defendants Mashcole Property Management, Inc. and Mellick Trust/Mellick Mark C Tr.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.