Judge: Lisa R. Jaskol, Case: 22STCV12946, Date: 2024-11-25 Tentative Ruling

Case Number: 22STCV12946    Hearing Date: November 25, 2024    Dept: 28

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

BACKGROUND 

A.   Prior proceedings 

On April 18, 2022, Plaintiff Ben Karp (“Plaintiff”) filed this action against Defendants Westlake Plaza Center East-II, LLC (“Westlake”) and Does 1-50 for general negligence and premises liability. 

On June 8, 2022, Westlake filed an answer. 

On June 17, 2022, Plaintiff amended the complaint to include Defendant All Points Lock and Security, Inc. (“All Points”) as Doe 1. On December 29, 2022, All Points filed an answer. 

On December 6, 2023, Plaintiff amended the complaint to include Defendant Cushman & Wakefield U.S., Inc. as Doe 2. 

On January 30, 2024, Defendant Cushman & Wakefield of California, Inc., erroneously sued as Cushman & Wakefield U.S. Inc. (“Cushman”), filed an answer. 

On March 27, 2024, the Court found that the settlement between Plaintiff and All Points was made in good faith based on the parties’ stipulation.  On May 31, 2024, the Court dismissed All Points with prejudice at Plaintiff’s request. 

Trial is currently set for May 14, 2025. 

B.   Motion for summary judgment or summary adjudication 

On July 31, 2024, Westlake and Cushman (“Defendants”) filed a motion for summary judgment or, in the alternative, summary adjudication.  The motion was set for hearing on November 19, 2024.  On October 31, 2024, Plaintiff filed an opposition.  On November 13, 2024, Defendants filed a reply.  The Court continued the hearing to November 25, 2024. 

PARTIES’ REQUESTS 

Defendants ask the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion. 

PLAINTIFF’S EVIDENTIARY OBJECTIONS 

The objections are not properly formatted and the Court has not considered them.  (See Cal. Rules of Court, rule 3.1354(b); Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8-9.) 

LEGAL STANDARD 

A.   Summary judgment and summary adjudication 

“‘[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, 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.   Premises liability and negligence 

“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, 1158.) 

“ ‘ “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; Padilla, supra, 160 Cal.App.4th at p. 747.) 

C.   Landlord’s duty of care 

“[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.) 

“To this general rule of nonliability, the law has developed a number of exceptions, such as where the landlord covenants or volunteers to repair a defective condition on the premises [citations], where the landlord has actual knowledge of defects which are unknown and not apparent to the tenant and he fails to disclose them to the tenant [citation], where there is a nuisance existing on the property at the time the lease is made or renewed [citation], when a safety law has been violated [citation], or where the injury occurs on a part of the premises over which the landlord retains control, such as common hallways, stairs, elevators or roof [citation].”  (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 511 (Uccello).)  “A common element in these exceptions is that either at or after the time possession is given to the tenant the landlord retains or acquires a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury. In these situations, the law imposes on the landlord a duty to use ordinary care to eliminate the condition with resulting liability for injuries caused by his failure so to act. [Citation.]”  (Ibid.) 

DISCUSSION 

A.   The complaint 

The complaint alleges the following: 

On March 15, 2022, Plaintiff walked into a building located at 3043 Townsgate Rd. Westlake, CA 91361 (“premises”), swiped his security card to unlock the door, and pulled the door handle to open the door.  The door handle “flung out of the door and violently struck Plaintiff in the face,” injuring Plaintiff. 

Defendants negligently owned, maintained, managed, and operated the premises. 

B.   Undisputed facts 

Westlake owned the premises.  Cushman was the premises’ property manager.  Pennymac, which employed Plaintiff, was a tenant at the premises. 

Before his accident, Plaintiff was not aware of any problems with the door at issue, which he used five times a week to reach the cafeteria. 

C.   Defendants have not carried their initial burden on summary judgment or summary adjudication 

1.    Westlake 

Defendants assert that Westlake is entitled to summary judgment or summary adjudication because it did not have actual knowledge of any defect in the door.  (See Salinas, supra, 166 Cal.App.4th at p. 412 [“ ‘ “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” ’ ”].) 

Defendants have presented evidence that Westlake was not aware of any defect in the door or its handle that may have caused or contributed to Plaintiff’s accident.  (See Declaration of Robert Searles ¶ 5.)  

In response, Plaintiff argues that he is not required to show that Westlake had actual knowledge of a defect in the door because Westlake never relinquished control over the premises to its tenant Pennymac.  Plaintiff points to the lease agreement between Westlake and Pennymac, which provides in part: 

“6.3 Landlord's Repair Obligations. Notwithstanding the provisions of Section 6.2 above to the contrary, Landlord shall, as part of the Operating Expenses, repair and maintain in a good condition (a) the Building's shell and other structural portions of the Building (including the roof and foundations), (b) the basic plumbing, heating, ventilating, air conditioning, sprinkler and electrical systems within the Building's core and (c) the Common Areas . . . .”  (Exh. A to Shy decl.) 

          Plaintiff asserts that Paragraph 2.2 of the lease defines “Common Areas” as “the common entrances, lobbies, restrooms on multi-tenant floors, elevators, stairways….”  (Opposition p. 4.)  According to Plaintiff, the door at issue was in a common area which Westlake was required to maintain. 

As Defendants note, Plaintiff has failed to include Paragraph 2.2 of the lease in his exhibits submitted in opposition to Defendants’ motion.  Nonetheless, the lease portion that Plaintiff has submitted states that Westlake shall “repair and maintain . . . the Building’s shell . . . [and] the Common Areas.”  (Exh. A.)  Defendants have presented no evidence showing that the door at issue was not located in the Building’s shell or a common area within the meaning of the lease. 

Citing the testimony of Cushman’s person most qualified, Defendants argue that Pennymac, not Westlake, was responsible for inspecting and maintaining the door.  Because this testimony is inconsistent with the lease language, it does not establish as a matter of law that Wakefield relinquished control over the door when it leased the premises to Pennymac. 

          Defendants also contend that Pennymac’s installation of a security system which required a security badge “prevented Defendants from inspecting or maintaining the operation of the door.”  (Reply p. 3.)  To support this assertion, Defendants cite the declaration of Westlake “Member” Robert Searles, who states that Westlake did not have access to Pennymac’s security system and therefore could not operate or inspect the door’s functioning before Plaintiff’s accident.  (Searles decl. ¶ 6.) 

Searles’s statement is inconsistent with the lease, which states in part: 

“Tenant shall have the right to install and operate a separate security system for the Premises and Building (including approved access panels and cameras in the Premises, Building and parking areas serving the Building) . . . Tenant shall provide Landlord with access codes, key fobs or other means of access to enter Tenant's Premises for purposes of providing any services to the Premises for which Landlord is expressly obligated to perform under the express terms of this Lease.”  (Exh. A to Shy decl.) 

          Therefore, Searles’s declaration does not establish as a matter of law that Wakefield could not inspect or maintain the door due to Pennymac’s security system.     

For these reasons, Defendants may not rely on the rule that a landlord which relinquishes control over its property to a tenant cannot be liable to an injured third party unless the landlord had actual notice of the defect which caused the injury.  Instead, to carry their initial burden on summary judgment or adjudication, Defendants must also present evidence that Plaintiff cannot prove Westlake had constructive notice of the defect. 

Defendants assert they lacked constructive notice of the dangerous condition because (1) a locksmith found no defect in the door six weeks before the accident, (2) Plaintiff was not aware of any defect before the accident, and (3) after the accident, the locksmith found a stripped screw in the door’s interior which was not visible to the naked eye.  (Reply p. 4.)  But Plaintiff has presented evidence that, under the lease, Westlake had a duty to repair and maintain portions of the premises, including the door, and did not do so.  (See Uccello, supra, 44 Cal.App.3d at p. 511.) 

The Court finds that Defendants have not carried their initial burden on summary judgment or adjudication of showing that they lacked constructive notice of the defect.  At a minimum, Plaintiff has raised a triable issue of fact concerning constructive notice. 

2.    Cushman 

As the premises property manager, Cushman was Westlake’s agent. (See exh. B to Shy decl., p. 97.)  The management agreement between Westlake and Cushman required Cushman to “take all steps reasonably appropriate to keep the [premises] in good condition and repair and . . . monitor all independent contractors responsible for the repair and maintenance of the [premises] . . . .”  (Exh. C to Shy decl.) 

Defendants argue that, “for the same reasons as [Westlake], Cushman did not have access to the door at issue because of Pennymac’s security system.”  (Motion p. 8.) 

Based on the Court’s discussion above concerning Westlake, the Court finds that Defendants have not carried their initial summary judgment or summary adjudication burden on Plaintiff’s claims against Cushman.  At a minimum, Plaintiff has raised a triable issue of fact concerning constructive notice. 

          The Court denies Defendants’ motion. 

CONCLUSION 

The Court DENIES the motion for summary judgment or, in the alternative, summary adjudication filed by Defendants Westlake Plaza Center East-II, LLC and Cushman & Wakefield of California, Inc. 

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.