Judge: Margaret L. Oldendorf, Case: BC718464, Date: 2024-01-05 Tentative Ruling
Case Number: BC718464 Hearing Date: January 5, 2024 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
And consolidated actions )
and related cross-actions
)
I. INTRODUCTION
These
consolidated cases concern a structure fire that severely injured several
people and killed two. The premises, located at 3779 Cahuenga Boulevard in
Studio City, were being used as recording studios and residences. The fire took
place in the early morning hours of April 14, 2018. Michael Pollard, then 30
years old, and Devaughn Carter, then 28 years old, perished in the fire. This
action is brought by their heirs and successors in interest.
Multiple
lawsuits were filed in the wake of the fire. In one of these consolidated
cases, it is alleged that an individual named Efrem Zimbalist Demery purchased
a lighter and $2 dollars of gas, which he pumped into a Crystal Geiser water
bottle. It is alleged that Demery then went to the premises and intentionally
started the fire that resulted in the deaths and injuries. The complaints
allege premises liability and negligence against the lessee of the building and
recording studios, Farshad Rabbani and Time Zone Entertainment Properties LLC;
and the owner, Haig Bazonian.
Before
the Court is Defendants Farshad Rabbani and Time Zone Ent. Properties, LLC’s
(collectively Timezone’s) motion for summary judgment. The Timezone Defendants seek summary judgment,
arguing that there is no triable issue of material fact that: (1) Efrem
Zimbalist Demery committed a criminal act, (2) Demery' s criminal conduct
happened after Timezone’s conduct, and (3) the intentional, violent criminal
actions of Demery were unforeseeable as matter of law.
Also
before the Court is Defendant Haig M. Bazoian’s motion for summary judgment or,
in the alternative, summary adjudication, filed on behalf of himself and in his
role as trustee of the Bazoian Trust (collectively Bazoian). Bazoian seeks summary judgment, arguing that:
(1) Efrem Zimbalist Demery committed a criminal act, (2) Demery' s criminal
conduct happened after Bazoian’s conduct, and (3) the intentional violent
criminal actions of Demery were unforeseeable as matter of law.
For
the reasons that follow, both motions are denied.
II.
EVIDENTIARY OBJECTIONS
Plaintiff
Pink Selkin’s Evidentiary Objections to Declaration of Haig Bazonian (2):
The following objections are overruled: 1, 2
The following
objections are sustained: none.
Plaintiff Pink Selkin’s
Evidentiary Objections to Declaration of Farshad Rabbani (1):
The following objections are
overruled: 1
The following objections are sustained: none.
Plaintiffs
Pollard et al.’s Evidentiary
Objections to Declaration of Farshad Rabbani: (1)
The following objections are
overruled: 1
The following objections are sustained: none.
Plaintiffs Pollard et
al.’s Evidentiary Objections to Declaration of Haig Bazonian (2):
The following objections are
overruled: 1, 2
The following objections are sustained: none.
Defendants’ Evidentiary
Objections to Plaintiffs’ Opposing Evidence (68):
All objections are overruled,
except for: 2, 9, 63 (in part only, as
to Orr’s opinions), 68 (in part only, as to Orr’s opinions).
III.
REQUESTS FOR JUDICIAL NOTICE
Timezone’s
Request for Judicial Notice
Timezone
requests the Court take judicial notice of: (1) the April 4, 2019, preliminary
hearing transcript in The People of the State of California v. Efren
Zimbalist Demery, Case No.: LA088204, (2) the abstract of judgment against
Efrem Zimbalist Demery in that same case, and (3) the felony advisement of
rights and the felony information summary in that case. Inasmuch as these
documents are records of a California court pursuant to Evid. Code Section
452(d), the requests are granted. Accordingly, the Court takes judicial notice
of Exhibits 1, 2, 3 and 4.
Timezone
also requests judicial notice of the Complaints filed by Plaintiff Selkin in 20STCV27209,
the First Amended Complaint filed by Plaintiff Pollard et al. in the instant
case BC718464, the Complaint filed by Plaintiff Jackson et al. in 20STCV12594, and
the Complaints file by Pollard and Selkin in Case Nos. 19STCV12627 and
19STCV15125.
Although
it is not necessary for the Court to take judicial notice of papers already in
the court file, the requests are granted.
(See Evid. Code, § 452, subd. (d).) (Evid. Code § 453; Scott v. JP
Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754-755.)
Accordingly,
judicial notice is taken of Exhibits 5, 6, 7, 8 and 9.
Bazoian’s
Request for Judicial Notice
Bazoian
requests the Court take judicial notice of the felony complaint in The
People of the State of California v. Efren Zimbalist Demery, Case No.:
LA088204, and the abstract of judgment against Efrem Zimbalist Demery in that
same case. Inasmuch as these documents
are records of a California court pursuant to Evid. Code Section 452(d), the
requests are granted. Accordingly, the Court takes judicial notice of Exhibits A
and B.
Plaintiff
Selkin’s Request for Judicial Notice
Plaintiff
Pink Selkin also requests the Court take judicial notice of the April 4, 2019,
preliminary hearing transcript in The People of the State of California v.
Efren Zimbalist Demery, Case No.: LA088204. As noted above, the request is
granted. Accordingly, the Court takes judicial notice of Exhibit 1.
Plaintiffs
Pollard et al.’s Request for Judicial Notice
Plaintiffs
Pollard et al. also request that the Court take judicial notice of the April 4,
2019, preliminary hearing transcript in The People of the State of
California v. Efren Zimbalist Demery, Case No.: LA088204. As noted above, the
request is granted.
IV.
JOINDERS TO OPPOSTION
Plaintiffs
Braelin Oliver Jackson and Remington Orr have filed motions to join Plaintiff
Pink Selkin’s opposition to the summary judgment motions. (The Court notes that
although the joinder is filed by Jackson and Orr’s attorney, Manuel S. Boxler,
the notice of motion for both motions reference a “Defendant Nathaniel Teague”
as moving for joinder. (Joinders p. 1: 27).)
Per
CCP § 1005(b), notice of the joinder and motions must be served 16 court days
before the hearing, plus 2 calendar days for service by electronic means. The joinders
were served November 22, 2023, only 10 court days before the initial hearing on
December 7. However, inasmuch as the
hearing on the main motions was continued to today, the Court will allow the
joinders.
V.
LEGAL STANDARD
a. Summary Judgment Standard
Summary judgment is appropriately granted where it
is shown that an action has no merit or that there is no defense to the action.
(Code Civ. Proc. §437c(a).) A cause of action has no merit if one of the following
exists: (1) one or more necessary elements cannot be established; (2) a
defendant establishes an affirmative defense.
(CCP § 437c(o).)
A motion for summary judgment shall be
granted where all the papers submitted show that there is no triable issue of
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP § 437c(c).)
Summary adjudication may be granted
where it completely disposes of a cause of action, an affirmative defense, a
claim of damages, or an issue of duty. (CCP § 437c(f).)
A
defendant has met “his or her burden of showing that a cause of action has no
merit if the party has shown that one or more elements of the cause of action,
even if not separately pleaded, cannot be established, or that there is a
complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).)
“[T]he burden [then] shifts to the plaintiff . . . to show that a triable issue
of one or more material facts exists as to that cause of action or a defense
thereto.” (Id.) To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.)
Premises Liability
The
elements of a negligence claim are duty, breach of duty, causation, and
damages. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411.) Premises liability is a type of negligence claim, where
there is a departure from the ordinary care owed in the management of an
owner’s property. (Rowland v. Christian (1968) 69 Cal.2d 108,119.)
To
be the cause of a plaintiff’s harm, the defendant’s conduct must be the
actual and proximate cause of
plaintiff’s harm. A superseding cause is “an independent event [that]
intervenes in the chain of causation, producing harm of a kind and degree so
far beyond the risk the original [wrongdoer] should have foreseen that the law
deems it unfair to hold him responsible.” (People v. Sanchez (2001) 26
Cal.4th 834, 855.) A criminal act will be deemed a superseding cause “unless it
involves a particular and foreseeable hazard inflicted upon a member of a
foreseeable class.” (Kane v. Hartford Accident & Indemnity Co.
(1979) 8 Cal.Appp.3d 350, 360.)
“The existence and scope of duty are legal questions
for the court.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465,477 [Ann
M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.]) “Liability
for negligent conduct may only be imposed where there is a duty of care owed by
the defendant to the plaintiff. [Citation.]” (Ladd v. County of San Mateo
(1996) 12 Cal.4th 913, 918 [J'Aire Corp. v. Gregory (1979) 24 Cal.3d
799, 803.]) In determining if a duty of care exists,
several factors are examined: Foreseeability of harm, the degree of certainty
of injury, “the closeness of the connection between [defendants'] conduct and
the injury suffered, the moral blame attached to [defendants], the policy of
preventing future harm, the extent of the burden to the defendant[s] and
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.” (Nally v. Community Church (1988) 47
Cal.3d 278,293, quoting Rowland v. Christian (1968) 69 Cal.2d 108,113.)
The primary factors are
foreseeability and extent of burden. (Vasquez v. Residential Investments,
Inc. (2004) 22 118 Cal.App.4th 269, 280, fn. 5.) Foreseeability is rarely
proven “in the absence of prior similar incidents of violent crime on the
landowner’s premises.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, 679.)
As to the issue of burden,
courts have declined to impose a duty on a property owner when doing so would
impose a significant burden on the defendant or others similarly situated.
(See, e.g., Garcia v. Paramount Citrus Assn., Inc. (2008) 164
Cal.App.4th 1448, 1455-1456; Castaneda v. Disher (2007) 41 Cal.4th 1205,
1213.) Courts also consider the financial burden a duty would create. (Laico
v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 666.) Duty will only be
imposed on a property owner for a third party’s wrongful conduct “where such
conduct can reasonably be anticipated.” ( Ann M., supra at 676.)
VI. TIMEZONE’S MOTION FOR SUMMARY
JUDGMENT
The Timezone Defendants move for summary judgment on
the causes of action of negligence and premises liability asserted against them
in this consolidated action. The Court notes that the motions filed by Timezone
and Defendant Bazonian make essentially the same arguments. The Court also notes
that the oppositions filed by Plaintiff Selkin and Plaintiffs Pollard et al.
are identical; and for clarity, the Court refers to all Plaintiffs together.
i. Causation
Timezone
urges that it is not the cause of Plaintiffs’ harms, as Demery’s criminal act
of arson was a superseding cause. (Motion, p.18: 22-25.) Timezone asserts that
it was unaware of Demery or any prior arsons at the property (Rabbani Decl. ¶¶
2, 3). Timezone was also purportedly unaware
of any alleged fire safety violations. (Rabbani Decl. ¶¶ 4,5.)
In
opposition, Plaintiffs argue that there are triable
issues of material on the issue of causation. (Opposition to Timezone Memorandum
of Points and Authorities, p. 23: 19-21.)
Selkin urges that unless these facts are undisputed, the question of causation
must remain with the trier of fact. (Opposition to Bazonian Memorandum of
Points and Authorities, p. 23: 23-25, referencing Nola M. v. Univ. of So.
Calif. (1993) 16 Cal.App.4th 421, 442.) Plaintiffs identify the following
disputed issues of fact: whether Demery
would have gained access to the building if the Defendants had adequately secured
it; the impact of the soundproof rooms that may have prevented tenants from
hearing the commotion that preceded Demery’s arson; and whether Selkin’s and
other Plaintiffs’ injuries would have been so extensive if adequate fire safety
measures were in place. (Opposition to Bazonian Memorandum of Points and
Authorities, p. 24: 3-20, referencing especially Plaintiffs’ Additional
Material Facts 33, 35, 37, 39-46, 52.) Plaintiffs’ points are well taken.
ii.
Duty and foreseeability
Timezone
urges that Demery’s arson was not likely, and therefore unforeseeable. (Motion,
p. 14: 26-28, p. 18: 7-12.) In support, Timezone provides the declaration of
Shad Rabbani, the lessee of the property and one of the Timezone defendants.
Rabbani declares that he was not aware of Demery and did not meet him prior to
the August 14, 2018, arson. (UMF 16, Rabbani Decl. ¶ 2.) Additionally, Timezone
urges that plaintiffs cannot identify that any previous felonies had occurred at
the property, because there were none. (Motion, p. 16: 16-17.) Timezone cites
to Thai v. Stang for the proposition that, without evidence of some prior
knowledge, a business owner is not liable for a third-party criminal act that
occurs at his or her business. (Thai v. Stang (1989) 214 Cal.App.3d
1264, 1273.)
Rabbani
further declares that, to his knowledge, there had not been any similar
incidents of arson or violent crime prior to August 14, 2018. (UMF 17, Rabbani
Decl. ¶ 3.) Timezone also urges that the arson was unforeseeable because the
period of time from the Pollard/Carter/Demery disagreement at the club to the
fire was less than 90 minutes. (Motion, p.18: 14-16.)
Additionally,
Timezone asserts that the Complaints in the case admit that Timezone was
unaware of the fire hazards. (Motion, p.1: 13-21.) This is not an entirely correct
statement of the allegations in the pleadings.
Rather, it is alleged that Los Angeles Fire Department, Los Angeles
Police Department and Los Angeles Building Department failed to make reports
about hazardous conditions at the property. (Selkin v. City of Los Angeles
First Amended Complaint, ¶¶ 5,6; Pollard v. City of Los Angeles Complaint ¶¶
16,17.) The fact that a different defendant did not make reports does not necessarily
demonstrate a lack of knowledge of these alleged conditions by Timezone.
In
opposition, Plaintiffs urge that the arson was in fact foreseeable – or at
least that there is a disputed issue as to foreseeability. (Opposition to Timezone
Memorandum of Points and Authorities, p. 20: 1.) In support, Plaintiffs cite Isaacs
v. Huntington Memorial Hospital, for the proposition that when a harm can
be prevented by simple means, or there are strong policy reasons for preventing
the harm, “a lesser degree of foreseeability may be required.” (Isaacs v.
Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125.) Plaintiffs urge
that the means in the instant case were simple as the harms could have been
prevented by ‘first line of defense’ security measures at the subject property,
including working lockable doors and monitoring security cameras. (Opposition
to Timezone Memorandum of Points and Authorities, p. 21: 23-28.) In addition,
the “prior similar acts’ analysis is not exclusive or controlling. (Isaacs, supra, at 125-126.)
Plaintiffs
also cite several cases in support of their argument that when the burden of
preventing harm is relatively minimal, a lesser degree of foreseeability is
required. (Opposition to Timezone Memorandum of Points and Authorities, p. 22:
9-28, p. 23: 1-6, referencing Vasquez v. Residential Investments, Inc.
(2004) 118 Cal. App. 4th 269; Kwaitkowski v. Superior Trading Company
(1981) 123 Cal.App.3d 324, 333; Musgrove v. Ambrose Properties (1978) 87
Cal.App.3d 44; Gomez v. Ticor (1983) 145 Cal. App. 3d 622, 632-633.)
The Kwaitkowski
case involved the assault of a plaintiff in the common area of her
apartment building. The court in that
case concluded that the burden of fixing the lobby door lock was minimal and
the assault was slightly foreseeable, given previous criminal conduct in the
location, thus imposing a duty on the landlord. (Kwaitkowski v. Superior
Trading Company (1981) 123 Cal.App.3d 324, 333.) Here, there were apparently
security cameras at the property. However, according to Bazonian’s own
deposition testimony, the video captured by the cameras was not monitored.
(Opposition Compendium of Evidence Exh. 8, p. 326: 3-9.) Additionally, the door
locks, alarm system and entrances to the building were not used in a way so as to
ensure tenant’s safety. (Opposition Compendium of Evidence Exhs. 10, p. 463:
12-24 [deposition from a tenant at the property that the door locks were not
functional.]) Plaintiffs also provide the declaration of Quincey White, who
avers that the entry and exit door locks were faulty (White Decl. ¶ 8), that
people who did not belong in the building were often there, (White Decl. ¶ 5)
and that the keypad access to the entire building often did not work correctly.
(White Decl. ¶ 8.) Plaintiffs also offer the declaration of Remington Orr,
another tenant at the subject property. (Orr Declaration.) Orr declares that
the property “lacked essential fire safety features such as fire alarms [and]
fire extinguishers”, that “there were issues with the locking mechanism of the
backdoor” and despite bringing his concerns to Rabbani, these issues were not
fixed. (Orr Decl. ¶¶ 7,9, 10, 11.)
Plaintiffs
further urge that Timezone owed a non-delegable duty to maintain the premises
in a reasonably safe condition. (Opposition to Timezone Memorandum of Points
and Authorities, p. 16: 18-19.) In support, Plaintiffs cite Swanberg v.
O’Mectin for the proposition that even a landowner who does not know about a
dangerous condition still has a duty to maintain the premises in a reasonably
safe condition. (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330;
see also Ann M., supra at 674.) Further, “if, by the exercise of
reasonable care, he would have discovered the dangerous condition, he is
liable.” (Id.) The landlord-tenant relationship is a special
relationship creating an affirmative duty to protect another from the conduct
of third parties. (Delgado v. Trax Bar
& Grill (2005) 36
Cal.4th 224, 235.)
After
considering all of the parties’ supporting and opposing arguments and evidence,
the Court concludes that triable issues of material fact exist with regard to
whether element three of the superseding cause defense has been established. See especially Bazoian’s Facts nos. 17, 18,
37, 38, 57, 58, 77, and 78 (which Plaintiffs dispute); Rabbani’s Fact no 16
(which Plaintiffs dispute); Plaintiff’s Additional Facts as to Bazoian nos. 33,
35, 37, 38, 43, 44, 45, and 46; and Plaintiff’s Additional Facts as to Rabbani
nos. 35, 37, 38, 39, 40, 44, 45, and 46.
The
Court therefore DENIES the Timezone motion for summary judgment.
VII. BAZOIAN’S MOTION FOR SUMMARY
JUDGMENT/SUMMARY ADJUDICATION
Bazoian similarly moves for summary judgment or,
alternatively, summary adjudication, on the causes of action of negligence and premises liability asserted
against him in this consolidated action.
i. Causation
Bazonian also argues that Demery’s criminal act of arson was a
superseding cause of Plaintiffs’ harms. (Bazonian Motion, p. 16: 25-28.) Bazoian
urges that he was not aware of any violations of the building code or fire code
prior to the August 14, 2018, fire. In support, Bazoian
submits his declaration, in which he avers that he was not aware of any prior
alleged criminal activity at the property. (Bazoian Decl. ¶ 4.) Additionally,
Bazoian declared that he did not know who Demery was prior to the fire; and only
became aware of Demery after seeing his name in the news reports regarding the
fire. (Bazonian Decl. ¶ 5.)
As with the Timezone motion, Plaintiffs urge that there are
triable issues of disputed fact as to causation. (Opposition to Bazonian
Memorandum of Points and Authorities, p. 23: 19-21.) The Court’s analysis on
this issue set forth at pages 7 and 8 above are equally applicable to
Bazoian.
ii.
Duty and foreseeability
As
with the Timezone Defendants, Bazonian urges that Demery’s act of arson was
unforeseeable. (Bazonian Motion, p. 17: 5-8.) Bazonian cites Jefferson v.
Qwik Korner Market, Inc., in support of this argument. Bazoian argues that a property owner is only
liable for protecting a visitor from a third party’s wrongful conduct “only
where such conduct can be reasonably anticipated.” (Jefferson v. Qwik Korner
Market, Inc. (1994) 28 Cal.App. 4th 990, 993.) Bazonian also cites Thai
v. Stang, supra, for the proposition that Bazonian can only be liable for
the criminal acts of a third party at his business if Bazonian was on notice of
those criminal acts. In support, Bazoian submits his declaration, in which he avers
that he was not aware of any prior alleged criminal activity at the property
since 1982, when he purchased it. (Bazoian Decl. ¶ 4.) He was also not aware of
any fire code or building code violations. (Bazonian Decl. ¶ 3.) Additionally,
Bazoian declares that he did not know who Demery was prior to the fire.
(Bazonian Decl. ¶ 5.)
Secondly, as with the Timezone Defendants, Paintiffs
urge that Defendant Bazoian owed a non-delegable duty to maintain the premises
in a reasonably safe condition. (Opposition to Bazonian Memorandum of Points
and Authorities, p. 16: 18-19.) The Court’s analysis on this issue set forth at
page 10 above also applies to Bazoian.
After
considering all of the parties’ supporting and opposing arguments and evidence,
the Court concludes that triable issues of material fact exist with regard to
whether element three of the superseding cause defense has been established. See especially Bazoian’s Facts nos. 17, 18,
37, 38, 57, 58, 77, and 78 (which Plaintiffs dispute); Rabbani’s Fact no 16
(which Plaintiffs dispute); Plaintiff’s Additional Facts as to Bazoian nos. 33,
35, 37, 38, 43, 44, 45, and 46; and Plaintiff’s Additional Facts as to Rabbani
nos. 35, 37, 38, 39, 40, 44, 45, and 46.
The
Court therefore DENIES the Bazoian motion for summary judgment or,
alternatively, summary adjudication.
VII. CONCLUSION
AND ORDER
The Court DENIES defendant TIMEZONE’s motion for summary
judgment.
The
Court DENIES defendant Bazonian’s motion for summary judgment or,
alternatively, summary adjudication.
Plaintiffs
are ordered to give notice of this ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT