Judge: Mark A. Young, Case: 19STCV43863, Date: 2023-01-24 Tentative Ruling
Case Number: 19STCV43863 Hearing Date: January 24, 2023 Dept: M
CASE NAME: Wabi Venice
LLC, et al., v. The Abbot Kinney Grill LLC, et al.
CASE NO.: 19STCV43863
MOTION: Motion
for Summary Judgment/Adjudication
HEARING DATE: 1/24/2023
Legal
Standard
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“A party may move for summary adjudication as
to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that
one or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary
adjudication as an alternative to a request for summary judgment, the request
must be clearly made in the notice of the motion. (Gonzales v. Superior
Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to” subdivision (t).
(CCP, § 437c(t).)
To
prevail, the evidence submitted must show there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP, § 437c(c).) The motion cannot succeed unless the
evidence leaves no room for conflicting inferences as to material facts; the
court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when a material fact is the witness’s state of
mind and “that fact is sought to be established solely by the [witness’s]
affirmation thereof.” (CCP, § 437c(e).)
Once
the moving party has met their burden, the burden shifts to the opposing party
“to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish
anything by affidavit unless and until the moving party has by affidavit stated
facts establishing every element... necessary to sustain a judgment in his
favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary
judgment motion. The function of the pleadings in a motion for summary judgment
is to delimit the scope of the issues and to frame the outer measure
of materiality in a summary judgment proceeding.” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations
and citations omitted.) “Accordingly, the burden of a defendant moving for
summary judgment only requires that he or she negate plaintiff's theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in the
pleadings.” (Ibid.)
EVIDENTIARY ISSUES
Plaintiffs filed written objections
to specific material facts (SSUMF) submitted by Defendant MMLK, LLC. Plaintiffs’ objections to the SSUMF are not
objections to evidence.
Analysis
Defendant MMLK LLC moves for
summary judgment/adjudication against two pleadings in this consolidated
action: 1) Wabi Venice LLC, TM Abbot Kinney LLC, Tricia Small, and Sam F.
Mashall’s (“Wabi Plaintiffs”) Fourth Amended Complaint; and 2) Topa Insurance
Company’s (“Topa”) subrogation Complaint. MMLK moves to adjudicate each of the causes of
action as follows:
As to the Wabi Plaintiffs:
i)
First Cause of Action for Negligence;
ii)
Second Cause of Action for Negligence-Premises
Liability;
iii)
Third Cause of Action for Private Nuisance;
iv)
Fourth Cause of Action for Trespass;
v)
Prayer for General Damages by the individual plaintiffs
Small and Marshall; and
vi)
Prayer for Punitive Damages.
As to the Topa complaint:
i)
First Cause of Action for Negligence;
ii)
Second Cause of Action for Premises Liability; and
iii)
Third Cause of Action for a Violation of Health and
Safety Code section 13007.
As to the Topa complaint, that motion shall be heard on
February 21, 2023, pursuant to the parties’ agreement and the Court’s
order.
Premises Liability - Control
MMLK argues that every cause of
action fails because they all require a threshold showing that MMLK possessed,
controlled, or managed the Subject Property, and MMLK relinquished all
possession, control, and management of the Subject Property to Abbot Kinney Grill
when they entered into the Lease Agreement as early as 2009.
The elements of negligence are
duty, breach of duty, causation, and damages. (N.N.V. v. American Assn. of
Blood Banks (1999) 75 Cal.App.4th 1358, 1402.) The elements of a cause of
action for premises liability are the same as those for negligence: duty,
breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220
Cal.App.4th 994, 998.)
“Those who own, possess, or control
property generally have a duty to exercise ordinary care in managing the
property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki
v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37; Brooks v.
Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Control
over the subject premises is the crucial element for determining whether
premises liability can be imposed. (Salinas v. Martin (2008) 166
Cal.App.4th404, 414.) Without control over the premises no duty to exercise
reasonable care to prevent injury on the property can be found. (Steinmetz
v. Stockton City Chamber of Commerce (1985) 169 Cal. App. 3d 1142; Lucas
v. Pollock (1992) 7 Cal.App.4th 668, 675.)
“Public policy precludes landlord
liability for a dangerous condition on the premises which came into existence
after possession has passed to a tenant. This is based on the principle that
the landlord has surrendered possession and control of the land to the tenant
and has no right even to enter without permission.” (Garcia v. Holt
(2015) 242 Cal.App.4th 600, 604, internal citations omitted.) “It would not be
reasonable to hold a lessor liable if the lessor did not have the power,
opportunity, and ability to eliminate the dangerous condition.” (Id.;
Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510 [no liability “even
though by the exercise of reasonable diligence the landlord might have
discovered the condition].) Of course, “a commercial landowner cannot totally
abrogate its landowner responsibilities merely by signing a lease.” (Mora v.
Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.) In particular,
“the landlord is obligated at the time the lease is executed” and renewed “to
take reasonable precautions to avoid unnecessary danger.” (Id.) In Mora, the Court of Appeal held that
if the property or equipment necessary for the functioning of the property
(e.g., a refrigeration system) was safe when transferred to the tenant, used in
the manner for which it was intended, and control of the property was released,
the landlord could not be held liable for accidents occurring after the
property was transferred. (Id.) Likewise, in Garcia, unbeknownst to
the owner, the tenant had stored homemade explosives on property maintained by
the owner's landscaper. The landscaper was injured when he walked over the explosives
and sued the owner for premises liability. The court held that although the owner
had the right to enter the property to make repairs, the owner lacked knowledge
of the dangerous condition and therefore had no duty to address it. (Garcia, 242 Cal. App. 4th at 604.)
Once the landlord has relinquished
possessory interest in the land by leasing the property, “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.” (Day v. Lupo Vine Street, L.P. (2018) 22Cal.App.5th 62, 69.)
Exceptions include where “the
landlord covenants or volunteers to repair a defective condition on the
premises, 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,…
when a safety law has been violated, or when the injury occurs on a part of the
premises over which the landlord retains control, such as common hallways,
stairs, elevators or roof.” (Uccelo, supra. 44 Cal.App.3d at 511; see Rosales
v. Stewart (1980) 113 Cal.App.3d 130, 135 [evidence that knowledge by the
landlord preceded a renewal of tenancy or that the rental agreement could
otherwise have been terminated prior to the injury]; see also Portillo v.
Aiassa (1994) 27 Cal.App.4th 1128, 1135-1136 [landlord liable for tenant's
guard dog whose dangerous propensities were discoverable by reasonable
inspection upon renewal of lease].)
Wabi Venice was the tenant of the
building at 1637 Abbot Kinney Boulevard that was the subject of the fire, TM
Abbot Kinney owned the restaurant business that operated out of Plaintiffs’
Property. (UMF 3-7.) MMLK is the owner and lessor of the Subject Property
located at 1633 Abbot Kinney Boulevard in Venice, California, which is adjacent
to and just west of 1637 Abbot Kinney Boulevard. (UMF 10-11.) Abbot Kinney
Grill LLC entered into a thirteen-year commercial lease with MMLK to operate a
restaurant, the Tasting Kitchen, out of the Subject Property. (UMF 10.)
The FAC alleges that in late
fall/early winter of 2018, Defendants closed the Tasting Kitchen at the Subject
Property to commence construction. The construction work included, but was not
limited to, removing and replacing a concrete slab in their commercial kitchen
and renovating the exterior wall along the property line adjacent to
Plaintiffs’ restaurant. (FAC ¶ 18.) The Subject Property’s wall assembly was
unsafe and not code-complaint, since The Tasting Kitchen/Abbot Kinney Grill
negligently installed the stainless-steel metal shelving and/or metal
backsplash directly above cooking equipment, which impeded heat and flammable
substances from being properly exhausted/vented. (FAC ¶ 39.)
MMLK had applied for construction
permits, but the permits were not finalized, and they did not obtain the
necessary certificate of occupancy prior to utilizing the construction
improvements. (FAC ¶ 23.) MMLK knew that further inspections and/or clearances
would be required, including to building verification, electrical verification,
HVAC verification, plumbing verification, and LAFD fire inspection. Despite
that the permits and the certificate of occupancy were still “pending” at the
time of the fire, AKG and/or MMLK made the decision to reopen the restaurant.
(FAC ¶ 25.) MMLK controlled or managed the Subject Property, including the
construction work and/or remediation efforts. (FAC ¶¶ 33-38.) On December 12, 2018, a fire originated inside
the Subject Property at 1633 Abbot Kinney Boulevard in Venice, California and
traveled to and destroyed Plaintiffs’ adjacent Property at 1637 Abbot Kinney
Boulevard. (See UMF 9.)
Based on the foregoing law and
allegations, any tort duty here depends on MMLK’s actual knowledge and control
of the Premises during the alleged construction, and its ability to remedy the
dangerous condition caused by the construction.
Critically, the lease provided that
the Abbot Kinney Grill would not use the Subject Property in a manner that is
unlawful, creates damage, waste, or a nuisance, or that disturbs occupants of
or causes damage to neighboring premises or properties; that it would keep the
Subject Property in good order, including the maintenance, restorations,
replacements, renewals, and repair of all equipment and facilities, such as
plumbing, HVAC, electrical, fire protection systems, fixtures, and walls. (UMF
13-14; Lease ¶¶ 6, 7.1.) MMLK disclaimed all such obligations. (UMF 15-16;
Lease ¶ 7.2 [“[I]t is intended by the Parties hereto that Lessor [MMLK] have no
obligation, in any manner whatsoever, to repair and maintain the Premises, or
the equipment therein, all of which obligations are intended to be that of the
Lessee [Abbot Kinney Grill].”].)
On February 1, 2012, MMLK entered
into a Management Agreement with JKW Properties, Inc. (“JKW”) concerning the
Subject Property. (UMF 18.) Pursuant to Section 2.1 of the Management
Agreement, JKW’s duties exclusively include rent collection, serving
rent-related legal notices, and bookkeeping services. (UMF 19.) The Management
Agreement specifically excludes from JKW’s scope of duties the handling of
maintenance problems, emergencies, tenant problems, property inspections,
modernization, rehabilitation and construction, and all other maintenance issues
which were to be handled by MMLK’s tenant, the Abbot Kinney Grill. (UMF 20.)
The Abbot Kinney Grill confirmed it
was in possession of, and controlled, the Subject Property at the time of the
subject fire. (UMF 22-25.) Critically, Abbot Kinney Grill was responsible for
all construction improvements undertaken at the Subject Property between
January 1, 2018, and December 12, 2018, including construction improvements
associated with all pending permits and Certificates of Occupancy at issue in
the subject action that relate to the 2018 renovations. (UMF 26.)
At the time the Lease Agreement was
executed, the construction project had not commenced. Naturally, the pled
dangerous condition could not exist at that time. Once the tenancy commenced,
Abbot Kinney Grill controlled the maintenance, repairs, and renovations that
the Subject Property needed. (UMF 40.) Those working on the 2018 kitchen
renovations at The Tasting Kitchen were hired by Ocean Spaulding, an agent of
Abbot Kinney Grill. (UMF 37.) MMLK was not present at the Subject Property
during the 2018 kitchen renovations. (UMF 38.) At most, MMLK was “consulted” and
“notified of” the construction generally. Once renovations commenced in late
2018, Abbot Kinney Grill’s own agents pulled their own permits, handled their
own inspections, and designed and implemented the kitchen renovations on their
own, all without any requested or received input from MMLK. Thus, MMLK
demonstrates that it did not have the necessary control over the Subject Property,
or the ability to cure any dangerous conditions caused by the 2018 construction
project. The burden therefore shifts to Plaintiffs to establish the element of
control.
Based upon the undisputed facts,
the Court finds that Plaintiffs fail to connect MMLK to the 2018 kitchen
renovations that were initiated, without MMLK’s knowledge, by its tenant and
tenant’s agents. Plaintiffs do not point to any evidence which attempts to
establish MMLK’s knowledge of the specific dangerous condition caused by the
kitchen renovations. Plaintiffs also fail to show that MMLK could, or did,
exercise control of the construction. Plaintiffs do not point to any evidence
substantiating their allegation that MMLK directed the restaurant to be opened
despite the known danger posed by the neglgigent construction of the metal
shelving units, ventilation, etc.
Plaintiffs point to the permit
applications for the construction work performed at the Subject Property in
2018 prior to the fire, which identify MMLK. (AOE, Exs. 12-13, 18-19.) This evidence does establish that MMLK, generally,
knew of the work being performed. The moving evidence similarly established
this general knowledge. However, even liberally construed, this evidence does
not suggest that MMLK would know about the kitchen renovations specifically or
their dangerous construction.
Plaintiffs’ discussion regarding any
purported dangerous conditions disconnected from the alleged construction
project is immaterial. Plaintiff does not allege or demonstrate any connect
between such conduct (e.g., utilizing the upstairs mezzanine area for dining
without the necessary permits or certificate of occupancy) and the subject fire.
(AOE, Exs. 3, 10-11.) Even if considered a safety issue that existed prior to
the fire, Plaintiffs suggest no causation between such issues and the fire. At
best, Plaintiffs establish that MMLK knew that their property was being used as
a restaurant with commercial cooking equipment, and that construction was going
on generally. This is not specific and substantial evidence that the landlord,
MMLK, retained control of the renovations.
Plaintiffs also argue that MMLK “turned
a blind eye” to the Subject Property and they improperly entrusted Mr. Horowitz
(of the Abbot Kinney Grill) with the Property, despite knowing that he would do
things “contrary” to MMLK’s interest. The testimony provided, however, does not
suggest that MMLK believed that Mr. Horowitz was not trustworthy to run the
restaurant. The evidence does not suggest that MMLK knew that Mr. Horowitz
would ignore safety protocols or negligently construct the kitchen. Instead, Ms.
Feldman only stated that Mr. Horowitz would not “always” listen to the prior
owner’s point of view, and that Ms. Feldman was uncertain if he had the prior
owner’s best interest at heart. Essentially, Mr. Horowitz and the prior owner
had different visions for the restaurant; “she wanted it to be more casual
and simple, and he kind of went with a more -- like a fancier architect…” (Feldman
Depo. at 87:3—89:7; 109:1-21.) The prior owner would only be “frustrated with”
Mr. Horowitz’s choices, and not keeping her in the loop. But Ms. Feldman
acknowledges: “He was a successful restauranteur. I don’t think – my aunt
didn’t have the best relationship with him. I don't know if that meant still
that, like, he wasn't good at what he did, which was run a restaurant.” This is
not specific evidence that MMLK knew that Mr. Horowitz was unfit or could not
be entrusted with renovation projects. Certainly, this is not evidence that MMLK
directed or controlled the construction, or that the restaurant open prior to
the construction being complete. If anything, this shows that Mr. Horowitz
exercised control.
Plaintiffs also note that MMLK’s
agent, JKW, inspected the premises prior to the 2018 fire. At best, this only demonstrates
that JKW supplied MMLK with notice and actual knowledge that improvements to
the property were being made in 2018. Mr. Wood testified only to JKW’s notice
to MMLK regarding the Conditional Use Permit relating to the occupancy and use
of the upstairs mezzanine area which involved no physical construction work
whatsoever. (Ex. 4 to Plaintiffs’ Appendix of Evidence, at pp. 109:1 thru
117:16; 119:3 thru 120:14.) Mr. Wood testified he had no knowledge of the 2018
kitchen renovations at all. (Wood Depo., at 180-181.) Plaintiffs thus provide
no specific evidence that JKW knew itself, or informed MMLK, of the dangerous
condition caused by the construction.
Upon examination of the entire
record, Plaintiffs fail to cite any evidence tending to show MMLK’s actual
knowledge of the pled dangerous condition at any point prior to the fire, or
MMLK’s ability to cure that condition. Therefore, the Court would find in favor
of MMLK with respect to the negligence-based causes of action – causes of action
one through three.
Private Nuisance & Trespass
To establish an action for private
nuisance, (1) “the plaintiff must prove an interference with his use and
enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in
the use and enjoyment of the land must be substantial, that is, that it causes
the plaintiff to suffer substantial actual damage”; (3) “the interference with
the protected interest must not only be substantial, but it must also be
unreasonable, i.e., it must be of such a nature, duration, or amount as to
constitute unreasonable interference with the use and enjoyment of the land.” (Mendez
v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248,
262-263, citations, italics, brackets, and quotation marks omitted.)
To set forth a cause of action for
trespass, a plaintiff must show (1) lawful possession or right to possession of
real property; (2) the defendant’s wrongful, intentional, reckless, or
negligent act of trespass on the property; (3) plaintiff did not give
permission for the entry or scope of permission was exceeded; and (4) damage
caused by the trespass. (Ralphs Grocery Co. v. Victory Consultants, Inc.
(2017) 17 Cal.App.5th 245, 262.)
While these rest on different legal
theories, the two causes of action essentially restate claims on the same
theory as the negligence claims. A nuisance claim is a negligence claim if the
negligence and nuisance causes of action rely on the same facts about lack of
due care. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 542; Van
Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372 [When a plaintiff seeks to
recover in damages under the same state of facts but under different theories
of recovery, that is, private nuisance and negligence, there is but one cause
of action].)
As to nuisance, Plaintiffs alleges
that MMLK’s actions “resulted in a fire hazard and a foreseeable obstruction to
the free use of Plaintiffs’ property, invaded the right of Plaintiffs to use
the property, and interfered with Plaintiffs’ enjoyment of the property,
causing Plaintiffs unreasonable harm and substantial actual damages
constituting a nuisance…” (FAC ¶ 142.) This includes “MMLK’s control and/or
management of the Subject Property with knowledge that safety hazards existed,
but failing to fix, address, or otherwise remedy the safety hazards prior to
reopening and operating… s utilizing the construction improvements without
proper inspections, clearances, approvals, finalized permits, and a certificate
of occupancy from the necessary Los Angeles Building and Safety
agencies/departments… awareness that operating the Subject Property, including
the commercial kitchen, while in its dangerous condition and prior to obtaining
the proper and requisite inspections, permits, and clearances, had probable
dangerous consequences, including a fire… prematurely re-opening the Subject
Property to the public and operating the restaurant’s commercial kitchen, where
the dangerous condition was allowed to remain… failure to do anything to
mitigate risk of destruction or injury; rather, they did the opposite in
pre-maturely re-opening the Subject Property…” (FAC ¶ 147.)
As to trespass, MMLK’s
conduct/negligence “caused the fire to ignite at the Subject Property and/or
spread out of control, and thereby caused and/or contributed to the harm and
damage to Plaintiffs resulting in a trespass upon Plaintiffs’ property
interests.” (FAC ¶ 155.)
As discussed, there is no dispute
of material fact shown by the evidence that MMLK had control of, or the ability
to cure, the pled hazardous condition which caused the fire. As such, the
essential element of duty and causation are lacking.
Accordingly, MMLK’s motion for
summary judgment is GRANTED as to the Wabi Plaintiffs’ FAC.