Judge Mark A. Young, Case 19STCV43863 2023-02-23 Tentative Ruling

Judge: Mark A. Young, Case: 19STCV43863, Date: 2023-02-23 Tentative Ruling

Case Number: 19STCV43863 Hearing Date: February 23, 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.

Topa’s objections are SUSTAINED as to no. 9, and otherwise OVERRULED.

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.

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, along with Topa’s subrogation complaint, 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 included rent collection, serving rent-related legal notices, and bookkeeping services. (UMF 19.) The Management Agreement specifically excluded 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 establishes 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. Topa’s argument that the kitchen renovations occurred only because the mezzanine renovations had commenced are equally as attenuated. 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 finds in favor of MMLK with respect to the negligence-based causes of action – causes of action one through three in the FAC.

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.

Topa’s Subrogation claims

As stated, MMLK moves to adjudicate Topa’s first cause of action for negligence, second cause of action for liability, and third cause of action for violation of Health and Safety Code section 13007. As to Health & Safety Code section 13007, that provision essentially restates a duty to not allow a fire to spread from your property onto others’ property. It states in full:

Any person who personally or through another willfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another, whether privately or publicly owned, is liable to the owner of such property for any damages to the property caused by the fire.

As discussed above, MMLK’s liability is premised on their control of the Premises during the construction efforts which caused the fire. Topa’s subrogation complaint names the same Defendants as Wabi. (UMF 8.) The complaint alleges that on December 12, 2018, a fire originated inside the Subject Property, which traveled to Plaintiffs’ adjacent building at 1637 Abbot Kinney Boulevard and destroyed it. (UMF 9; Topa Compl., ¶ 10; see FAC ¶ 69.) Plaintiff alleges that the fire was caused by improper construction, improvements and/or equipment installation and other work in TTK that allowed a fire to develop from kitchen cooking equipment. (Topa Compl., ¶¶ 10-11, 19-20, 37.) MMLK exercised design and/or managerial control over the construction, improvements, and/or equipment installation, and other work in TTK; were involved in designing, directing, ordering, supervising, approving, contracting, and obtaining permits for the construction, improvements, and/or equipment installation, and other work in TTK. (Id. ¶ 12.) MMLK failed to obtain or failed to confirm that the General Contractors had obtained the required permits, approvals, and/or other clearances form state, county, and/or municipal entities and required necessary compliance with applicable codes, standards, and regulations. (Id. ¶ 17.)

As Topa’s subrogation claims rely on the same facts of liability, the above discussion generally applies to the Court’s analysis with respect to Topa. In sum, MMLK presents evidence showing that it did not control the subject Premises at the time of the fire, and did not have specific knowledge of any conditions that led to the fire.

In opposition, Plaintiff Topa – much like Wabi – fails to present evidence of a dispute of fact as to MMLK’s control or specific knowledge of a dangerous condition. Notably, at paragraph 6.4 of the Lease, MMLK has the right to enter the Subject Property at any time to conduct inspections of the Subject Property and its condition. This gives MMLK a right of control under certain circumstances. However, Topa fails to present evidence that MMLK did enter the Subject Property pursuant to paragraph 6.4 (such as in the case of an emergency or otherwise at reasonable times after reasonable notice for the purpose of inspecting the condition of the Premises). Moreover, Topa does not present evidence that MMLK had any information that would have justified such an inspection. In other words, MMLK neither had control over the Premises during the relevant period pursuant to paragraph 6.4, nor is there evidence that MMLK had a reason to believe that they needed to “verify compliance by the Lessee” with the Lease, or had reason to inspect the property at all. (See Garcia, supra, 242 Cal.App.4th at 604 [“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.”].)

Topa proffers as an example that MMLK knew or should have known at the time it acquired the Subject Property, that the upstairs mezzanine area was improperly used for dining without the necessary permits or certificate of occupancy. In 2012, the Los Angeles Department of Building and Safety had issued citations for code violations, and orders to comply regarding this non permitted use. MMLK members (such as Kate Feldman) were aware of the non-compliance issue. They note that the occupancy issue with the upstairs mezzanine area was never resolved. (See UMF 12.) Topa therefore relies on the same attenuated theory of liability as the Wabi Plaintiffs: building code violations (which were unrelated to the fire) created an independent duty upon MMLK to inspect the property pursuant to the Lease (at the time of acquisition of the Property years prior to the dangerous condition that led to the fire). Even liberally construed, this is not specific and substantial evidence that MMLK knew about the dangerous conditions which actually led to the fire and does not show that MMLK had control of the Premises while such dangerous conditions were present.

Topa also presents evidence that establishes MMLK’s general “knowledge and approval of the work being performed associated with the permits at the Subject Property prior to the December 2018 fire.” As discussed above, this is insufficient to impose liability on MMLK as a lessor. To the extent that MMLK “began taking active steps to ensure the Subject Property was in compliance with the applicable building and safety rules, such as hiring an architect to help it get the 2018 permits finalized and to make sure the Subject Property’s wall where the 2018 fire started was a code compliant fire rated wall,” that evidence of subsequent remedial measures is not admissible to demonstrate liability for negligence under Evidence Code section 1151.

Therefore, Plaintiff has failed to present a dispute of fact as to MMLK’s knowledge of the hazards, control of the premises during the construction, or an opportunity to remedy those dangerous conditions. Accordingly, MMLK’s motion for summary judgment is GRANTED.