Judge: Michael E. Whitaker, Case: 19SMCV01169, Date: 2024-05-22 Tentative Ruling
Case Number: 19SMCV01169 Hearing Date: May 22, 2024 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
May
22, 2024 |
|
CASE NUMBER |
19SMCV01169 |
|
MOTION |
Motion
for Summary Judgment/Summary Adjudication |
|
Defendant Baypost Builders Inc. |
|
|
OPPOSING PARTIES |
Plaintiffs
Anthony Aldave and Teresa Aldave |
MOVING PAPERS:
REPLY PAPERS:
BACKGROUND
The operative First Amended Complaint (“FAC”) of Plaintiffs Anthony
Aldave and Teresa Aldave (“Plaintiffs”) alleges eight causes of action for (1)
Removal of Lateral and Subadjacent Support; (2) Negligence Per Se; (3)
Negligence; (4) Negligence; (5) Private Nuisance and Request for Temporary
Shoring; (6) Public Nuisance and Request for Temporary Shoring; (7) Intentional
Trespass and Punitive Damages; and (8) Breach of Contract.
Plaintiffs allege construction work done on their uphill adjacent
neighbor’s property removed lateral and subadjacent support, causing damage to
Plaintiffs’ property. Plaintiffs alleged
that Defendant 1400 Linda Flora Associates owns the neighboring property;
Defendant Bay Post Builders, Inc. is the general contractor; Defendant
Faradj-Ollah Harouni is the architect; Defendant Leonard Irvin Liston is the
civil engineer; and Defendant Jacob William Holt is the engineering
geologist.
As to Moving Defendant Bay Post Builders, Inc. (“Moving Defendant” or
“Baypost”), Plaintiff has alleged only the second, third, fifth, sixth, and
seventh causes of action.
Baypost moves for summary judgment on the following issues:
1) Defendant Baypost did not have any legal duty
owed to Plaintiffs related to the professional services Baypost performed per
agreement with the prior owner of the separate, upslope property located at
1400 Linda Flora Drive:
a. Baypost did not have any form of agreement
with and was not paid by Plaintiffs, or any party to this action other than the
prior owner of the separate, upslope property;
b. Baypost was retained only by the prior owner
of the separate, upslope property and performed no services of any kind under a
separate agreement or understanding with Plaintiffs;
c. Baypost was not the general contractor for any
alleged work performed on Plaintiffs' property;
d. Baypost did not perform any excavation,
construction, or other grading, and did not design any aspect of the work,
allegedly performed on Plaintiffs' property;
e. Baypost did not have any responsibility for
the means and methods of any of the alleged work performed on Plaintiffs'
property;
f. Baypost was not the owner or occupier of, and
did not have control over, the real property involved in this action and cannot
bear any liability for the conditions on such property;
g. The work that was performed exclusively on the
upslope property located at 1400 Linda Flora Drive and managed by Baypost has
performed as designed by independent engineers and approved by the City of Los
Angeles Department of Building and Safety;
h. Plaintiffs cannot demonstrate any errors
and/or omissions attributable to Baypost and cannot establish that any alleged
errors and/or omissions on the part of Baypost have resulted in any
demonstrable damages; therefore, Plaintiffs cannot assert a tort claim against
Baypost;
2) Plaintiffs' Seventh Cause of Action for
Intentional Trespass is barred by the applicable statute of limitations; and,
3) Baypost did not intentionally trespass on
Plaintiffs' property as Baypost believed the work had been authorized as
necessary and was not aware it was performed on Plaintiffs' property and the
condition of Plaintiffs' property was improved by the work performed by others.
In the alternative, Moving Defendant moves for summary adjudication of
the following issues:
1. Baypost did not owe a duty of care to
Plaintiffs and prevails on the Second Cause of Action for Negligence per se:
a. Baypost did not have any agreement with
Plaintiffs and only provided professional services directly for the owner of
the separate, upslope property located at 1400 Linda Flora Drive;
b. Baypost did not perform any excavation,
construction, or other grading on Plaintiffs' property at any time and was not
involved in the repairs of the erosional scar on Plaintiffs' property;
2. As set forth above, Baypost did not owe a duty
of care to Plaintiffs and Baypost prevails on the Third Cause of Action for
Negligence;
3. As set forth above, Baypost did not owe a duty
of care to Plaintiffs and Baypost prevails on the Fifth Cause of Action for
Private Nuisance and Request for Temporary Shoring;
4. As set forth above, Baypost did not owe a duty
of care to Plaintiffs and Baypost prevails on the Sixth Cause of Action for
Public Nuisance and Request for Temporary Shoring;
5. The Seventh Cause of Action for Intentional
Trespass is barred by the applicable statute of limitations; and,
6. No intentional trespass occurred as Baypost
did not grub/denude, or excavate/grade on, Plaintiffs' property as alleged in
the Seventh Cause of Action for Trespass at Paragraphs 119 - 126 of the First
Amended Complaint and believed all subsequent landscaping work had been
authorized as needed and Baypost was not aware the work was performed on
Plaintiffs' property.
Plaintiffs
oppose the motion and Baypost replies.
EVIDENTIARY
OBJECTIONS
The Court rules as follows with
respect to Plaintiffs’ evidentiary objections:
Declaration
of Ben Hamid Bayanfar
1.
Overruled
2.
Sustained
3.
Overruled
4.
Sustained
5.
Sustained
6.
Sustained
7.
Sustained
8.
Sustained as to the Google Earth photograph references,
Overruled as to the grubbed/denuded references.
9.
Sustained as to the Google Earth photograph references,
Overruled as to the roadway grading references.
10. Sustained
11. Sustained
12. Sustained
13. Sustained
14. Sustained
15. Sustained
16. Sustained
17. Sustained
18. Sustained
19. Sustained
20. Sustained
21. Sustained
22. Sustained
23. Sustained
24. Sustained
25. Sustained
26. Sustained
27. Sustained
28. Sustained
29. Sustained
30. Sustained
31. Sustained
32. Sustained
33. Sustained
34. Sustained
35. Sustained
36. Overruled
37. Overruled
38. Overruled
39. Sustained
40. Sustained
41. Sustained
42. Sustained
Exhibit
D: Sustained
Exhibit
E: Sustained
Exhibit
F: Sustained
Exhibit
G: Sustained
Exhibit
H: Sustained
Exhibit
J: Sustained
Exhibit
K: Sustained
Exhibit
L: Sustained
Exhibit
M: Sustained
Exhibit
N: Sustained
The Court rules as follows with respect to the Moving Defendant’s
objections to Plaintiffs’ evidence:
REQUEST FOR JUDICIAL NOTICE
Moving Defendant requests the Court to take judicial notice of (1)
Plaintiffs’ First Amended Complaint in this matter; and (2) Baypost’s answer to
the First Amended Complaint.
Judicial notice may be taken
of records of any court in this state.
(Evid. Code, § 452, subd. (d)(1).)
Therefore, the Court may take judicial notice of the First Amended
Complaint and Baypost’s Answer thereto (Ibid.) However, “while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial notice of allegations
in affidavits, declarations and probation reports in court records because such
matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green,
Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)
Therefore, the Court takes
judicial notice of the existence and legal effect of the First Amended
Complaint and Baypost’s Answer, but not the truth of the allegations contained
therein.
LEGAL STANDARDS – MOTION FOR SUMMARY
JUDGMENT/ADJUDICATION
“[T]he 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[.]
There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.”
¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(hereafter 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.” ¿(Ibid.; Smith v. Wells Fargo Bank,
N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar
apply to summary adjudication motions].)
Further, “the trial court
may not weigh the evidence in the manner of a factfinder to determine whose
version is more likely true. Nor may the
trial court grant summary judgment based on the court's evaluation of
credibility.” (Aguilar, supra, 25
Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department
of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for
summary judgment or summary adjudication may not weigh the evidence but must
instead view it in the light most favorable to the opposing party and draw all
reasonable inferences in favor of that party”].)
A party may move for
summary adjudication as to one or more causes of action, affirmative defenses,
claims for damages, or issues of duty if that party contends that there is no
merit to the cause of action, defense, or claim for damages, or if the party
contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be
granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or
more elements of the cause of action cannot be separately established, even if
that element is separately pleaded, or (2) a defendant establishes an
affirmative defense to that cause of action.
(See Code Civ. Proc., §
437c, subd. (n); Union Bank v. Superior
Court (1995) 31 Cal.App.4th 573, 583.)
Once the defendant has shown that a cause of action has no merit, the
burden shifts to the plaintiff to show that a triable issue of material fact
exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p.
583.) Additionally, in line with Aguilar,
“[o]n a motion for summary adjudication, the trial court has no discretion to
exercise. If a triable issue of material fact exists as to the challenged
causes of action, the motion must be denied. If there is no triable issue of
fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp.
v. Superior Court (2003) 114 Cal.App.4th 309, 320.)
DISCUSSION
1. MSJ ISSUE 1: DUTY
Moving Defendant first
contends that the Court should grant summary judgment as to the causes of
action for negligence, negligence per se, private nuisance, and public
nuisance, on the grounds that Moving Defendant owed Plaintiffs no duty of care.
The elements of a cause of
action for private nuisance are (1) an interference with plaintiff’s use and
enjoyment of plaintiff’s property; (2) the invasion of plaintiff’s interest
must be substantial, i.e., it caused plaintiff to suffer substantial actual
damage; and (3) the interference must also be unreasonable, i.e., of such a
nature, duration, or amount as to constitute an unreasonable interference with
the use and enjoyment of land. (Today's
IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022)
83 Cal.App.5th 1137, 1176.)
Similarly, the elements of a
cause of action for public nuisance are (1) a proscribed act; (2) interference
with the comfortable enjoyment of life or property; and (3) whether the act
affects a sufficient number of persons.
(People v. McDonald (2006) 137 Cal.App.4th 521, 535.)
Because duty is not an element
of the causes of action for private nuisance or public nuisance, resolution of
whether Baypost owed Plaintiffs a duty of care will not dispose of these causes
of action. Therefore, the Court denies
Baypost’s motion for summary judgment.
For the same reasons, the
Court denies summary adjudication as to Issues 3 and 4.
2. SUMMARY ADJUDICATION ISSUE 1: NEGLIGENCE
PER SE
“Negligence per se is an
evidentiary doctrine, rather than an independent cause of action. It can be
applied generally to establish a breach of due care under any
negligence-related cause of action.” (Jones
v. Awad (2019) 39 Cal.App.5th 1200, 1210 [cleaned up]; see also
Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285–1286
[“negligence per se is not to state an independent cause of action. The doctrine does not provide a private right
of action for violation of a statute”].)
“Under the doctrine of
negligence per se, compliance with the standard of conduct established by the
relevant statute, ordinance, or regulation is adopted as the duty of care. This creates a rebuttable presumption of
negligence where the statute, ordinance, or regulation is violated.” (Jones v. Awad, supra, 39 Cal.App.5th
at p. 1210.) Further, under the doctrine,
negligence is presumed if (1) defendant violated a statute, ordinance, or
regulation; (2) the violation proximately caused plaintiff’s injury; (3) the
injury resulted from an occurrence the nature of which the statute, ordinance,
or regulation was designed to prevent; and (4) the injured plaintiff was of the
class of persons the statute, ordinance, or regulation was designed to
protect. (Ibid.) Thus, under negligence per se, there is a
general duty of care dictated by statute, ordinance, or regulation to those the
statute, ordinance, or regulation was designed to protect.
Plaintiffs allege Baypost
violated Civil Code section 832; California Building Code (2016), Title 24,
Chapter 1, Division 2, Part 2, Section 114.1, entitled “Unlawful Acts”;
California Building Code section 3304.1, entitled “Excavation and Fill”; and
California Building Code section 3307, entitled “Protection of Adjourning
Property.” (FAC ¶ 42.)
Section 832 requires the land owner
to provide notice to neighboring land owners of excavation work that may
endanger a neighboring land owner’s walls or foundation to an adjoining
building or structure. Thus, Section 832
cannot form the basis of negligence per se against Baypoint, who is not the
owner of the neighboring property.
Building Standards Code
section 114.1 provides, “It shall be unlawful for any person, firm or corporation
to erect, construct, alter, extend, repair, move, remove, demolish or occupy
any building, structure or equipment regulated by this code, or cause same to
be done, in conflict with or in violation of any of the provisions of this
code.”
Building Standards Code
section 3304.1 provides, “Excavation and fill for buildings and structures
shall be constructed or protected so as not to endanger life or property.”
Building Standards Code
section 3307 provides, “Adjoining public and private property shall be
protected from damage during construction, remodeling and demolition work. Protection shall be provided for footings,
foundations, party walls, chimneys, skylights and roofs. Provisions shall be made to control water
runoff and erosion during construction or demolition activities. The person making or causing an excavation to
be made shall provide written notice to the owners of adjoining buildings
advising them that the excavation is to be made and that the adjoining
buildings should be protected. Said
notification shall be delivered not less than 10 days prior to the scheduled
starting date of the excavation.”
Thus, the stated purpose of Section
3307 is to protect adjoining property from construction damage.
a. Baypost’s Evidence
Baypost has provided evidence
that it was retained as the project manager for the development of the uphill
property on August 1, 2015 (UMF Nos. 20, 25) and as general contractor for the
construction of a 30-foot retaining wall extension on the property in 2017. (UMF No. 57.)
Baypost argues it owed Plaintiffs no duty of
care because (1) Baypost did not have any agreement with Plaintiffs and (2)
Baypost did not perform any excavation, construction, grading, or repairs on
Plaintiff’s property. But the lack of
contractual privity or direct work on Plaintiffs’ property does not
negate the duty aspect of negligence per se, which is dictated by
statute. Here, the statute was clearly
designed to protect adjacent landowners, like Plaintiffs, from property damage
during construction, remodeling, and demolition work.
As discussed below, Baypost
also provides evidence that it did not actually perform the construction work
or otherwise control the companies that did actually perform the work, and that
the work Baypost managed/oversaw did not cause Plaintiffs’ damage. But such evidence goes beyond the issues
identified in Baypost’s notice of motion – that Baypost owes no duty in
negligence per se because it did not have a direct contract with Plaintiffs and
did not directly perform any work on Plaintiffs’ property.
Ultimately, even if Baypost
did not have a direct agreement with Plaintiffs and did not perform any work
directly on Plaintiff’s property, it would still a duty under negligence per se
to comply with the building standards codes designed to protect adjacent
property owners, like Plaintiffs, from the type of harm that allegedly occurred.
Baypost argues in reply that
the building code violations cannot form the basis of negligence per se because
there is no private right of action to enforce them. But a statute containing a private right of
action is not a requirement for that statute to form the basis of negligence
per se. Moreover, courts have applied
negligence per say to building code violations involving defendants who played
professional roles in the design or construction. (Jones v. Awad, supra, 39
Cal.App.5th at p. 1212 [collecting cases].)
Therefore, the Court denies
summary adjudication as to issue 1.
3. SUMMARY ADJUDICATION ISSUE 2: NEGLIGENCE
“To state a cause of action
for professional negligence, a party must show (1) the duty of the professional
to use such skill, prudence and diligence as other members of the profession
commonly possess and exercise; (2) breach of that duty; (3) a causal connection
between the negligent conduct and the resulting injury; and (4) actual loss or
damage resulting from the professional negligence.” (Giacometti v. Aulla, LLC (2010) 187
Cal.App.4th 1133, 1137.)
Here again, Baypost argues it
owed Plaintiffs no duty of care.
“[T]he lack of privity of
contract does not preclude imposition of a duty of care.” (Weseloh Family Ltd. Partnership v. K.L.
Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 164 (hereafter Weseloh).) Thus, the fact that there was no direct
contractual relationship between Baypost and Plaintiffs does not automatically
mean that Baypost owed Plaintiffs no duty as a matter of law.
“The determination whether in
a specific case the defendant will be held liable to a third person not in
privity is a matter of policy and involves the balancing of various factors,
among which are [1] the extent to which the transaction was intended to affect
the plaintiff, [2] the foreseeability of harm to him, [3] the degree of
certainty that the plaintiff suffered injury, [4] the closeness of the
connection between the defendant's conduct and the injury suffered, [5] the
moral blame attached to the defendant's conduct, and [6] the policy of
preventing future harm.” (Weseloh,
supra, 125 Cal.App.4th at p. 165.)
Factor 1: The Extent to
which the Construction was Intended to Affect Plaintiffs
In Biakanja v. Irving
(1958) 49 Cal.2d 647 (hereafter Biakanja), the Supreme Court held a
notary public liable for preparing a will (which constituted the unauthorized
practice of law), which was found to be invalid because the notary public
negligently failed to have the will properly attested, causing the intended beneficiary
to inherit only one-eighth of the estate.
In analyzing the first factor, the Supreme Court found that the “end and
aim” of the transaction was to pass the entire estate to the plaintiff. (Id. at p. 650.)
By contrast, although some of
the ground cover and irrigation system were inadvertently installed on a
portion of Plaintiffs’land, the construction work was not intended to affect
Plaintiffs at all. Ideally, the construction and excavation project would have
proceeded without incident solely on the uphill neighbor’s property, and
Plaintiffs’ property would have been unaffected. Thus, unlike in Biakanja, Plaintiffs
were not an intended beneficiary of the work, nor was the “end and aim” of the
construction work designed to impact or affect Plaintiffs at all. Rather, the intended beneficiary of the work
was the uphill landowner.
Factor 2: The Foreseeability
of Harm to Plaintiffs
Here, it was foreseeable that
the downhill adjacent neighbor could be harmed by negligent construction on the
uphill property. Such a scenario has
already been contemplated and addressed in the Building Standards Code. Therefore, just because Baypost did not
perform any construction or excavation directly on Plaintiffs’ property does
not mean that the harm to Plaintiffs was not foreseeable. However, foreseeability is to be given
limited weight in determining whether a duty exists. (Weseloh, supra, 125
Cal.App.4th at p. 167.)
Factor 3: Certainty the
Plaintiffs Sustained Injury and the Closeness of the Connection between
Baypost’s Conduct and that Injury
With regard to certainty that
Plaintiffs suffered injury, Baypost has provided evidence of the damage to
Plaintiff’s property and does not generally deny that Plaintiffs’ property was
damaged. (UMF Nos. 4-6, 8-9.)
Plaintiffs contend that its
property was damaged by virtue of (1) a faulty irrigation system installed to
irrigate newly-installed ground cover on the hill; and (2) a retaining wall
extension erected that did not allow for proper drainage. This resulted in three separate scars
developing on the hill causing landslides in 2017 and 2018.
a. Baypost’s Evidence
With regard to the closeness
of the connection between Baypost’s conduct and Plaintiffs’ injury, Baypost has
provided evidence that Baypost was retained as the project manager for the
development of the uphill property and began work on August 1, 2015. (UMF Nos. 20, 25.) In its role as project manager, Baypost’s
duties “primarily” included scheduling and coordinating work on the project,
scheduling city inspections, confirming completion of work, and recommending
payment pursuant to the owner’s contract terms. (UMF No. 21.) However, this statement does not demonstrate
that Baypost was not involved any construction or excavation work.
Baypost further argues that a
separate company, M&M Landscaping and Gardening Services, with whom Baypost
did not personally contract and over whose work Baypost has no control, planted
the ground cover and installed jute netting and irrigation. However, the Court sustains Plaintiff’s
objections to much of this evidence, except that Baypost did not hire M&M
and did not purchase materials for M&M or otherwise control M&M. (UMF No. 41, 42.)
Baypost also indicates that
for its work as project manager, it was provided repair plans for the scar on
Plaintiffs’ property (UMF No. 47.) Baypost
again argues that another company called Geoworks Engineering Group, Inc., with
whom Baypost did not directly contract and over whose work Baypost contends it had
no control, performed the repair work on the scar. However, the Court also
sustains Plaintiff’s evidentiary objections regarding Geoworks Engineering
Group.
Thus, Baypost has not provided
sufficient admissible evidence that it was not involved in installing the
ground cover or irrigation system Plaintiffs’ contend caused or exacerbated the
damage or repair work on the scar.
Baypost was also retained as
the general contractor for the construction of a 30-foot retaining wall
extension on the uphill property, just above Plaintiffs’ property. (UMF No. 57-58.) Baypost contends that licensed surveyor
Steven Opdahl placed the construction stakes for the retaining wall extension,
and EGM Construction, Inc. constructed the retaining wall extension, but the
Court sustains Plaintiffs’ objections to this evidence.
Baypost further contends that
in August 2018, roughly 3 years after the irrigation system was installed, its
pressure regulator failed, causing two sections of irrigation pipes to
separate, creating two erosion scars, but Baypost has not provided the
requisite foundation for this evidence.
Baypost left the project on August 31, 2018. (UMF No. 67.) Bayanfar also declares that in December 2018,
a “third failure” occurred “during a very heavy rain.” (Bayanfar Decl. ¶ 50.) In context, it appears Bayanfar uses the word
“failure” when he means “scar,” as the evidence only establishes one prior
failure of the irrigation system’s pressure regulator (resulting in two
scars.) The Court further sustains
Plaintiffs’ objections to those portions of Bayanfar’s declaration opining as
to the cause of the third scar.
In September 2019, Baypost
inspected the slope and did not observe any evidence that the retaining wall
was failing. (UMF No. 70.) During that inspection, Baypost observed that
all three scars had been repaired. (UMF
No. 71.) Baypost also observed during
that inspection that a solar panel on a 6-foot tall tower had since been placed
on the border line between the properties sometime after August 30, 2018, when
Baypost left. (UMF No. 80-81.) Baypost had no involvement with the installation
of the solar tower or any knowledge of it prior to observing it during the
September 2019 site visit. (UMF No.
80-83, 85.)
On February 12, 2024, Baypost
was involved in another site inspection.
(UMF No. 73.) During this
inspection, Baypost did not observe any indication that the retaining wall extension
was not performing as designed. (UMF No.
74.) Baypost also observed during this
inspection that the repairs of the three scars appeared intact. (UMF No. 77, 88.) Baypost further observed that the solar tower
he observed in September 2019 had been removed.
(UMF No. 84.)
Thus, Baypost has not met its initial
burdens of production and persuasion in demonstrating that Plaintiffs’ harm was
not closely connected to Baypost’s conduct.
Factor 4: Moral Blame
In Biakanja, the notary
public was found to be morally blameworthy, because in drafting the will, he
engaged in the unauthorized practice of law.
Here, Baypost is alleged to
have violated several sections of the California Building Standards Code that
were, on their face, enacted to protect adjacent landowners, like Plaintiffs
from resulting property damage, like Plaintiffs allegedly suffered.
Further, as discussed above, Baypost
has not met its initial burdens of production and persuasion that it was not
involved in the construction and excavation projects.
As such, the Court cannot say
that Baypost was not morally blameworthy.
Factor 5: Public Policy of
Preventing Future Harm
With respect to the public
policy of holding a defendant liable to a party with whom it has no privity of
contract, Biakanja held that the defendant’s unauthorized practice of
law “should be discouraged and not protected by immunity from civil liability,
as would be the case if plaintiff, the only person who suffered a loss, were
denied a right of action.” (Biakanja,
supra, 49 Cal.2d at p. 651.)
Here, the Building Standards Codes
cited demonstrate a preexisting public policy of protecting the immediately adjacent
property owners from potentially destabilizing construction and excavation of
the type conducted on the uphill property.
On the other hand, the general
rule for contractor liability to third parties is that “after a contractor has
completed a building and it is accepted by the owner, ‘he is not liable to a
third person for damages suffered by reason of the condition of the work even
though he was negligent in carrying out the contract.’” (Hale v. Depaoli (1948) 33 Cal.2d 228,
230 (hereafter Hale).)
There are, however, notable
exceptions to this general rule, in situations where the construction defect
“is of an abnormally dangerous or noxious nature” or “if the nature of a thing
is such that it is reasonably certain to place life and limb in peril when
negligently made” or is otherwise inherently or imminently dangerous. (Hale, supra, 33 Cal.2d at pp.
230-232.) For example, a structural
defect in a railing designed to prevent people from falling would be
“reasonably certain to place life and limb in peril” but a railing that does
not fail for 18 years would not be sufficiently “imminently dangerous” to hold
the contractor liable. (Ibid.) Here, the nature of excavation/construction
on a hill poses an inherent risk to neighboring downhill property, and when
done negligently, is inherently of an abnormally and imminently dangerous character,
as evidenced by the Building Standards Code sections enacted to protect
adjacent property owners from precisely this type of harm, as well as from
physical injury.
Thus, Baypost’s argument that
it was not involved in any construction or excavation work directly on
Plaintiffs’ property, even if true, does not necessarily mean that public
policy weighs against imposing liability on Baypost as a matter of law. And as discussed above, Baypost has not met
its initial burdens of production and persuasion that it was not involved in
the construction and excavation projects such that it would not be culpable for
the construction that was performed.
Therefore, the Biakanja factors
do not preclude liability of an entity like Baypost to Plaintiffs merely
because it was not in privity of contract with Plaintiffs, and Baypost has not
demonstrated it was only involved in construction and excavation projects
intended to be performed on the property of Plaintiffs’ adjacent uphill
neighbor.
As such, Baypost has not met
its initial burdens of production and persuasion that Plaintiff will be unable
to establish it was negligent.
Accordingly, the Court denies summary adjudication as to Issue 2.
4. SUMMARY ADJUDICATION ISSUES 5-6:
INTENTIONAL TRESPASS – STATUTE OF LIMITATIONS
“Trespass is an unlawful
interference with possession of property.”
(Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) “Liability for trespass may be imposed for
conduct which is intentional, reckless, negligent or the result of an extra-hazardous
activity.” (Ibid.)
The FAC alleges Defendants
committed intentional trespass by physically entering (or causing their agents
to enter) Plaintiffs’ property, removing vegetation, and performing grading and
excavation on Plaintiffs’ property. (FAC
¶ 119.)
Code of Civil Procedure
section 338 provides that an action for trespass upon or injury to real
property shall be brought within three years.
a. Baypost’s Evidence
Baypost contends that the
landscaping work where portions of ground coverage and the irrigation system were
mistakenly placed on part of Plaintiffs’ property was completed by October 28,
2015. (UMF No. 33-34, 39.) Yet Plaintiffs did not file suit until June 26,
2019, more than three years later.
However, as discussed above, because
the Court sustains Plaintiff’s’ evidentiary objections in this regard, Baypost
has not met its burdens of production and persuasion to demonstrate that it was
not involved in the subsequent repair work on the scars on Plaintiff’s property. Nor has Baypost demonstrated that such repair
work was done with Plaintiffs’ knowledge and consent, as opposed to an unlawful
interference with Plaintiff’s property.
Therefore, Baypost has not
demonstrated that it did not unlawfully and intentionally enter Plaintiff’s
property within the three years preceding Plaintiff’s June 26, 2019 filing of
the original complaint. As such, the
Court denies summary adjudication as to issues 5 and 6.
CONCLUSION AND ORDER
Therefore, the Court denies Baypost’s Motion for Summary Judgment, or
in the alternative Summary Adjudication in its entirety. Having sustained most of Plaintiff’s
evidentiary objections, the Court finds Baypost has not met its initial burdens
of production and persuasion, and therefore denies summary adjudication as to
all Issues 1-6. Because the Court denies
summary adjudication, it similarly denies summary judgment.
Baypost shall provide notice of the Court’s ruling and file the notice
with a proof of service.
DATED: May 22, 2024 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court