Judge Michael E. Whitaker, Case 20STCV33065 2023-04-19 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV33065, Date: 2023-04-19 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Theresa Hines (Plaintiff) sued Defendant Bell Partners, Inc. (Defendant) based on injuries Plaintiff alleges she sustained when she was using the toilet in her apartment bathroom, and a cabinet door fell onto her head. Defendant leases the subject apartment, where Plaintiff’s injuries allegedly occurred, to Plaintiff. Plaintiff asserts causes of action for general negligence and premises liability against Defendant in the First Amended Complaint (FAC).

Defendant moves for summary judgment or, in the alternative, summary adjudication of Plaintiff’s FAC. Plaintiff opposes the motion. Defendant replies.

With respect to Defendant’s evidentiary objections to Plaintiff’s evidence advanced in opposition to motion for summary judgment or, in the alternative, summary adjudication, the Court rules as follows:

“[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.) “[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.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) 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.” (Id. 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.)

Defendant argues Plaintiff cannot prevail on the causes of action for negligence and premises liability against Defendant for the following reasons: (1) there is no evidence that Defendant was negligent in the maintenance of the subject property; (2) Defendant did not have notice of the alleged dangerous condition; and (3) Plaintiff’s allegations that Defendant’s purported negligence caused her injuries are speculative.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.) Further, liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.)

Stated differently, because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].)

The defendant market owner was not an insurer of the safety of his patrons, but owed them the duty to exercise reasonable care in keeping the premises safe for his invitees. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it. Whether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.

Defendant first argues that Plaintiff cannot support her claims for negligence and premises liability because Plaintiff has no sufficient, competent evidence to establish that an act or omission on the part of Defendant in the maintenance of the subject apartment caused Plaintiff’s injuries. Specifically, Defendant contends it met the duty it owes to Plaintiff as her landlord by ensuring the apartment was safe at the beginning of the tenancy and by repairing any hazards that Plaintiff notified Defendant of after she took possession of the unit. Defendant advances the following Undisputed Material Facts (hereinafter UMFs) in support of the contention:

· On June 1, 2018, before the Plaintiff moves into the apartment, Kim Resendiz inspects the unit and notes no issues with the unit.

· When the inspection is performed, Mr. Resendiz uses a drill and to see what other screws need tightening, if any. He is guided not just by his own expertise but, by a "market ready checklist."

· Mr. Resendiz inspects the subject unit again by at the time of move-in. At this time, no issues were noted.

· The leasing consultants' inspection follows Mr. Resendiz's inspection and occurs before Plaintiff takes possession of the premises. Mr. Kilter's inspection is visual and includes an inspection of the cabinets in the Plaintiff's unit.

· All new residents are obligated to complete a move-in inspection form titled "Inventory and Condition Form."

· Following the Incident, a Professional Engineer inspects the cabinet, takes photographs of the cabinet and records his findings.

· Mr. Fruct opined the cabinet door was pulled down accidentally or intentionally.

· Plaintiff never requested a repair by Defendants of anything in her unit before September 1, 2018.

· Plaintiff only requested new light bulbs and cleaning of a vent and filter in the restroom and spider webs in the kitchen, in her unit before September 1, 2018.

· No one complained to the Defendants or demanded repairs to the condition of the cabinet door until after the door fell in September 2018.

Defendant next contends that it had neither actual nor constructive notice of the dangerous condition of the cabinet before the incident occurred resulting in Plaintiff’s injuries. Defendant advances the following UMFs in support of this contention, in addition to UMFs 3, 7-9, 20, and 22 which are listed above:

· Plaintiff, herself, also makes notes of items she noticed during her inspection.

· Plaintiff never gave notice to defendants regarding any condition of the cabinet door before it fell in September, 2018.

· Plaintiff never requested a repair by Defendants of anything in her unit before September 1, 2018.

· Plaintiff only requested new light bulbs and cleaning of a vent and filter in the restroom and spider webs in the kitchen, in her unit before September 1, 2018.

· Plaintiff never noticed the screws on the cabinet door were unfastened before it fell.

· The Plaintiff did not have any knowledge as to whether the screws were loose or otherwise missing on the cabinet.

· Plaintiff did not notice the cabinet door was loose at any time prior to September 1, 2018.

· No anyone on behalf of Plaintiff gave notice to the Defendants about any defect with the cabinet door at any time prior to September 1, 2018.

· No one on behalf of Plaintiff gave notice to the Defendants that the cabinet door needed repair before September 1, 2018.

· At the time of the Incident, Defendants had relinquished control of the Premises to Plaintiff for eighty-eight (88) days.

(UMFs 11, 13-14, 21, 25-29, 31.) Based on the foregoing Defendant concludes that it did not have actual or constructive knowledge of the cabinet’s condition based on the following: (1) its reasonable inspection of the cabinet not revealing a defect; (2) Plaintiff’s inspection of and failure to detect the cabinet defect; and (3) the lack of any report by Plaintiff or any other tenant putting Defendant on notice of the cabinet condition.

“A defendant or cross-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. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].)

Equally, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence. The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)

In opposition, Plaintiff argues that Defendant has mischaracterized much of the evidence advanced in support of the motion. For example, Plaintiff calls into question UMFs 3 and 6-10, which are based on the deposition transcript of Jason Madeira, the regional manager of the property in question, and also Defendant’s person most knowledgeable (Madeira). Plaintiff highlights that while Madeira is able to testify to the usual practice and procedure of Defendant to perform two separate inspections of a unit, Madeira is not able to confirm that such inspections were actually performed in regard to the subject unit before Plaintiff took possession, and particularly whether a sufficient inspection of the subject cabinet was performed. First, in regard to the purported inspection performed by Mr. Resendiz, Madeira testifies to the following:

Q. . . . And do you know if the unit in question, where my client was residing in, was inspected – do you know when – when the unit my client was residing in was inspected prior to the incident?

A: Yes, sir. At – at time of turnover of that specific apartment to get it prepared to re-rent –

Q. . . . Who was the person or persons who inspected that unit at the time of turnover and at the time of move-in?

A. I’m just going through the – so it’s called the “market-ready checklist.”

A. . . . it’s a final inspection of the unit after it’s tie to get it ready to rent.

Q. Okay. And does the inspection form that you’re looking at say anything about the cabinet in question?

Q. So, as you sit here, you don’t know whether the cabinet in question was inspected or not?

A. There wasn’t any specific notes about the cabinet. But it was checked off as it was inspected.

Q. Okay. And do you know what the maintenance manager was supposed to – or how the maintenance manager was supposed to inspect the cabinets? What was – what was – what was he or she supposed to do?

A. They typically open the cabinet doors, check shelving, check all the – all the screws – the screws, and the hinges as well and ensure that they are all secure and they open and close properly.

A. . . . we make sure that all screws are secured and securely tightened as if you were to purchase it from the manufacturer and make sure that it’s in the condition as it was when it was purchased.

Q. And – and – so back in September of 20- -- back in June of 2018, when an inspection was done, it’s your testimony that Mr. Resendiz was supposed to use – use a drill and – and – and see what – see whether all screws were tightened?

(Deposition of Jason Madeira, pp. 22:1-26:17.) [1] Plaintiff points to the foregoing deposition testimony to indicate that there remain triable issues of fact as to whether Mr. Resendiz completed a sufficient inspection of the subject unit, and the cabinet in question, before Plaintiff took possession of the apartment.

Next Plaintiff argues that Madeira’s deposition testimony does not support Defendant’s UMFs 9 and 10 which state that a leasing consultant named Kent Kilter inspects the subject unit after Mr. Resendiz’s inspection. Madeira testifies to the following regarding the leasing consultant’s inspection:

A. After his – his inspection is completed, it is also reviewed by our leasing consultant assigned to leasing that apartment for Ms. Hines . . .

Q. So what – what aspect of his inspection is – is reviewed by the leasing consultant?

A. It is more of a – visual inspection and working – opening and closing all of the cabinets, checking the blinding, checking the thermostat, ensuring the temperature is heated, checking the hot water, and also the cleanliness of the unit.

Q. Do you know who, if anyone, reviewed Mr. Resendiz’s inspection after inspecting the premises in June of 2018?

A. Not specifically at this time. I can’t find out who the actual leasing consultant was.

(Deposition of Jason Madeira, pp. 27:5-28:2.) Defendant only cites to Madeira’s deposition testimony in support of UMFs 9 and 10, yet the foregoing is Madeira’s only mention of a leasing consultant inspection, and nowhere in his deposition testimony does he mention a “Kent Kilter.” The Court cannot find any further evidence of an inspection of the subject apartment and cabinet conducted by a Kent Kilter, within the evidentiary record advanced by Defendant, and thus finds that Defendant has failed to support UMFs 9 and 10 with sufficient, competent evidence.

The Court further notes that Madeira had served as regional manager for Defendant for only six months prior the deposition date of August 31, 2021, and thus did not hold the position of regional manager at the time of the purported inspections in question. (See Deposition of Jason Madeira, p. 6:2-9.)

Plaintiff also calls into question UMF 20 which is based on the “Distress Assessment” completed by Adrian Fruct, a registered Civil Engineer (Fruct). Plaintiff contends that UMF 20 is an incomplete characterization of Fruct’s conclusion about the incident in question. Fruct concluded the following about the subject cabinet in his “Distress Assessment”:

· The asserted bathroom cabinet door fall on the claimant’s head was caused by the door having been pulled out of the cabinet wall at the top hinge, either intentionally or accidentally, most likely prior to the asserted date of loss, with the screws re-inserted back into the damaged holes prior to its coming off (once the door fell off, the screws would have fallen onto the floor).

· It appears unlikely, but possible, that the door hinge screw attachment had been damaged and then reset by a former tenant prior to the claimant’s occupancy in June 2018, although the building’s management appears to have checked the cabinet door prior to her moving in and the tenant appears to have checked everything in the apartment as well.

(Compendium of Exhibits, Exhibit B, Bates Nos. 0037-0038.) Plaintiff highlights that Fruct concludes that the subject cabinet door was likely pulled out of the cabinet wall prior to the date of loss.

Based on the foregoing, the Court agrees with Plaintiff that Defendant’s evidence does not foreclose the issue of whether Defendant met the applicable duty of care it owed to Plaintiff as her landlord. For example the Court finds there remains triable issues of fact as to whether a sufficient inspection of Plaintiff’s apartment and the subject cabinet was performed before Plaintiff took possession of the unit. Direct evidence of Mr. Resendiz or the other leasing consultant’s purported inspections have not been advanced to establish the completion of such inspections, nor their thoroughness. It is further unclear whether Madeira has sufficient personal knowledge to confirm the performance and thoroughness of such inspections which would have taken place at least a year before he became regional property manager for Defendant.

Further the Court finds that though Fruct’s conclusions indicate that the incident in question was a result of the subject cabinet being pulled down, Fruct also opines that the cabinet was likely reinstalled after it was pulled down, ultimately leading to it unexpectedly fall on Plaintiff. Thus there additionally remains a question as to whether the cabinet was pulled down and possibly reinstalled before or after Plaintiff took possession of the apartment.

Because Defendant has not conclusively established that (1) a thorough inspection of the cabinet was completed prior to Plaintiff’s possession of the apartment, and (2) when the cabinet condition was created, there also remains a triable issue of fact as to whether Defendant’s inspection in preparation of Plaintiff’s occupancy of the apartment should have detected the cabinet condition, thus putting Defendant on constructive notice of the dangerous condition of the cabinet.

As discussed above, UMFs 3, 6-10, and 20 are not conclusively established by the evidence proffered by Defendant. In the absence of those material facts, Defendant will not be able to persuade the Court that Defendant was not negligent in its inspection and upkeep of the subject apartment unit as a matter of law, and further that it did not have either actual or constructive notice of the subject cabinet condition.

In short, because Defendant fails to support all of the facts it claims are material and undisputed with sufficient, competent evidence, the Court finds that Defendant has not met its initial burdens of production and persuasion regarding the issues of Defendant’s purported negligence and premises liability. Consequently, the Court determines that the burden of production does not shift to Plaintiff to produce evidence that raises triable issues of material fact.

The Court finds that there are triable issues of material fact regarding whether Defendant breached its duty as a landlord and whether that breach of duty caused or contributed to Plaintiff’s injuries.

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorable toward Plaintiff, the Court finds that there are triable issues of material fact concerning whether Defendant was negligent in its inspection and maintenance of the subject property, whether it had actual or constructive notice of the dangerous cabinet in question, and whether its purported negligence caused Plaintiff’s injuries. In particular, the Court finds that there are triable issues of material fact concerning Defendant’s Undisputed Material Facts 3, 6-10, and 20. In other words, the Court cannot find as a matter of law that Plaintiff cannot establish the requisite elements of his claims of negligence and premises liability.

Therefore, the Court denies Defendant’s motion for summary judgment. The Clerk of the Court shall provide notice of the Court’s ruling.

[1] The Court notes that Plaintiff’s reliance on the following line of questioning is problematic when used to support her contention that Madeira cannot conclusively confirm Mr. Resendiz’s inspection of the subject apartment:

Q. Okay. But you don’t know whether he actually did that or not when he inspected the premises in June of 2018. Am I correct?

A. No, sir.

(Deposition of Jason Madeira, p. 26:19-22.) Based on Madeira’s response to counsel’s question, the suggestion that Madeira did not actually know whether Mr. Resendiz performed the described procedures when he inspected the premises in June of 2018 is not correct. As such, the Court will disregard this particular section of Madeira’s deposition testimony when assessing whether Defendant has met its burden of production and persuasion.

[2] “[A] defendant’s conduct is a cause of a plaintiff’s injury if: (1) the plaintiff would not have suffered the injury but for the defendant’s conduct, or (2) the defendant’s conduct was one of multiple causes sufficient to cause the alleged harm.” (Union Pacific Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th 974, 981 [citing Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 and Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049].) Legal causation is generally a question of fact to be determined by the jury unless, as a matter of law, the facts admit of only one conclusion. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06.)

DEPARTMENT	32
HEARING DATE	April 19, 2023
CASE NUMBER	20STCV33065
MOTION	Motion for Summary Judgment or, in the alternative, Summary Adjudication
MOVING PARTY	Defendant Bell Partners, Inc.
OPPOSING PARTY	Plaintiff Theresa Hines