Judge: Michael E. Whitaker, Case: 20STCV43598, Date: 2023-05-23 Tentative Ruling
Case Number: 20STCV43598 Hearing Date: May 23, 2023 Dept: 32
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.
TENTATIVE
RULING
|
DEPARTMENT |
32 |
|
HEARING DATE |
May 23, 2023 |
|
CASE NUMBER |
20STCV43598 |
|
MOTION |
Motion for Summary
Judgment |
|
MOVING PARTY |
Defendants Jamison
Services, Inc. and 7080 Hollywood, LLC |
|
OPPOSING PARTY |
Plaintiff Milton
Alvarenga |
MOVING
PAPERS:
OPPOSITION
PAPERS:
REPLY PAPERS:
1. Reply
to Opposition to Motion for Summary Judgment
BACKGROUND
Plaintiff Milton Alvarenga
(Plaintiff) sued Defendants Jamison Services, Inc. (Jamison) and 7080
Hollywood, LLC (7080 Hollywood), based on injuries Plaintiff sustained while
working on a construction project at a unit located on 7080 Hollywood’s
property. Plaintiff stepped on some
drywall on the floor of a dimly lit area of the subject unit, causing him to
fall. On March 7, 2022, Plaintiff
amended the Complaint to add IgnitedStudios Hollywood, LLC (IgnitedStudios) as
Doe 1.
At the time of the incident,
IgnitedStudios was purportedly leasing from 7080 Hollywood the unit where
Plaintiff’s trip and fall occurred.
Plaintiff alleges causes of action for negligence and premises liability
in the complaint.
Jamison and 7080 Hollywood (Moving
Defendants) move for summary judgment on the Complaint. Plaintiff opposes the motion. Moving Defendants reply.
Preliminarily, the Court notes
Plaintiff filed and served his opposition on Moving Defendants one day
late. The Court further notes that
despite the procedural deficiency, Moving Defendants filed a timely reply to
the opposition fully addressing the merits.
The Court therefore finds Moving Defendants will not be prejudiced by
the Court’s consideration of Plaintiff’s untimely opposition, and, accordingly,
exercises its discretion to do so.
LEGAL
STANDARD – MOTION FOR SUMMARY JUDGMENT
“[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”].)
DISCUSSION
In the complaint, Plaintiff asserts causes of action for negligence and
premises liability. “The elements of a
negligence cause of action are the existence of a legal duty of care, breach of
that duty, and proximate cause resulting in injury. 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, citation omitted.) “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.)
“It is generally true that a person is liable for injuries to another
only as a result of his or her own conduct. Liability 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. Thus, liability is based on his
or her own failure to act reasonably.” (Cody
F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v.
American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises
liability alleges a defendant property owner allowed a dangerous condition on
its property or failed to take reasonable steps to secure its property against
criminal acts by third parties”].)
1.
Duty of Care
Here, Moving Defendants move for summary judgment on the ground that
Plaintiff cannot establish that Moving Defendants owed a duty of care to
Plaintiff. Specifically, Moving
Defendants rely on Day v. Lupo Vine Street, L.P. to argue that the duty
of care imposed on a landlord is limited.
(See Day v. Lupo Vine Street, L.P. (2018) 22 Cal.App.5th 62
(hereafter Day). In Day,
the court of appeal stated in relevant part:
With regard to landlords, reasonable care
ordinarily involves making sure the property is safe at the beginning of the
tenancy, and repairing any hazards the landlord learns about later. Because a
landlord has relinquished possessory interest in the land, his or her duty of
care to third parties injured on the land is attenuated as compared with the
tenant who enjoys possession and control. Thus, 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. The existence of a duty is not an immutable fact, but rather an
expression of policy considerations leading to the legal conclusion that a
plaintiff is entitled to a defendant's protection. Duty is a question of whether the defendant is under
any obligation for the benefit of the particular plaintiff; and in negligence
cases, the duty is always the same—to conform to the legal standard of
reasonable conduct in the light of the apparent risk.
(Day,
supra, 22 Cal.App.5th at pp. 69–70 [emphasis added & cleaned up].)
In opposition, Plaintiff relies on Uccello v. Laudenslayer (1975)
44 Cal.App.3d 504 to contend that there are a number of exceptions to the
general rule of landlord nonliability when a dangerous condition comes into
existence after the tenant has taken possession of the premises. Plaintiff further contends that there are
triable issues of fact as to whether those exceptions are applicable to the
circumstances in the case. However, the
Court finds Plaintiff’s reliance on Uccello v. Laudenslayer to be
misplaced.
First, the Court notes that the appellate court in Uccello v.
Laudenslayer stated the same general rule as did the Day court.
[T]he public policy of this state generally
has precluded a landlord's liability for injuries to his tenant or his tenant's
invitees from a dangerous condition on the premises which comes into existence
after the tenant has taken possession. This is true even though by the exercise
of reasonable diligence the landlord might have discovered the condition. The
rationale for this rule has been that property law regards a lease as
equivalent to a sale of the land for the term of the lease. As stated by
Prosser: In the absence of agreement to
the contrary, the lessor surrenders both possession and control of the land to
the lessee, retaining only a reversionary interest; and he has no right even to
enter without the permission of the lessee. Consequently, it is the general rule that he
is under no obligation to anyone to look after the premises or keep them in
repair, and is not responsible, either to persons injured on the land or to
those outside of it, for conditions which develop or are created by the tenant
after possession has been transferred. Neither is he responsible, in general,
for the activities which the tenant carries on upon the land after such
transfer, even when they create a nuisance.
(Uccello
v. Laudenslayer (1975) 44 Cal.App.3d 504, 510–511 [cleaned up] (hereafter Uccello).)
Second, the Uccello court outlined
the exceptions to the general rule as follows:
To this general rule of nonliability, the law
has developed a number of exceptions, such as 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, where there is a nuisance
existing on the property at the time the lease is made or renewed when a safety
law has been violated, or where the injury occurs on a part of the premises
over which the landlord retains control, such as common hallways, stairs,
elevators or roof.
A common element in these exceptions is that
either at or after the time possession is given to the tenant the landlord
retains or acquires a recognizable degree of control over the dangerous
condition with a concomitant right and power to obviate the condition and
prevent the injury. In these situations, the law imposes on the landlord a duty
to use ordinary care to eliminate the condition with resulting liability for
injuries caused by his failure so to act.
While we have been unable to find a
California case dealing with the precise question of whether a landlord owes a
duty to his tenant's invitees to prevent
injury from a vicious animal kept on the premises with the landlord's consent, we believe public policy requires that a
landlord who has knowledge of a
dangerous animal should be held to owe a duty of care only when he has the
right to prevent the presence of the animal on the premises. Simply put, a landlord should not be held
liable for injuries from conditions over which he has no control.
On the other hand, if a landlord has such a
degree of control over the premises that it fairly may be concluded that he can
obviate the presence of the dangerous animal and he has knowledge thereof, an enlightened public policy requires the imposition of a duty of
ordinary care. To permit a landlord in such a situation to sit idly by in the
face of the know danger to others must be deemed to be socially and legally
unacceptable.
(Uccello,
supra, 44 Cal.App.3d at pp. 511–512 [emphasis added & cleaned
up].)
From the record, the Court
determines that none of the exceptions outlined by the Uccello court are
present herein. In particular, there is
no evidence that (1) Moving Defendants covenanted or volunteered to repair a
defective condition on the subject premises; (2) Moving Defendants had actual
knowledge of defects which are unknown and not apparent to the tenant and Moving
Defendants failed to disclose the defects to the tenant; (3) there was a
nuisance existing on the subject property at the time the lease is made or
renewed when a safety law has been violated; and (4) the injury occurred on a
part of the premises over which Moving Defendants retained control, such as
common hallways, stairs, elevators or roof.
In summary, a landlord’s actual
knowledge of the dangerous condition is required to impose a duty of care. (See Mata v. Mata (2003) 105
Cal.App.4th 1121, 1131–1132 [“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”].)
a. Moving Defendants’ Evidence
Moving Defendants specifically assert they did not owe a duty of care to
Plaintiff because (1) Moving Defendants had leased the units at issue to
IgnitedStudios about five months before the incident; and (2) Moving Defendants
could not enter the subject units without providing 48 hours-notice and
therefore did not have the right or ability to continually inspect and cure
dangerous conditions that may be created.
In support of the foregoing contentions, Moving Defendants first advance
a copy of the Office Lease agreement they entered into with tenant
IgnitedStudios, agreeing to lease suites 102 and 108 of the building located at
7080 Hollywood Boulevard, Los Angeles.
The relevant portions of the Office Lease agreement are as follows:
THIS OFFICE LEASE (“Lease”), dated April 15, 2019, is made and entered into by and between 7080
HOLLYWOOD, LLC, a Delaware limited liability company, c/o Jamison Services,
Inc., a California corporation (“Landlord”) and IGNITEDSTUDIOS HOLLYWOOD, LLC,
a California limited liability company (“Tenant”) . . .
. . .
1.05
Commencement
Date. Subject to adjustment as provided in Article
3,
the term “Commencement
Date” shall mean April 15,
2019.
1.06 Expiration Date.
Subject to adjustment as provided in Article 3, the term “Expiration Date” shall mean January 31, 2028.
. . .
8.02 Tenant’s Obligations.
During the Lease Term, Tenant shall, at its sole cost and expense,
maintain the Premises in good order and repair . . .
8.03 Landlord’s Rights.
Landlord and its contractors shall have the right, at all reasonable
times and upon forty-eight (48) hours’ prior oral or telephonic notice to
Tenant at the Premises, other than in the case of any emergency in which case
no notice shall be required . . .
(Appendix
of Exhibits, Exhibit B.)
Moving Defendants next advance the
declaration of Esther Cho (Cho), the property manager employed by Jamison, who
avers in relevant part to the following:
·
On the
alleged date of accident of September 29, 2019 and to the present date I have
been employed by JAMISON SERVICES, INC., to act as the Property Manager for the
building located at 7080 Hollywood Boulevard, Los Angeles, CA on behalf of the
building’s owner defendant, 7080 HOLLYWOOD, LLC.
·
At the
time of the accident units 102 and 108 were a combined unit located on the
first floor which is located on the ground floor of the building at 7080
Hollywood Boulevard, Los Angeles, CA.
These units have a dedicated exit for those units only. The exit opens out directly onto the public
sidewalk which has adjacent public street parking. These units and the exit to the street were
the premises leased to the tenant, IGNITEDSTUDIOS HOLLYWOOD, LLC, and were not
within the common area controlled by Defendants, JAMISON SERVICES, INC. and
7080 HOLLYWOOD, LLC.
·
“Roberto”
is Roberto Kao who is the brother of Lawrence Kao, the CEO of the tenant,
IGNITEDSTUDIOS HOLLYWOOD, LLC. Lawrence
Kao also signed the Office Lease on behalf of the tenant, IGNITEDSTUDIOS
HOLLYWOOD, LLC. Roberto Kao has never
been an employee, contractor or agent for Defendants, JAMISON SERVICES, INC.
and 7080 HOLLYWOOD, LLC.
·
Defendants,
JAMISON SERVICES, INC. and 7080 HOLLYWOOD, LLC, had no involvement in the work
being done on the date of the accident within units 102 and 108 and did not
hire Plaintiff, Roberto Kao or any other workers who were involved in such
work.
·
Defendants,
JAMISON SERVICES, INC. and 7080 HOLLYWOOD, LLC, had no knowledge of any drywall
placed in units 102 and 108 on the date of the accident and had no knowledge of
any dangerous condition in such units.
·
Defendants,
JAMISON SERVICES, INC. and 7080 HOLLYWOOD, LLC, had no knowledge of any
dangerous condition on the date of the accident at or near the exit door of
units 102 and 108.
(Declaration
of Esther Cho, ¶¶ 2, 6-10.)
Finally, Moving Defendants advance
the following relevant excerpts from Plaintiff’s deposition transcript:
Q. Where
did the accident happen?
A. Within
that same address.
Q. So
are you referring to the 7080 Hollywood Boulevard address?
A. Correct.
Q. In
what unit did the accident happen?
A. In
the first floor, one of the units.
. . .
Q. What
kind of work were you doing?
. . .
A.
I was
carrying wood and debris from that unit to the truck outside.
Q. And who hired you for this
work?
A. Roberto.
. . .
Q. Okay. When [Roberto] said he was the manager, did
he say he was the manager of that ground floor unit?
A. Yes.
Q. Did he tell you he was the
manager of the whole building?
A. No.
(Plaintiff’s
Deposition, pp. 9:25-10:6, 10:11, 10:18-22, 11:15-20.)
The foregoing evidence advanced by
Moving Defendants sufficiently establishes that the dangerous condition in
question, the presence of the drywall on the floor of the unit in conjunction
with the dim lighting, did not exist before IgnitedStudios tenancy began, and
Moving Defendants did not have actual knowledge of the alleged dangerous
condition at the time of the subject incident – Plaintiff tripping and falling.
Accordingly, the Court finds Moving
Defendants have met their initial burden of production/persuasion in
establishing that Moving Defendants did not owe a duty of care to Plaintiff to
reasonably prevent the dangerous condition that caused his injury. Moving Defendants have shifted the burden of
production to Plaintiff to raise triable issues of material fact as to whether
Moving Defendants knew of the dangerous condition, such that Moving Defendants
owed a duty of care to Plaintiff to protect him from it.
b. Plaintiff’s Evidence
Plaintiff’s evidence and arguments advanced in opposition primarily
focus on the degree of control Moving Defendants exercised over the leased
premises when the subject incident occurred, and whether they had constructive
knowledge of the dangerous condition within the leased premises. However, as discussed above, the relevant
legal question before the Court is whether Moving Defendants had actual
knowledge of the presence of the drywall on the floor of the unit, in
conjunction with the dim lighting, creating a dangerous condition.
For example, the following are relevant excepts of Cho’s deposition
advanced by Plaintiff:
Q. Why
did the building allow Ignited Studios to carry out their own renovations?
A. So,
like I said, they hold events in that space, so they did a lot of renovations,
or they frequently did renovating the space.
And so it was pretty typical for them to renovate the space at the time.
Q. And
Jamison knew that; right?
A. From
what I remember, I’m pretty sure they did let us know ahead of time.
Q. Jamison
was aware that these regular renovations would be carried out before September
of 2019; is that a fair statement?
A. Yes.
Q. And.
7080 Hollywood Boulevard also knew that as well.
A. Yes.
. . .
Q. What
did Jamison and Hollywood do to make sure that these renovations were carried
out properly and safely prior to September 30, 2019?
A. Inspections
are done by our building personnel after the construction is done.
Q. Not
during.
A. No.
Q. So3
you never made any trips during this last renovation when the alleged incident
occurred, is that a fair statement?
A. Yes.
. . .
Q. But
this wasn’t just a regular paint job or moving furniture. This was actual construction work being carried
out inside the suites; correct?
A. I
was not aware of that. But, like I said,
property inspections or tenant suite inspections after construction is taken
place during business hours when the engineer is on site.
Q. Who
was the engineer hired by on-site?
A. A
company called ABM.
. . .
Q. What
was ABM’s responsibility with regards to this tenant carrying out these
renovations, if anything?
A. He
– he’s our building engineer. So if he
sees anything wrong with the construction, then it would be reported to our
management office.
. . .
Q. And
so was Carlos expected to visit this job site on a daily basis to make sure
that things were going smoothly?
A. He
is expected to check on the space after the construction is done.
Q. What
about during?
A. No.
. . .
Q. Other
than providing insurance information, wouldn’t Jamison and/or Hollywood want to
know that the tenant was going to do inside there?
A. They
may have gave us a written scope of work, but I don’t recall.
. . .
Q. Were
you permitted to enter the suite during business hours to inspect if you wanted
to?
A. If
we wanted to inspect the tenant’s space, we would have to give prior notice to
the tenant.
Q. Even
during business hours?
A. So,
typically it would be 48 hours before.
. . .
A. So, if we knew the renovation was taking
place, we can just let the tenant know we want to check on it, and we can walk
in.
(Declaration
of Raymond Ghermezian, Exhibit C, 11:8-24, 12:4-14, 13:19-14:2, 14:18-23,
15:12-18, 16:9-13, 17:18-23, 18:12-14.)
Next, Plaintiff highlights other sections
of the Office Lease between Moving Defendants and IgnitedStudios.
9.01 Landlord’s Consent; Conditions. Tenant
shall not make or permit to be made any alterations, additions, or improvements
in or to the Premises ("Alterations") without the prior written
consent of Landlord, which consent, with respect to non . . . structural alterations, shall not be
unreasonably withheld, conditioned, or delayed. Landlord may impose as a
condition to making any Alterations such requirements as Landlord in its sole
discretion deems necessary or desirable . . . .
9.02 Performance of Alterations Work. All
work relating to the Alterations shall be performed in compliance with the
plans and specifications approved by Landlord, all applicable laws, ordinances,
rules, regulations and directives of all governmental authorities having
jurisdiction (including without limitation Title 24 of the California
Administrative Code) and the requirements of all carriers of insurance on the
Premises and the Building, the Board of Underwriters, Fire Rating Bureau, or
similar organization . . . .
(Declaration
of Raymond Ghermezian, ¶ 2, Exhibit 2.) The following is a rule from Exhibit C of the
Office Lease, “Rules and Regulations.”
13. All removals, or the
carrying in or out of any safes, freight, furniture, or bulky matter of any
description must take place during the hours which Landlord may reasonably
determine form time to time. The moving of safes or other fixtures or bulky
matter of any kind must be made upon previous notice to the manager of the
Building and under bis or her supervision, and the persons employed by any
tenant for such work must be reasonably acceptable to Landlord. Landlord
reserves the right to inspect all safes, freight or other bulky articles to be
brought into the Building and to exclude from the Building all safes, freight
or other bulky articles which violate any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part. Landlord reserves the right
to prohibit or impose conditions upon the installation in the Premises of heavy
objects which might overload the building floors. Landlord will not be
responsible for loss of or damage to any safes, freight, bulky articles or
other property from any cause, and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense of
the tenant.
(Declaration
of Raymond Ghermezian, ¶ 2, Exhibit 2.)
Plaintiff additionally advances his
own declaration in which he avers to the following:
·
At about
5:30 a.m., as I was carrying several 2 x 4 pieces of wood from the unit to the
truck, I stepped on some broken drywall pieces which were on the floor on the
left side near the unit entrance/exit.
When I stepped on the broken drywall pieces, I fell and fractured my
foot.
·
At the
time of the incident, it was still dark outside and the unit was dimly lit.
(Declaration
of Milton Alvarenga, ¶¶ 5, 6.) And the following
are relevant excerpts of the deposition of Milton Alvarenga:
Q. Where
in the unit did the accident happen?
A. At
the main entrance.
Q. Okay. Tell me how did the accident happen?
A. In
doing my job both lifting the wood, I stepped on some drywall pieces and I
fell.
Q. So
did this – when you say the main entrance, was this at a doorway?
A. Yes,
one of the main units.
Q. Were
you going in or out of the doorway when the accident happened?
A. Going
out.
. . .
Q. So how did you step on the
drywall?
A. As
I was going out, I stepped on it and fell.
. . .
Q. Was
there lighting in the area at the time?
A. Yes.
Q. So
you could see the area well?
A. Not
exactly.
. . .
Q. Could
you see the area as far as lighting goes?
A. Not
exactly.
(Plaintiff’s
Deposition, pp. 13:4-14, 18:9-10, 18:13-16, 19:10-11.)
Finally, Plaintiff advances the declaration
of Eris Barillas (Barillas), a forensic expert, retained to render safety and
liability expert opinions surrounding Plaintiff’s trip and fall incident. Barillas concludes the subject drywall pieces
created an unsafe condition on the date of Plaintiff’s trip and fall, and
further that the subject property entrance area had very dim, insufficient
lighting. (See, e.g., Declaration of
Eris Barillas, ¶¶ 9, 11, 15.)
Although Plaintiff has established
Moving Defendants has notice of the construction which was taking place on the
leased premises leading up to and at the time of the subject incident,
Plaintiff has failed to proffer sufficient evidence that Moving Defendants had actual
knowledge of the dangerous condition -- the drywall left on the ground of a dimly lit unit
leased by Ignited Studios. Accordingly,
Plaintiff has failed to create triable issues of fact as to whether Moving
Defendants owed a duty of care to Plaintiff.
CONCLUSION AND ORDER
In considering the competent
evidence proffered by Plaintiff and Moving Defendants, and viewing said
evidence most favorably toward Plaintiff, the Court finds that there are no
triable issues of material facts regarding Moving Defendants’ Undisputed
Material Facts Nos. 1-16, and determines, as a matter of law, that Moving
Defendants are not liable for negligence or premises liability because Moving
Defendants did not owe a duty of care to Plaintiff.
Therefore, the Court grants
Moving Defendants’ motion for summary judgment. Moving Defendants are ordered
to give notice of the Court’s ruling and to file a proof of service of the
same.