Judge Michael E. Whitaker, Case Number: 21SMCV01223, Date: 2023-09-28 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21SMCV01223, Date: 2023-09-28 Tentative Ruling

Plaintiff Randy Zasloff (“Plaintiff”) sued Defendants Public Storage Inc.; PS LPT Properties Investors; Public Storage Business Parks; and PS Business Parks, L.P., for Breach of Contract and Negligence in connection with a storage unit Plaintiff alleges he rented from Defendants. (See Fourth Amended Complaint filed November 4, 2022.)

Defendants Public Storage, a Maryland REIT (erroneously Sued and served as Public Storage Inc.); PS LPT Properties Investors; Public Storage Business Parks; and PS Business Parks, L.P. (collectively, “Defendants”) move for summary judgment, or in the alternative, summary adjudication on the following five issues:

1. Whether the release and waiver provision of the applicable lease/rent agreement bars liability in this case;

2. Whether Plaintiff’s causes of action for breach of contract and negligence are time-barred;

3. Whether Plaintiff’s claims for damages over $5,000 are waived by written agreement;

4. Whether Plaintiff’s claims were filed and litigated in the wrong forum; and

5. Whether the Fourth Amended Complaint fails to state a cause of action or basis for Plaintiff to sue.

“[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.)

Defendants request the Court take judicial notice of the fact “[t]hat Plaintiff filed his original Complaint in this action on July 20, 2021 as reflected in the Court’s records.” Plaintiff has not objected to Defendants’ Request for Judicial Notice.

Judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because the original complaint is part of the Court’s record for this case, the Court may take judicial notice of it and the date it was filed. (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].) Accordingly, the Court takes judicial notice of the fact that the original complaint was filed in this matter on July 20, 2021 as a court record, but not the truth of the allegations contained therein.

Defendants object to paragraphs two through ten of the ten-paragraph declaration of Randy Zasloff submitted in support of the Opposition to the Motion for Summary Judgment/Adjudication on the basis that the declaration is not signed under penalty of perjury.

Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:

“I certify (or declare) under penalty of perjury that the foregoing is true and correct”:

“I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct”:

A declaration that is not signed under penalty of perjury under the laws of the State of California as required by Section 2015.5 “has no evidentiary value” and the court need not consider it. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.)

Plaintiff’s declaration submitted in support of the Opposition to the Motion for Summary Judgment/Adjudication does not contain language that the declarant certifies or declares under penalty of perjury that the contents of the declaration are true and correct under the laws of the State of California. Therefore, the Court sustains Defendants’ objections to the Zasloff declaration. The Court cannot consider Plaintiff’s declaration in connection with this motion.

Defendants have argued that the lease agreement bars their liability. In support, Defendants have produced the signed (and initialed) lease agreement which contains the following provisions:

7. LIMITATION OF OWNER’S LIABILITY; INDEMNITY. Owner and Owner’s Agents will have no responsibility to Occupant or to any other person for any loss, liability, claim, expense, damage to property or injury to persons (“Loss”) from any cause, including without limitation, Owner’s and Owner’s Agent’s active or passive acts, omissions, negligence or conversion, unless the Loss is directly caused by Owner’s fraud, willful injury or willful violation of law. Occupant shall indemnify and hold Owner and Owner’s Agents harmless from any loss incurred by Owner and Owner’s Agents in any way arising out of Occupant’s use of the Premises or the Property including, but not limited to, claims of injury or loss by Occupant’s visitors or invitees. Occupant agrees that Owner’s and Owner’s Agents’ total responsibility for any Loss from any cause whatsoever will not exceed a total of $5,000. By INITIALING HERE ___, Occupant acknowledges that he understands and agrees to the provisions of this paragraph. (UMF 5) (emphasis original.)

6. INSURANCE; RELEASE OF LIABILITY. ALL PERSONAL PROPERTY IS STORED BY OCCUPANT AT OCCUPANT’S SOLE RISK. INSURANCE IS OCCUPANT’S SOLE RESPONSIBILITY. OCCUPANT UNDERSTANDS THAT OWNER WILL NOT INSURE OCCUPANT’S PERSONAL PROPERTY AND THAT OCCUPANT IS OBLIGATED UNDER THE TERMS OF HIS LEASE/RENTAL AGREEMENT TO INSURE HIS OWN GOODS […] Owner and Owner’s agents, affiliates, authorized representative and employees (“Owner’s Agents”) will not be responsible for, and Occupant hereby releases Owner and Owner’s Agents from any responsibility for, any loss, liability, claim, expense or damage to property that could have been insured (including without limitation any Loss arising from the active or passive acts, omissions or negligence of Owner or Owner’s Agents)(the “Released Claims”) [.…] By INITIALING HERE ___, Occupant acknowledges that he understands and agrees to the provisions of this paragraph and agrees to these provisions and that insurance is Occupant’s sole responsibility.” (UMF 4) (emphasis original.)

16. NO WARRANTIES; ENTIRE AGREEMENT. Owner hereby disclaims any implied or express warranties, guarantees or representations of the nature, condition, safety or security of the Premises and the Property and Occupant hereby acknowledges that Occupant has inspected the Premises and the Property hereby acknowledges and agrees that Owner does not represent or guarantee the safety or security of the Premises or the Property or of any personal property stored therein, and this Lease/Rental Agreement does not create any contractual obligation for Owner to increase or maintain such safety or security. This Lease/Rental Agreement and any written amendments or addenda executed at the same time as this Lease/Rental Agreement, and any notice provided under this Agreement by Owner, set forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings with respect thereto. With the exception of posted rules and regulations as noted in paragraph 14, there are no representations, warranties or agreements by or between the parties which are not set forth herein and no representative of Owner or Owner’s Agent is authorized to make any representations, warranties, or agreements other than as expressly set forth herein and, further, with the exception of any subsequent notice from Owner to Occupant of adjustments as provided in paragraph 2 above, this Lease/Rental Agreement may only be amended by a writing signed by the parties. (UMF 8) (emphasis original.)

Plaintiff separately initialed paragraphs 6 and 7 of the agreement. (See Defendants’ Notice of Lodgment, Exhibit B.) Thus, Defendants have met their initial burdens of production and persuasion establishing that no triable issues of material fact exist as to Issue Number 1. To wit, Defendants have shown that Plaintiff waived any claims stemming from his rental of a Public Storage unit, including the claims for breach of contract and negligence.

Plaintiff does not proffer any admissible evidence in opposition. Rather, Plaintiff cites to evidence advanced by Defendants and argues that (1) Defendants’ breach of the lease agreement was willful; (2) the lease is a contract of adhesion; and (3) the provisions are not reciprocal. (Opp. at p. 4:7-9.) Additionally, Plaintiff argues that the liability waiver in the contract may be invalidated under Tunkl because the agreement “involves a contractual relationship of public interest.” (Opp. at p. 7:12-15.)

In support of Plaintiff’s argument that the Defendants’ breach was willful, Plaintiff argues that Defendants failed to give Plaintiff adequate notice as is required by paragraph 12 of the Lease Agreement before locking him out of his unit, refusing to let him enter the unit to timely retrieve his belongings, and informing the police that Plaintiff was trespassing.

12. TERMINATION AND DEFAULT. Owner may terminate this Lease/Rental Agreement (i) if Occupant is not in default of this Lease/Rental Agreement by giving written notice to Occupant by first class mail or electronic mail at the last known physical address or email address provided to Owner in writing by Occupant not less than seven (7) days before expiration of the term or, (ii) if Occupant is in default of this Lease/Rental Agreement, by notice two (2) days in advance at any time during the term.

Defendants’ position is that Plaintiff defaulted on the agreement by recording Public Storage employees on site without asking their permission first, taking photos of employees’ license plates, engaging in arguments with employees, making the employees feel harassed, and printing flyers dissuading customers from renting storage units there. (UMF 15-16.)

On August 2, 2019, Plaintiff was personally served by a police officer with the notice, which listed a termination effective end of business day on August 5, 2019. (UMF 12, 14.) Thus, while the parties may dispute whether Plaintiff’s conduct rose to the level of constituting a default on the agreement, the evidence before the Court does not establish that Defendants’ provision of 3 days’ notice of termination of the agreement “for cause” is a willful breach of the lease agreement, which requires only two days’ notice if termination is for cause.

With respect to refusing to let Plaintiff enter the unit, Plaintiff cites to page 108, line 16 of the Deposition, which indicates a police officer, not any employee of Defendants’, told Plaintiff he had one day to come back and retrieve his belongings – on August 5 – even though the termination letter informed Plaintiff he could remove his belongings from the unit any time before close of business on August 5.

With respect to changing the lock, page 107 of Plaintiff’s deposition indicates only that the police told him Public Storage changed the lock on Plaintiff’s unit at some point between when he got the termination notice on August 2 and when he came back on August 5 to retrieve his belongings. There is no evidence in the record that Defendants actually changed the lock on the unit prior to the end of the business day on August 5.

Therefore, Plaintiff has not met his burden of production to establish a triable issue of material fact regarding whether Defendants cause willful injury or willful violation of law.

Plaintiff’s second argument is that Defendants may not cite to provisions of the lease agreement to defend themselves because the Lease Agreement is a contract of adhesion.

“Unconscionability is ultimately a question of law for the court.” (Flores v. Transamerica Homefirst, Inc. (2001) 93 Cal.App.4th 846, 851.) “However, numerous factual issues may bear on that question.” (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89.) As such, Respondent must show two elements to establish the unconscionability defense: (1) procedural unconscionability, which focuses on the manner in which the contract was negotiated, and (2) substantive unconscionability, which concerns whether the contract’s terms are unreasonably one-sided. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113-115 (hereafter, Armendariz).)

“The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th at p. 114 [cleaned up].)

Procedural unconscionability examines the “oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice.” (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Preprinted forms buried within a volume of documents offered on a “take or leave it basis” evidence a high degree of procedural unconscionability. (See Dougherty v. Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 102-104 (hereafter, Dougherty).) Most consumer contracts are adhesive and therefore present some procedural unconscionability. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915, (hereafter, Sanchez).) “[A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.” (Ibid.)

Foremost, the Court finds that Plaintiff has not advanced any competent evidence to establish that the subject agreement is procedurally unconscionable. But upon reviewing the agreement, the Court finds that the agreement is not procedural unconscionable, notwithstanding Plaintiff’s contentions.

The Court first notes that Plaintiff signed the agreement and initialed parts of the agreement, acknowledging, for example, “that he understands and agrees to the provisions of this paragraph.” (See Defendants’ Notice of Lodgment, Exhibit B, § 7.) Moreover, the Court notes that certain terms in Sections 1, 4, 5, 6, and 7 of the agreement are in bold, highlighting the importance of such terms including the waiver provisions in Section 7. (Id. at §§ 1, 4, 5, 6, 7, 16.) Thus, when viewing the terms of the agreement against Plaintiff’s contentions, the Court finds that Plaintiff could have declined to enter into the agreement with the terms as drafted by Defendants. In short, the Court determines that the agreement is not procedurally unconscionable, and with that finding, the Court need not reach the issue of whether the agreement is substantively unconscionable. [3]

Plaintiff’s final argument as to the waiver of liability is that the Tunkl factors warrant invalidating the liability provision.

Civil Code section 1668 provides, “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”

Despite its broad language, however, Section 1668 only applies to contracts that involve “the public interest.” (Cregg v. Ministor Ventures (1983) 148 Cal.App.3d 1107, 1111.) Storge lease agreements have been previously held to not involve “the public interest.” (Ibid.) Moreover, lease agreements generally involve simply a matter “of interpreting a contract; that both parties are free to contract; that the relationship of landlord and tenant does not affect the public interest; that such a provision affects only the private affairs of the parties.” (Barkett v. Brucato (1953) 122 Cal.App.2d 264, 276.)

In any event, the terms of the waiver provision at issue here carve out Public Storage’s responsibility for its own fraud, willful injury, and violation of law. Thus, Civil Code section 1668 does not invalidate the waiver provision at issue here.

As such, the Court grants Defendants’ motion for summary adjudication as to Issue No. 1: whether the liability waiver bars Plaintiff’s claims.

In the alternative, Defendants also contend that Plaintiff’s claims are time barred, because they accrued in July or August 2019, whereas Plaintiff did not file the original complaint in this matter until July of 2021.

Because Plaintiff initiated the action against Defendants more than 12 months after the alleged harm arose at the end of July and beginning of August 2019, Defendants have met their initial burdens of production and persuasion that there are no triable issues of material fact regarding whether Plaintiff’s claims are time-barred per the agreement.

Plaintiff has not proffered any admissible evidence, but makes the same legal arguments as above with respect to the time limitation clause.

It is “well-established that parties to a contract may agree to a provision shortening the statute of limitations, qualified, however, by the requirement that the period fixed is not in itself unreasonable or is not so unreasonable as to show imposition or undue advantage.” (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 73.) “Reasonable in this context means the shortened period nevertheless provides sufficient time to effectively pursue a judicial remedy.” (Ibid.)

Here, the parties contracted to a limitations period of twelve (12) months following the date of the event giving rise to Plaintiff’s claims. That is not so short as to prevent Plaintiff from adequately investigating his claims and pursuing a judicial remedy.

Thus, the limitations provision is valid and enforceable, and bars Plaintiff’s claims, which were filed well after twelve months following the incident. As such, the Court grants Defendants’ motion for summary adjudication as to Issue No. 2: whether Plaintiff’s Claims are time-barred.

Because resolution of Issues 1 and/or 2 resolve all of Plaintiff’s claims in Defendants’ favor, the Court does not address Defendants’ additional arguments that Plaintiff’s damages are limited to $5,000; that Plaintiff was required to bring suit in small claims court; and that Plaintiff failed to state a cause of action against Defendants PS LPT Properties Investors, Public Storage Business Parks and PS Business Parks, L.P.

Considering the competent evidence proffered by Defendants, and viewing said evidence most favorably to Plaintiff, the Court finds that Plaintiff has not met his burden of production in establishing that triable issues of material fact exist with respect to Issues Nos. 1 and 2.

In particular, the Court finds that the liability waiver provision of the rent/lease agreement is valid, enforceable, and bars all of Plaintiff’s claims. In the alternative, the Court finds that the time limitation provision of the rent/lease agreement is valid, enforceable, and bars all of Plaintiff’s claims.

The Court therefore grants Defendants’ motion for summary judgment. The Court orders Defendants to give notice of the Court’s ruling, and to file a proof of service of such.

[1] The Court finds that Defendants have failed to electronically file with the Notice of Lodgment the referenced exhibits, and as such, the Court orders Defendants to file forthwith an Amended Notice of Lodgment with the referenced exhibits attached.

[2] The Court finds that Plaintiff has failed to electronically file with the Notice of Lodgment the referenced exhibits, and as such, the Court orders Plaintiff to file forthwith an Amended Notice of Lodgment with the referenced exhibits attached.

[3] Substantive unconscionability refers to agreement terms which are overly harsh, unduly oppressive, unreasonably unfavorable, or so one-sided as to shock the conscience – which, for practical purposes, all mean the same thing. (Sanchez, supra, 61 Cal.4th at p. 915.) With regard to demonstrating substantive unconscionability, an “old-fashioned bad bargain” or a contract term which “merely gives one side a greater benefit” is insufficient. (Id. at pp. 911-912.) The test for substantive unconscionability is whether the terms impair the integrity of the bargaining process or otherwise contravene public policy, or the terms “attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law” or “negate the reasonable expectations of the nondrafting party.” (Sonic-Calabassas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145; see also Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 247 [“outside the reasonable expectation of the nondrafting party or is unduly oppressive”]; Dougherty, supra, 47 Cal.App.5th at pp. 104-107 [arbitration agreement that curtailed plaintiffs’ ability to recover statutory remedies, such as punitive damages and attorney fees, and contained limitations on discovery that risked frustrating plaintiffs’ statutory elder abuse claims was substantively unconscionable].)

DEPARTMENT	207
HEARING DATE	September 28, 2023
CASE NUMBER	21SMCV01223
MOTION	Motion for Summary Judgment/Adjudication
MOVING PARTIES	Defendants Public Storage, a Maryland REIT (Erroneously Sued and served as Public Storage Inc.); PS LPT Properties Investors; Public Storage Business Parks; and PS Business Parks, L.P.
OPPOSING PARTY	Plaintiff Randy Zasloff