Judge Michael E. Whitaker, Case Number: 22SMCV02419, Date: 2024-12-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV02419, Date: 2024-12-12 Tentative Ruling

On November 21, 2022, Plaintiff Susan Burnham (“Plaintiff”) brought suit alleging two causes of action for (1) premises liability and (2) general negligence; arising from an incident in which Plaintiff allegedly tripped and fell on construction debris that had not been cleared away from the subject premises. The suit was originally brought against Defendants 1340 Crescent Hts., LLC; Morris Bekas; Shirley Bekas; David Mazewski; and Debra Mazewski. Plaintiff subsequently named Quakestrong as Doe 1; the Beaumont Co. as Doe 2; Doris Goldberg as Doe 3; Leo Kleiman as Doe 4; Sam Goldberg as Doe 5.

Defendant Quakestrong (“Defendant” or “Quakestrong”) now moves for summary judgment, or in the alternative summary adjudication, as to Plaintiff’s complaint on the following issues:

1. Issue 1: There is no evidence that Quakestrong owed any duty to Plaintiff under her first cause of action (for “Premises Liability”) and/or second cause of action (for “General Negligence”).

2. Issue 2: There is no evidence that Quakestrong breached any duty to Plaintiff under her first cause of action (for “Premises Liability”) and/or second cause of action (for “General Negligence”).

3. Issue 3: There is no evidence that Quakestrong caused Plaintiff’s injuries/damages under her first cause of action (for “Premises Liability”) and/or second cause of action (for “General Negligence”).

“[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.)

“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.)

Here, Defendant argues (1) it did not owe Plaintiff a duty of care; (2) it did not commit any breach; and (3) Quakestrong did not cause Plaintiff’s injuries.

In support, Defendant has advanced the following Undisputed Material Facts (“UMF”) supported by sufficient competent evidence:

· Plaintiff alleges on December 5, 2020 at approximately 7:00 a.m. she slipped and fell on the second to last step while descending a set of stairs in the apartment complex where she resided that led to the parking garage/dumpster area below her apartment. (UMF Nos. 1-2.)

· The premises are owned by Defendants Morris Bekas, Shirley Bekas, David Mazewski, Debra Mazewski-Lewis, Doris Goldberg, Sam Goldberg, and Leo Kleiman (“Owners”). (UMF No. 3.)

· Defendant Beaumont Co. managed the premises pursuant to a management contract between itself and several Owners. Beaumont delegated some of its day-to-day management responsibilities to on-site property manager Bill Von Ravensberg and delegated responsibility for cleaning common areas to third-party cleaning service J&V Janitorial. (UMF No. 4.)

· Defendant Beaumont Co. hired Quakestrong to perform seismic retrofitting at the Premises from approximately October 22, 2020 to December 28, 2020, but was not performing any work at the Premises at the time of the incident. (UMF No. 12.)

· Quakestrong’s work took place in the garage only and did not require Quakestrong to perform work on or utilize the stairs (UMF No. 13.)

· Quakestrong specifically prohibited its employees/personnel from using the stairs or entering any portions of the premises outside the garage. (UMF No. 17.)

· Quakestrong did not use the type of nail Plaintiff claims was the “screw” she slipped on because the nail in question contained a small type of strip nail used in nail guns, which Quakestrong did not use on the project. (UMF Nos. 21-22.)

· The fact that a piece of collated nail strip was still attached to the nail also demonstrates that this particular nail was never used in the course of construction. (UMF No. 23.)

· Plaintiff did not recall observing any nails or screws on the stairs prior to the incident. (UMF Nos. 6-7, 24.)

In opposition, Plaintiff points out that she testified that she was “pretty sure” she slipped on either a nail or screw on the stairway. Plaintiff has also advanced the following additional material facts supported by sufficient competent evidence:

· On December 5, 2020, at approximately 7:00 a.m., Plaintiff was descending the stairwell adjacent to the construction area when she slipped on a nail or screw. Supporting Evidence: Exhibit 1, Burnham Depo, p.64, lines 10-20; 85:25-86:4; 124:13-19 Exhibit 5-11, Photograph of nail or screw, authenticated at p. 103 of the Burnham Depo.

· Plaintiff assumes the nail depicted in the Exhibit 10 photo is the “screw” she slipped on because it was later found behind the door in the area where she slipped. Supporting Evidence: Exhibit 1, Burnham Depo at p. 100:1-19.

· At the time of the incident, Defendant Quakestrong was performing a seismic retrofitting project at the Premises, and their activities included demolition work involving stucco removal, concrete removal, and ceiling removal in the garage area. Supporting Evidence: Exhibit 2, Gonzalez Depo, p. 12:20-24, p. 15:1-7, pp. 22:18-23:15; pp. 57:13- 58:18; Exhibit 3, Kalt Depo, p.21:22-22:4; pp. 38:18-39:21; Exhibits 5-19-5- 24, Jobsite Photographs; Exhibit 6, Quakestrong Emails.

· Quakestrong's construction activities impacted common areas used by residents, including the stairwell where Plaintiff fell. Supporting Evidence: Exhibit 2, Gonzalez Depo, p. 34:4-24; 108:5-8.

· During Quakestrong’s project, there was frequently debris on the stairs due to ongoing construction work by Quakestrong. The debris included sawdust, trash, pieces of wood, and other materials left by Quakestrong workers after they finished their work each day. Supporting Evidence: Exhibit 1, Burnham Depo, p. 78:9-21; 80:13-25; 80:12-22.

· Debris from the Quakestrong project was tracked up the stairs to the apartments. Supporting Evidence: Exhibit 1, Burnham Depo, p. 79:16-80:1.

· When Quakestrong opened the door between the garage and the stairwell, they would put up a plastic divider—but debris would often fall through the plastic. Supporting Evidence: Exhibit 1, Burnham Depo, p. 84:6-15.

· Quakestrong employees had access to and may have used the stairwell during the construction project. Supporting Evidence: Exhibit 2, Gonzalez Depo, p. 99:17:21; Exhibit 3, Kalt Depo, pp. 20:19- 21:13.

· Nails, screws, and other construction debris consistent with Quakestrong's materials were found on the stairs. Supporting Evidence: Exhibit 1, Burnham Depo, pp. 94:23-95:3; Exhibit 2, Gonzalez Depo, pp. 44:22-45:1; Exhibit 5-11, Photograph of nail or screw authenticated at Burns Depo p. 103; Exhibit 5-12, Photograph of nail behind door authenticated at Burns depo p. 104.

· Quakestrong employees used nails and a nail puller while nailing plywood during the project. Supporting Evidence: Exhibit 2, Gonzalez Depo, pp. 57:32-58:10; Exhibit 3, Kalt Depo, p. 41:1-7.

· Quakestrong did not have a formal policy or logs documenting when employees inspect and clean the stairwell for debris resulting from their construction activities. Supporting Evidence: Exhibit 2, Gonzalez Depo, p. 68:20:23; Exhibit 3, Kalt Depo, p. 17:3-9.

· Quakestrong failed to close off the construction area or safely secure construction materials. Supporting Evidence: Exhibit 4, Davis Depo pp. 48:14-49:12.

· Quakestrong never instructed employees to clean debris on the stairs, and the resulting accumulated debris created a foreseeable risk of harm to residents. Supporting Evidence: Burns Decl., ¶ 9; Exhibit 2, Gonzalez Depo, pp. 110:14-111:5.

· Burnham’s fall caused her to sustain serious injuries, including a severed tendon that required surgery. Supporting Evidence: Exhibit 1, Burnham Depo, p.28:14-29:14.

Defendant argues it did not owe Plaintiff a duty of care because there is no relationship between Quakestrong and Plaintiff that requires Quakestrong to inspect, warn, or mitigate dangerous conditions caused by a nail Quakestrong did not use, on the stairs which were outside its area and scope of work, and which were exclusively managed by Beaumont and/or its agents.

“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).) In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

“Section 1714 states a broad rule, but it has limits. We have explained that the law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse. The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged. Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril.” (Brown, supra, 11 Cal.5th at p. 214 [cleaned up].)

Here, Quakestong essentially argues that because it did not perform any of the construction work at issue on the stairs where Plaintiff fell, it did not owe a duty of care to monitor, warn against, or mitigate dangerous conditions on the stairs, and that the duty to maintain the stairs belonged to the owners, property manager, and their agents.

Because of the close physical proximity of the second to last step where Plaintiff tripped on the “nail or screw,” and the garage where the demolition and construction work was being performed, the Court cannot determine as a matter of law based upon the record that Quakestrong did not owe a duty of care. Stated differently, the Court determines that there may be factual issues to be determined by a factfinder before the Court can decide whether or not a duty of care is owed to Plaintiff, or if there is a basis to create an exception to the duty established under Section 1714 under the Rowland [1]factors.[2]

Thus, Quakestrong has not met its initial burdens of production and persuasion that it did not owe a duty of care to Plaintiff.

Regarding breach and causation, however, Quakestrong has presented evidence to establish that it did not breach a duty of care or cause the harm alleged by Plaintiff. In particular, Quakestrong advanced evidence that the nail Plaintiff discovered in the stairwell shortly after the incident was not used in construction it performed at the subject premises, by its workers or otherwise. In turn, Quakestrong contends that the harm alleged by Plaintiff was not proximately caused by any breach on its part.

Therefore, on the issues of breach and causation, the burden has shifted to Plaintiff to produce evidence which raises triable issues of material fact.

In sum, Plaintiff has advanced sufficient evidence to raise triable issues of act that Quakestrong’s conduct during the construction permitted construction debris to be swept, blown, tossed, kicked, or otherwise make its way onto a lower step of the adjacent stairwell and leave a hazard for the residents, such as Plaintiff, to slip on, especially because the door that separated the garage from the stairwell was sometimes left open (as was the case when Plaintiff slipped.) (See, e.g., Ex. B [Plaintiff’s deposition] at pp. 81-82 and Ex. 1 thereto [photograph of stairwell].)

Therefore, Plaintiff has met her burden of production to create a triable issue of material fact as to whether the nail or screw Plaintiff slipped on was part of Quakestrong’s construction debris, thereby breaching its duty of care, and causing harm, to Plaintiff.

Having found Quakestrong failed to meet its initial burdens of production and persuasion that it did not owe Plaintiff a duty of care, the Court denies summary adjudication as to Issue 1.

Having found Quakestrong met its initial burdens of production and persuasion that it did not breach its duty or cause Plaintiff’s injuries, but that Plaintiff met her burden of production to create triable issues of material fact, the Court denies summary adjudication as to Issues 2 and 3. In particular, when viewing the evidence in the light most favorable to, and drawing all reasonable inferences in favor of, Plaintiff, the Court determines that there are triable issues of material fact as to UMFs 5, 7, 9, 13, 17 (in part), 19 (in part) and 21 -26.

Because the Court denies summary adjudication as to all issues, the Court similarly denies summary judgment.

Quakestrong shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] Rowland v. Christian (1968) 69 Cal.2d 108 (hereafter Rowland).

[2] The multifactor test set forth in Rowland was not designed as a freestanding means of establishing duty, but instead as a means for deciding whether to limit a duty derived from other sources. . . . We explained that the basic policy of this state set forth by the Legislature in section 1714 is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. And while there are exceptions to section 1714’s general rule, in the absence of a statutory provision declaring an exception, no such exception should be made unless clearly supported by public policy.” (Brown, supra, 11 Cal.5th at p. 217 [cleaned up].) To wit, “Rowland itself referred to this multifactor test as a guide for determining whether to recognize an “exception” to the general duty of care under section 1714. [T]he Rowland factors serve to determine whether an exception to section 1714’s general duty of reasonable care is warranted, not to determine whether a “new duty” should be created.” (Id. at p. 218 [cleaned up].) In sum, “Rowland is a guide to determining when to create exceptions from duties otherwise established.” (Id. at p. 219.)

“To depart from the general principle that all persons owe a duty of care to avoid injuring others, . . . , involves the balancing of a number of considerations: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Brown, supra, 11 Cal.5th at p. 217 [cleaned up].) And so “[a] court might conclude that duty should not be imposed because, for example, the type of harm the plaintiff suffered was unforeseeable, or because there was no moral blameworthiness associated with the defendant's conduct, notwithstanding the defendant's special relationship to the plaintiff. Put differently, even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases.” (Id. at p. 222.) Here, the Court notes that Quakestrong fails to produce evidence as to each factor for the Court to determine that there is a basis to make an exception to the duty of care under Section 1714. For example, Quakestrong did not present any evidence on the issue of the availability, cost, and prevalence of insurance for the risk involved.

DEPARTMENT	207
HEARING DATE	December 12, 2024
CASE NUMBER	22SMCV02419
MOTION	Motion for Summary Judgment/Summary Adjudication
MOVING PARTY	Defendant Quakestrong
OPPOSING PARTY	Plaintiff Susan Burnham