Judge Stephen Morgan, Case 20AVCV00127 2023-05-16 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

This is a survival action premised in negligence. Plaintiffs The Estate of Bradley St. John, by and through its successor in interest Rosa St. John; and Rosa St. John, an individual (“Plaintiffs”), allege that on or about March 07, 2019, Bradley Charles St. John (“Decedent”) was operating a 2017 motorcycle and traveling eastbound on Avenue T in Los Angeles County approaching the intersection of 94th Street East when Defendants Richard Mountjoy (“Richard”[1]), Earline Mountjoy (“Earline”), Gary L. Schaeffler (“Gary”), and Judy L. Schaeffler (“Judy” or, with Gary, “the Schaefflers”)[2] allowed one of their pigs to escape off their property and run into the road. Decedent allegedly struck the pig, sustaining injuries, and was then struck by Defendant Oscar Anibal Amaya’s (“Amaya”) vehicle. Decedent passed due to the injuries sustained from this incident.

On April 27, 2020, Amaya filed a Cross-Complaint against Richard, Earline, Gary, and Judy alleging three (3) causes of action for: (1) Declaratory Relief – Implied Whole Indemnity, (2) Declaratory Relief – Implied Partial Indemnity, and (3) Declaratory Relief – Equitable Apportionment.

On September 29, 2020, Gary and Judy filed a Cross-Complaint against Amaya, Michael Mountjoy (“Michael”), and Suzanne Mountjoy (“Suzanne”) alleging causes of action for: (1) Declaratory Relief – Implied Indemnity, (2) Total Equitable Indemnity, (3) Comparative Indemnity/Contribution, and (4) Declaratory Relief.

On October 07, 2020, Amaya amended the fictitious/incorrect names of Roe 1 to Michael and Roe 2 to Suzanne.

On November 06, 2020, Plaintiffs amended the fictitious/incorrect names of Doe 1 to Michael and Doe 2 to Suzanne.

On May 03, 2021, Plaintiffs amended the fictitious/incorrect name of Doe 3 to The Schaeffler Revocable Living Trust Dated April 14, 2020.

The operative pleading is the First Amended Complaint (“FAC”), filed July 07, 2021, alleging three (3) causes of action for: (1) Negligence against Richard, Earline, Gary, and Judy; (2) Negligence against Amaya; and (3) Survival Action against Defendants.

On July 20, 2021, Plaintiffs amended the fictitious/incorrect names of Doe 99 to Bradley St. John, Jr. (“Bradley”), and Doe 100 to Ashley St. John (“Ashley”). Bradley and Ashley are nominal defendants.

On July 27, 2021, Plaintiffs amended the fictitious/incorrect name of Doe 4 to Gary Schaeffler, as trustee of The Schaeffler Revocable Living Trust Dated April 14, 2020.

On July 28, 2021, Plaintiffs amended the fictitious/incorrect name of Doe 5 to Judy Schaeffler, as trustee of The Schaeffler Revocable Living Trust Dated April 14, 2020.

On August 19, 2022, the Schaefflers filed their Motion for Summary Judgment, or in the alternative, Summary Adjudication.

On October 11, 2022, Gary Schaeffler, as trustee of The Schaeffler Revocable Living Trust Dated April 14, 2020 and Judy Schaeffler, as trustee of The Schaeffler Revocable Living Trust Dated April 14, 2020 were dismissed.

On April 28, 2023, Plaintiffs filed their Reply. After the Reply had been filed, the Schaefflers filed their Opposition. “The other parties shall have 10 days after [service of briefs and accompanying documents in support of the motion for new trial] within which to serve upon the moving party and file any opposing briefs and accompanying documents, including counter-affidavits.” (Cal. Code Civ. Proc. § 659(a).) Ten days from April 07, 2023 is April 17, 2023. The Schaefflers’ Opposition is untimely. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) “Because new trial motions are creatures of statute, ‘ “the procedural steps … for making and determining such a motion are mandatory and must be strictly followed [citations].” ’ (Linhart v. Nelson (1976) 18 Cal.3d 641, 644 [134 Cal. Rptr. 813, 557 P.2d 104], quoting Mercer v. Perez (1968) 68 Cal.2d 104, 118 [65 Cal. Rptr. 315, 436 P.2d 315].)” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193.) Accordingly, the Court declines to consider the late filed Opposition as it does not follow the timeline explicitly set by statute.

On May 01, 2023, Plaintiffs filed a Further Reply and Request to Strike Defendants Improperly Filed Opposition to Plaintiffs’ Motion for New Trial.

Standard for Motion for New Trial – “A motion for new trial is a creature of statute; . . .” (Neal v. Montgomery Elevator Co.¿(1992) 7 Cal. App. 4th 1194, 1198.) A movant must satisfy Cal. Code Civ. Proc. §§ 657 and 659. Under Cal. Code Civ. Proc. § 657, a motion for new trial may be granted if there is any:¿

[¶] 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.¿¿¿

When ruling on an application for a new trial, the court sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) The court, therefore, has broad discretion to order new trials, limited only by the obligation to state its reasons for granting a new trial and the existence of substantial evidence in the record to support those reasons. (Ibid.) In assessing the need for a new trial, the court must rely on its view of the overall record, taking into account such factors, among others, as the nature and seriousness of the alleged misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211.)¿

The party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both, either (1) “after a decision is rendered and before the entry of judgment”; (2) “within 15 days of the date of mailing notice of entry of judgment by the clerk of the court . . . , or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest”; or (3) if another party files the first motion for new trial, “each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.” (Cal. Code Civ. Proc. § 659.) These time limits are jurisdictional and cannot extended or waived by stipulation nor court order. (Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469 [while trial judge characterized order as one “granting reconsideration,” ruling effectively granted new trial and was untimely].)¿

A decision granting a motion for summary judgment may be challenged by a motion for new trial. (Scott v. Farrar (1983) 139 Cal. App. 3d 462, 467 [holding a decision granting a motion for summary judgment may be challenged by a motion for new trial].)

Application – “A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict[.]” (Cal. Code Civ. Proc. 663(a).)

This motion will be made for all the causes permitted by CCP § 657, including the following:

1. Irregularity in the proceedings of the court, jury, or Defendants, and order(s) of the court

or abuse of discretion by which Plaintiff was prevented from having a fair trial (CCP §

2. Accident or surprise, which ordinary prudence could not have guarded against (CCP §

3. Newly discovered evidence, which Plaintiff could not, with reasonable diligence, have

5. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or

The notice does not provide the particulars in which the legal basis for the decision is not consistent with or supported by the facts.

Case law has long held that a notice of motion's technical noncompliance may be excused if it incorporates papers or other documents attached thereto that set forth the grounds for the motion. Importantly, in the context of motions for new trial, courts have held that the omission in a notice of motion of a particular ground will be disregarded if the supporting or accompanying papers set forth the grounds for the motion. (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 19-20 [although notice of motion specified wrong ground for new trial, plaintiff timely apprised defendant of correct ground for new trial in timely filed memorandum of points and authorities]; Girch v. Cal-Union Stores, Inc. (1968) 268 Cal.App.2d 541, 548-549, 74 Cal. Rptr. 125 [same]; McFarland v. Kelly (1963) 220 Cal.App.2d 585, 589 [same]; Galindo v. Partenreederei M.S. Parma (1974) 43 Cal.App.3d 294, 301-302 [although notice of motion specified wrong grounds for new trial, plaintiff timely-filed declaration apprising defendant of correct ground for new trial].) In the context of a trial court's authority to grant a motion for new trial, Witkin explains this case law, stating: “Generally, a motion for new trial can be granted only on a ground specified in the notice of intention to move. [Citation.] However, if the notice omits a ground, it may still be considered by the court if it is asserted in another document, such as the memorandum of points and authorities. [Citation.] For the court to grant the motion, the correct ground must be supplied before the filing period for the notice of intention to move has expired (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 50, pp. 636-637.)

Applying this standard of noncompliance to the particulars in which the legal basis for the decision is not consistent with or supported by the facts, the Court turns to the memorandum of points and authorities.

· There is no discussion of irregularity in the proceedings of the court, jury, r adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial (Cal. Code Civ. Proc. §657(1);

· There is no discussion regarding accident or surprise, which ordinary prudence could not have guarded against (id. at (3));

· No newly discovered evidence or material for the party making the application is presented (id. at (4)); and

It appears from the memorandum of points and authorities, which includes citations to the Court’s Statement of Decision, that Plaintiffs are moving under Cal. Code Civ. Proc. § 657(6)-(7) insufficiency of the evidence and error in law. As to the particulars, it appears that Plaintiffs believe that the Court rejected Plaintiffs’ claim that, as the property owners, the Schaefflers owed a nondelegable duty to safely maintain the property or that the Mounjoys were acting as the Schaefflers’ agents. That is, Plaintiffs believe that the Schaefflers could (and did) inspect the perimeter fence without disturbing the Mountjoys’ quiet enjoyment of the property and, because of this, the landowner cannot rely on its actual ignorance to avoid liability. Plaintiffs also argue that that a landlord has the unfettered right to inspect the property upon renewal of the lease, so the Schaefflers should have inspected the animal pens at the time they acquired the property or when the lease was renewed.

First, Plaintiffs argue that the Schaefflers failed to establish that they owed no duty as to the condition of the perimeter fence, which they acknowledged inspecting and which they could inspect and repair without disturbing the quiet enjoyment of their tenants. Plaintiffs cite to Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325 (“Swanberg”) to support this argument. Plaintiff highlights that the Court discussed Swanberg in relation to the animal pens and not the perimeter fence. Plaintiff presents, while the Schaefflers conceded that they would inspect the fencing a few times each year, the inspection was not reasonable as “[a] reasonable inspection should look for both the obvious signs of damage and disrepair, of which there were many, and the somewhat less-obvious signs of weakness or potential animal escape, which would have been revealed upon removing the obstructions.” (Motion 6:20-24.) Plaintiffs further argue that that another reason exists to impose a duty of care on the Schaefflers – that the Schaefflers undertook to inspect the fence and so they have a duty to do so reasonably. Plainitffs state that they submitted evidence that the dangerous condition of the property was obvious to the naked eye.

“[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord's duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. ‘“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.” [¶] Limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.’”

Here, the Schaefflers relinquished possessory interest of their land to the Mountjoys. Actual knowledge of a dangerous condition (e.g. a hole in the fence that a pig could have escaped from) must be shown. The Schaefflers did not have actual knowledge of a dangerous condition. Thus, no duty between the Schaefflers and Decedent exists.

The Schaefflers have met their burden by presenting facts to negate an essential element, or to establish a defense. The burden then shifts to Plaintiffs to show a triable issue of material fact or defense exists.¿¿

Next, Plaintiffs’ cited case for nondelegable duty of care to prevent livestock from escaping is Davert v. Larson (1985) 163 Cal.App.3d 407 (“Davert”). Davert clearly states that “The law is well settled that an owner or occupier of land is required to exercise ordinary care in the management of his property and the breach of such duty constitutes actionable negligence. [Citations.] . . . A landowner or possessor owes a duty of care to persons who come on his property as well as to persons off the property for injuries due to the landowner's lack of due care in the management of his property.” (Davert, supra, 163 Cal.App.3d at 410 [emphasis added].) Plaintiffs neglect to include that a possessor or occupier of a land, not only an owner, can be liable. Davert also states that “[g]enerally, the duty owned by a landowner is nondelegable.” (Ibid. [internal citations omitted].) Davert cites to the following cases which state:

· “The Uccello court emphasized that actual, as opposed to constructive, knowledge was a requisite for finding the landlord liable. The reason for the distinction being rooted to the historical doctrine that a landlord who leases his property, surrenders virtual control of his land to the lessee, absent an agreement to the contrary. (Uccello, supra, at pp. 510-511; see also com. a to Rest., Torts, § 355.) Because said loss of control includes the right of a landlord to reenter the property without the lessee's permission, short of abridging the latter's right of quiet enjoyment, amongst other privacy law considerations, the landlord is in no position to reliably determine whether or not a tenant/lessee is harboring a dangerous animal.” (Swanberg v. O'Mectin (1984) 157 Cal.App.3d 325 (“Swanberg”).)

· “The general rule is set forth in the Restatement of the Law of Torts, Negligence, page 1138, section 422, as follows: ‘The duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable. If an independent contractor, no matter how carefully selected, is employed to perform it, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition, irrespective of whether the contractor's negligence lies in his incompetence, carelessness, inattention or delay.’ ” (Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256 (“Brown”.)

In Swanberg, the court distinguished the case as the portion of the property was easily viewed from the outside. (Swanberg, supra, 157 Cal. App. 3d at 331.) This distinction is inapplicable to this case as Plaintiffs had to conduct a property inspection in order to see the alleged substandard condition of the animal pens. (See Decl. Varner ¶ 19.) Brown is inapposite as it does not concern a landlord-tenant case, but instead involves injuries from an elevator fall in an apartment building which had a contract with co-defendant for weekly inspection of the elevator.

Plaintiffs own cited case shows that actual knowledge on the part of a landlord who relinquished control of his or her property is needed. Plaintiffs do not discuss this exception to the general rule.

While Plaintiffs argue that the Mountjoys are agents for the Schaefflers as the Mountjoys were to maintain the property, they neglect to provide a discussion as to how the agency affects the landlord-tenant relationship or how the agency relationship negates the duties that the Mountjoys had as the Schaeffler’s no longer controlled the property.

While the Court did not address Swanberg in relation to the perimeter fence, the gravamen of the Court’s analysis was that the Schaeffler’s did not have actual knowledge of the dangerous condition. The Court took into consideration that the Schaefflers, in their depositions, stated that the Mountjoys were to contact them if the property needed repair and didn’t; Gary “always made sure that everything was maintained;” and there had been no change in the fence (See SOD at p. 6.)

· The declaration of Danielle Varner (“Varner”), an expert with a Bachelor of Science degree in Dairy Science and work experience as a herd manager, who stated the following about duty:

o There are multiple possible escape routes from the property owned by the Schaefflers (9330 East Avenue T) for a pig to get out of its enclosure and traverse onto the public highway. The condition of the pig enclosure indicates burrowing, and the gate that was likely making up part of the enclosure has bent and broken posts that could have been caused by a pig ramming through. The perimeter fence also has indications of burrowing. This opinion is substantiated below. (Decl. Varner ¶ 7(b))

o The conduct of Defendants the Schaefflers was below the standard of care, which was a substantial factor in causing the collision with Decedent by allowing the pig to get out of the property and stray onto the public roadway. In overview, the Schaefflers are the owners of the 9330 E. Avenue T property, a property they knew included pig enclosures at the time they became owners. The Schaefflers mandated that the Mountjoys upkeep and maintain the 9330 E. Avenue T property safely as a condition of their residency on the property. However, the 9330 Avenue T property was not upkept and was not maintained in a safe condition for a property with livestock enclosures, particularly pigs. Further, the standard of care for a landowner whose property includes livestock enclosures requires the landowner to conduct reasonable inspections of both perimeter fences and livestock enclosures to ensure they are in a condition that prevents livestock escaping their enclosure and escaping the property in general. The Schaefflers confirmed that they would conduct their own inspections. A reasonable inspection would have revealed multiple points of poor and unsafe conditions in the pig enclosure and the perimeter fence such that a pig could have easily escaped. This opinion is substantiated below. (Id. at 7(c).)

o Opinion 2: The Pig Enclosure at 9330 East Avenue T Fell Below the Standard of Care and Was Easily Escapable. (Id. at subsection D.)

o Opinion 3: The Perimeter Fence of 9330 East Avenue T Fell Below the Standard of Care, with a focus on debris by the perimeter fence, that the debris were barriers to burrowing, and the sliding gate that is supposedly the only way in and out of the property without digging was not secure and a pig easily could have escaped through the gate. (Id. at subdivision E.)

Varner opines that (1) a cursory inspection would have revealed the defective nature of the animal pens and the perimeter fence, and (2) the claim that the Schaefflers did not see any issue with the perimeter fence and the animal pens, “the standard of care would have required them to take a few simple steps to confirm the enclosure and the perimeter were in working order.” (Id. at ¶ 40.)

The Court focused on the perimeter fence as the animal pens required intrusion onto the property. Plaintiff’s current argument is that a reasonable inspection would have required moving the debris. It is clear that this is based on Varner’s declaration. “ ‘ “[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert's opinion based on assumptions of fact without evidentiary support … or on speculative or conjectural factors … has no evidentiary value … and may be excluded from evidence. [Citations.]” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [8 Cal. Rptr. 3d 363] … ; see also Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 [11 Cal. Rptr. 3d 653] [“expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural …”].) . . . (Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390, 404 [94 Cal. Rptr. 3d 456].)” (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal. App. 4th 555, 577.) Varner did not provide a basis as to why a reasonable inspection would require removing debris. This is also in contrast to Swanberg, which Plaintiffs are arguing applies, as it would have required Defendants to reenter the property. (See Swanberg, supra, 157 Cal.App.3d 325 [generally].) The Court also notes that Swanberg clearly cites to a holding about shrubbery – “[f]urther, a landowner may face liability for injury to another, incurred outside of the former's property (on an adjacent street), if the injury is found to be caused by a traffic obstruction in the form of shrubbery growing from the property. ( Wisher v. Fowler (1970) 7 Cal.App.3d 225 [86 Cal.Rptr. 582].)” (Id. at 330.) It is also clearly written that the shrubbery constituted a violation of a municipal ordinance. (Id. at 332.)

Aside from the inapplicability of Uccello, it would appear that the O'Mectins' duty to care for their property, so as to reasonably avoid injury to others, outside the perimeters of their land, was nondelegable.

At the outset, the parties pose a seeming incongruity in the law, as applied to the respective duties of a landlord and tenant, where maintenance of leasehold property is required by statute. On the one hand, it is said that "Since the property owner is initially under the duty to comply with all laws and orders, he, as lessor, remains subject to that duty unless it is assumed by the lessee ( Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 672 [75 Cal.Rptr. 889, 451 P.2d 721]; italics added.) On the other hand, our Supreme Court has held that the owner of land who constructs a driveway adjacent to her property and who is thus duty bound by law to maintain same, ". . . could not relieve herself of such duty either by leasing the same . . . to her [tenant] or by contracting with him by the terms of said lease for the keeping of said premises and said driveway in a proper state of repair." ( Granucci v. Claasen (1928) 204 Cal. 509, 512 [269 P. 437, 59 A.L.R. 435].)

The difference in the two holdings may be reconciled by characterizing the holding in Glenn R. Sewell Sheet Metal, Inc. v. Loverdi, supra, 70 Cal.2d 666, as the rule and the Granucci holding as the exception. As such, Granucci would appear to fall within one or two of the five exceptions delineated in Ucello v. Laudenslayer, supra, 44 Cal.App.3d at page 511, namely, ". . . where there is a nuisance existing on the property at the time the lease is made or renewed [citation], [or] when a safety law has been violated [citation], . . ."

Thus, whether a duty in nondelegable depends on if it is an exception as set out in Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 (“Uccello”).

Historically, the 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. ( Schwartz v. McGraw-Edison Co., 14 Cal.App.3d 767 [92 Cal.Rptr. 776] 30 Cal.Jur.2d, Landlord and Tenant, § 159, pp. 307-309; Rest., Torts, § 355 et seq.; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 615, pp. 2895-2896.)

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. (See com. (a) to Rest., Torts, § 355.) 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." (Prosser, Law of Torts (4th ed.) p. 400.)

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 (Scholey v. Steele, 59 Cal.App.2d 402, 405 [138 P.2d 733]; Minolletti v. Sabini, 27 Cal.App.3d 321, 324 [103 Cal.Rptr. 528]), 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 ( Shotwell v. Bloom, 60 Cal.App.2d 303, 309-310 [140 P.2d 728]), where there is a nuisance existing on the property at the time the lease is made or renewed ( Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 453-454 [164 P.2d 897]), when a safety law has been violated ( Grant v. Hipscher, 257 Cal.App.2d 375, 382-383 [64 Cal.Rptr. 892]), 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 ( Johnston v. De La Guerra Properties, Inc., 28 Cal.2d 394, 400 [170 P.2d 5]).

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. (Cf. Brennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796 [111 Cal.Rptr. 122].)

Plaintiffs did not argue that the Schaefflers’ care of the fence constituted an exception under Uccello. Instead, Plaintiffs directed the Court to Davert v. Larson (1985) 163 Cal.App.3d 407 (“Davert”) The Plaintiffs in Davert alleged liability on the part of defendant on two theories: (1) defendant, in his capacity as deputy sheriff of the County of Siskiyou, observed the gap or hole in the fence adjacent to the road through which the horse was alleged to have escaped and failed to take precautionary measures and (2) defendant owned a 1/2500th undivided interest in the property from which the horse escaped. The issue of actual knowledge was alleged, distinguishing Davert from this action. The Court also notes that Davert cites to Swanberg for its holding that “[g]enerally, the duty owed by a landowner is nondelegable.” (Davert, supra, 153 Cal.App.3d at 410.)

While the Court did not address Swanberg in regard to the perimeter fence in the Motion for Summary Judgment, it appears no error in law was committed. (See Thompson v. Guyer-Hays (1962) 207 Cal.App.2d 366, 375 [Where there is substantial evidence to support the judgment, the granting of a new trial on the ground that it was "against law" is not authorized].)

The Court turns to Plaintiffs’ next argument which appears to be whether the animal enclosures were defective when the property was first leased or when the lease was renewed or assigned. (Motion 7:21-28.)

The Court does not believe this issue to be within the scope of the pleadings. Specifically, there is no alleged date as to when either the perimeter fence or animal enclosures became a hazard nor an alleged date as to when the Schaefflers’ had first leased the property or when the lease was renewed or assigned to the Mountjoys. The only dates provided are contained within depositions attached as exhibits to the Motion for Summary Judgment. From these depositions, the Court can gather that the property became owned by the Schaefflers in 2015 (Deposition Gary 22:21-22) and that the Mountjoys were already on the property as Michael Mountjoy was alive when the Mountjoys moved onto the premises (id. at 23:16-18.)

Nothing is presented by Plaintiffs as to when the lease was renewed, or if it was ever renewed, to allow the Schaefflers to enter the property to conduct an inspection. Further, Plaintifffs do not present any case law or statute that shows that the Schafflers could enter the property upon transfer of title.

Because we are unaware of any specific date upon which the subject shrubbery first became an alleged traffic hazard, we choose not to consider whether the hazard existed at the time defendants last rented their property, a point representing defendants' last "unequivocal" opportunity to carefully inspect same. (See Burroughs v. Ben's Auto Park, Inc. (1945) 27 Cal.2d 449, 453-454 [164 P.2d 897].) However, were it to be established that defendants should have anticipated that plant growth from their property could or would pose a potentially serious danger to travelers off the land, in violation of a municipal ordinance prohibiting said overgrowth (Los Angeles Mun. Code, § 62.200), the act of renting the premises and putting another party in possession does not relieve defendants of their duty nor would it immunize them from liability. (See Grant v. Hipsher (1967) 257 Cal.App.2d 375, 383 [64 Cal.Rptr. 892]; see also Stanford v. Bailey Incorporated (1955) 132 Cal.App.2d 725, 729-730 [282 P.2d 992].)

Likewise, the Court does not consider when the perimeter fence and animal enclosures were defective at the time the Schaefflers came into ownership of the property as there is no specific date alleged as to when these conditions became defective nor is there a date representing the Schaefflers’ “last ‘unequivocal’ opportunity to carefully inspect” the property. (Ibid.)

Plaintiffs the Estate of Bradley Charles St. John, by and through its successor in interest, Rosa St. John, and Rosa St. John’s Motion for New Trial is DENIED.

[1] Because the parties are composed of individuals that share the same surname, the Court addresses those individuals by their first names for the purpose of clarity. No disrespect is meant.

[2] Hereinafter, Gary and Judy will be addressed as “The Schaefflers” when discussed together. Likewise, Richard, Earline, Michael, and Suzanne will be addressed as “The Mountjoys” when discussed together.