Judge: Stephen P. Pfahler, Case: 20CHCV00305, Date: 2023-08-18 Tentative Ruling

Case Number: 20CHCV00305    Hearing Date: November 1, 2023    Dept: F49

Dept. F-49

Date: 11-1-23 c/f 7-12-23

Case # 20CHCV00305

Trial Date: Vacated (formerly set for 7-24-23 c/f 1-17-23.)

SUMMARY JUDGMENT

MOVING PARTY: Defendant, San Francisco Townhomes Association

RESPONDING PARTY: Plaintiffs, Adela Mercado, et al.

RELIEF REQUESTED

Motion for Summary Judgment

·         1^st Cause of Action: Negligence

·         3^rd Cause of Action: Negligent Performance of an Undertaking

SUMMARY OF ACTION

Plaintiffs Adela Mercado, et al. are all resident homeowners with the common areas governed by Defendant Defendant, San Francisco Townhouse Association (HOA). On an unspecified date prior to January 10, 2019, Defendant HOA hired Defendant Imperial Roofing, Inc. to conduct certain unspecified repairs on the roofs of the Plaintiffs’ townhomes. On January 10, 2019, a roofer allegedly started a fire on the roof while conducting repairs, which led to the arrival of the fire department. The subsequent efforts of the fire department led to water damage within the units.

Following the submission of water damage claims by certain Plaintiffs to their insurers, the plaintiffs discovered insufficient insurance coverage for said property casualty. Plaintiff Adela Mercado specifically alleges insurance agent Ira Hart, on behalf of Defendant Allstate Insurance, either recommended insufficient insurance coverage and/or failed to obtain the requested policy coverage. Plaintiffs Jorge and IIdeliza Ochoa allege insurance agent Vivian Garcia failed to obtain sufficient coverage with Defendant Farmers Group, Inc. Plaintiff Francisco Munoz alleges improper underinsurance with Defendant Interinsurance Exchange of the Automobile Club via agent David Castaneda.

Plaintiff Hyun Sook Lim, a former owner, joins the action for losses sustained in the sale of the unit caused by the damage.

On May 18, 2020, Plaintiffs filed a complaint for negligence, negligent hiring/retention, negligent entrustment, and negligent performance of an undertaking. On September 16, 2020 and September 18, 2020, Plaintiffs dismissed Ira Hart, and Kookmin Best Insurance Co., Ltd. On September 21, 2020, Plaintiffs filed their first amended complaint for Negligence, Negligent Hiring/Retention, and Negligent Performance of an Undertaking. On October 26, 2020, Defendant Allstate Insurance Company answered the first amended complaint.

On March 3, 2021, the court sustained the demurrer to the first amended complaint. On March 23, 2021, Plaintiffs filed their second amended complaint for Negligence, Negligent Hiring/Retention, and Negligent Performance of an Undertaking. On April 26, 2021, Plaintiffs dismissed Ulloa with prejudice. On May 5, 2021, Imperial Roofing, Inc. answered the second amended complaint. On July 30, 2021, Fire Insurance Exchange answered the second amended complaint.

On August 25, 2021, The court ruled on the demurrer of Automobile Club of Southern California to the second amended complaint as follows: overruled on the first cause of action for Negligence, and sustained the demurrer to the third cause of action for Negligent Performance of an Undertaking without leave to amend.

On November 12, 2021, Plaintiffs dismissed Farmers Group, Inc. and Interinsurance Exchange of the Automobile Club with prejudice. On February 8, 2022, Plaintiffs dismissed third cause of action for Negligent Performance of an Undertaking as to Fire Insurance Exchange (listed as “FIE ONLY”). On September 21, 2022, the court granted the motion for summary adjudication as to Allstate Insurance Company on the first and third causes of action for Negligence and Negligent Performance of an Undertaking.

On January 13, 2023, Anchor Prime Builders filed a cross-complaint for Equitable Indemnity, Contribution, Apportionment of Fault, and Declaratory Relief. On April 14, 2023, Imperial Roofing, Inc. filed a notice of automatic stay based on a Chapter 11 Bankruptcy petition filing.

On May 1, 2023, the court granted the motion for summary judgment brought by Fire Insurance Exchange against Plaintiffs Jorge and Ildeliza Ochoa. On May 9, 2023, Plaintiff dismissed Interinsurance Exchange of the Automobile Club & Automobile Club of Southern California from the complaint with prejudice. On June 30, 2023, the court entered judgment in favor of Fire Insurance Exchange. On August 18, 2023, the court denied Plaintiffs leave to file a third amended complaint.

RULING: Granted.

Request for Judicial Notice: Granted.

Evidentiary Objections to the Declaration of Eileen Keusseyan: Overruled.

Defendant San Francisco Townhomes Association (HOA) moves for summary judgment against plaintiffs, Adela Mercado, Francisco Munoz, Hyun Lim, Jorge Ochoa, and Ildeliza Ochoa. HOA moves for summary judgment on grounds of no breach of any duty in that HOA owed no duty of care to supervise the roof repairs.

At the time of the original hearing, Plaintiffs submitted both an opposition, and an alternative request for a continuance in order to conduct further discovery should the court be inclined to grant the motion for summary judgment. The court declined to address the merits of the motion and instead continued the hearing in order to allow further discovery. The court set a new hearing date with any revised opposition and reply due per statutory deadlines. The court docket shows no new supplemental opposition from Plaintiffs. Defendant’s supplemental reply confirms the lack of any supplemental opposition. The court therefore considers the prior opposition, reply, evidentiary objections, and supplemental reply.

Plaintiffs in opposition relies on a claim of a breach of a special duty of care arising from the CC&Rs. Defendant in both replies maintains the “material facts remain undisputed,” thereby supporting summary judgment on the lack of a basis of duty as a matter of law. Defendant also challenges any showing of causation.

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

The second amended complaint relies on a theory of negligence based on the negligent hiring and supervision of the roofing company, Imperial Roofing, Inc. by San Francisco HOA. [Sec. Amend. Comp., ¶¶ 27-28, 33-35, 44-47.] HOA relies on a lack of any basis of duty based on the no evidence of a hired roofing contractor by the HOA at the time of the fire. HOA denies ever hiring or supervising Imperial Roofing, Inc. [Declaration of Geronimo Perez, Evidence in Support, Ex. 2: Responses to Form Interrogatories from Adela Mercado, numbers 15.1, 50.1-50.6; Ex. 3: Responses to Special Interrogatories of Adela Mercado, numbers 1, 3-6, 20-22, 25; Ex. 4: Responses to Imperial Roofing Form Interrogatories, number 15.1 ; Ex. 5: Responses to Imperial Roofing Request for Admissions, numbers 1, 2, 6, 7, 8, 9, 12, 13, 15, & 16; Ex. 6: Responses to Imperial Roofing Special Interrogatories, numbers 5-8.] Plaintiff Mercado and Defendant Allen Ulloa admit to a lack of knowledge of who was responsible for any work done by Imperial Roofing, Inc. [Perez Decl., Evidence in Support, Ex. 7: Responses of Adela Mercado to HOA Form Interrogatories (set two), number 17.1; Ex. 8: Supplemental Responses to Request for Admissions, numbers 7-9.] HOA also denies any damage to the unit of Mercado as a result of the condition of the roof prior to the fire based on the testimony of Mercado. [Perez Decl., Evidence in Support, Ex. 9: Deposition of Adela Mercado, 227:4-12.]

Given the presented basis of the negligence claims in the operative complaint, the court accepts the evidence as establishing a lack of any duty of care to supervise the roofers or negligent hiring of any roofers, including Imperial Roofing, Inc., in that HOA entered into no contract with any roofer. The court also finds no basis of causation in that Mercado admits to no damages from leakage prior to the alleged Imperial Roofing, Inc. caused fire.

Plaintiffs in opposition present a summary of the law regarding condominium associations, and presents an argument for a basis of claimed duties of maintenance and repair under the governing CC&Rs. The opposition depends entirely and exclusively on an argument for the existence of a special duty of care imposed by the existence of the condominium association itself and governing CC&Rs. The argument essentially states that the presence of Imperial Roofing, Inc. on the roof constitutes an absolute supervision required moment, regardless of whether HOA was actually or constructively aware. Support for the argument exclusively depends on the declaration of attorney Eileen Keusseyan, which includes a copy of the operative complaint, a copy of the CC&Rs, and the deposition of Adela Mercado. The Mercado deposition only offers observation regarding efforts to seek roof repair, but otherwise offers no denial of the deposition testimony and discovery responses. [Ex. B: Mercado Depo., 167:6-168:5.] Neither party offers any evidence regarding responsibility for the presence of Imperial Roofing, Inc. on the roof and conducting repairs (e.g. which homeowner was likely responsible for the hiring without established HOA consent).

HOA in reply reiterates the lack of undisputed facts. HOA denies owing any duty for non-hired, non-supervised workers. HOA also reiterates the lack of any evidence in support of the causation claim. HOA disregards the special duty argument and instead characterizes it as an issue of the Davis-Sterling Act. The supplemental reply contends it remains entitled to summary judgment based on the lack of any new evidence, and otherwise lack of evidence establishing a basis of duty or causation.

“A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person. (Citations.) Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. Accordingly, in Ann M., we recognized as ‘well established’ the proposition that a proprietors “general duty of maintenance, which is owed to tenants and patrons, ... include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235–236.) “[T]he Association is, for all practical purposes, the Project's ‘landlord’” in its duty to manage the common areas under its supervision. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499-500.)

The court accepts the responsibility of the HOA to manage the common areas and the existence of the CC&Rs. Nevertheless, to establish triable issues of material fact regarding the existence of a special duty of care, Plaintiffs depend on a finding that the duty to maintain the premises required immediate awareness, vigilant supervision of any would be trespassers, including an errant roofer, performing repairs without approval from the HOA. The operative complaint itself in fact only depends on a claim of negligent hiring and supervision, and otherwise lacks any claim for a failure to discover the roofers presence in the first place and accordingly direct them off the premises. As addressed in the standard, “‘[t]he complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.’” (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225.)

Even considering the argument for the existence of a special duty, however, the court finds no actual legal argument or evidence establishing the basis of care to watch for unknown roofers (or even an uninvited trespasser) from coming onto the common area roof for performance of unauthorized work without prior knowledge of the governing entity charged with the duty of supervision. (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 712.) Nothing in the opposition indicates any form of prior notice of an unknown roofer starting work. The mere existence of a complaint in no way equates to a concern for unknown contractor work.

The court therefore finds no basis for the existence of a duty to prevent the roofers from entering the common areas due to a foreseeable action of a fellow homeowner hiring a contractor without notice or consent. The court finds no basis for any breach of duty in that Plaintiffs fail to establish any breach of diligence in failing to detect and remove the roofers before the allegedly negligent repairs were undertaken. The court again finds no triable issues of material fact on the issue of causation in that Mercado concedes to the lack of any roof leaks prior to the Imperial Roofing, Inc. actions.

Given HOA shifts the burden and Plaintiffs lack an articulated basis for the claimed relief, or legal and factual support for any and all of the arguments in opposition, the court finds no triable issues of material fact. The motion for summary judgment is granted.

HOA is ordered to submit a judgment. The trial date remains vacated.

Moving Defendant HOA to give notice.