Judge: Steven A. Ellis, Case: 19STCV40102, Date: 2023-10-19 Tentative Ruling

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Case Number: 19STCV40102    Hearing Date: February 22, 2024    Dept: 29

Motion for Summary Judgment filed by Defendants Har-South Marengo LLC, Har-South Marengo Manager LLC, and Har-South Marengo Avenue, LLC.

Tentative

The motion is granted.

Background

This case arises out of an alleged turnstile accident on November 13. 2017 at a building located at 101 South Marengo Avenue in Pasadena, California. On November 7, 2019, Plaintiff Aaron Espinoza (“Plaintiff”) filed a Complaint against Defendants Har-South Marengo LLC, Har-South Marengo Manager LLC, and Does 1 through 10, asserting causes of action for premises liability and general negligence. On July 16, 2020, Plaintiff amended the complaint to name Har-South Marengo Avenue, LLC as Doe 6.

On August 13, 2020, Plaintiff filed a First Amended Complaint (the “FAC”) against the same defendants, asserting the same two causes of action. 

On October 26, 2020, Defendants Har-South Marengo LLC, Har-South Marengo Manager, LLC, and Har-South Marengo Avenue, LLC filed their Answer.

On April 6, 2023, Defendants Har-South Marengo Avenue, LLC and Har-South Marengo Manager, LLC (collectively, “Defendants”) filed this motion for summary judgment, along with their supporting evidence. The motion was originally scheduled for hearing on July 16, 2024, and was subsequently moved several times, before ultimately being set for February 22, 2024.

On February 7, 2024, Plaintiff filed his opposition, supporting evidence, and objections to Defendants’ evidence. On February 16, Defendants filed their reply and objections to Plaintiff’s evidence.

Legal Standard

“The purpose of the law of summary judgment 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. Atlantic 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Evidentiary Objections

Each party objects to some of the evidence presented by the other side. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)

Plaintiff objects to paragraph 7 of the Declaration of Douglas Frye. This objection is OVERRULED. To the extent that Plaintiff is objecting to the witness’s characterization or description of documentary evidence, the Court is basing its ruling on the evidence, not a witness’s description or characterization of it.

Defendants object to four passages of the Declaration of Neekta Izadian. The objection to paragraph 7 is SUSTAINED (improper conclusion). The objection to paragraph 8(i) and Exhibit I is SUSTAINED (lacks foundation). The other objections are OVERRULED.

Discussion

In the FAC, Plaintiff asserts two causes of action against Defendants, for general negligence and premises liability. The basic elements of the causes of action for negligence and premises liability are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

The general rule governing duty is set forth in Civil Code section 1714: “Everyone 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, subd. (a).) This establishes what the California Supreme Court has described as the “default rule” that every person has a legal duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their [customers’] use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

“It is well established in California that although a [property] owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition.” (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega, supra, 26 Cal.4th at p. 1206.) “[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Id. at p. 1207.) “The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (Ibid)

“Because the owner is not the insurer of the visitor’s personal safety …, the owner’s actual or constructive knowledge of the dangerous condition is [in many cases] a key to establishing its liability.” (Ortega, supra, 26 Cal.4th at p. 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) “Most Courts of Appeal hold that a defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Id. at p. 1207.)

Courts in California have developed special rules that apply where, as here, a plaintiff seeks to hold a property owner/landlord liable for a dangerous condition on leased premises:

“All landowners, including landlords, must use reasonable care to protect people who come onto their property. For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later. … Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.”

(Stone v. Center Trust Retail Properties (2008) 163 Cal.App.4th 608, 612 [citations omitted]; see also, e.g., Day v. Lupo Vine St., L.P. (2018) 22 Cal.App.5th 62, 69; Garcia v. Holt (2015) 242 Cal.App.4th 600, 604 [referring to this principle as a “bright line” rule]; Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 [same]; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510 [“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”].)

The duty to “see that the premises are reasonable safe” applies at the outset of a tenancy and also at the time of an “agreement to renew a lease or relet the premises.” (Burroughs v. Ben’s Auto Park (1945) 27 Cal.2d 449, 453-454; see also Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.) At least in part, that is because on renewal (in contrast to during the lease) the landlord has the right to enter the premises and can, without disrupting the tenant’s occupancy, inspect the premises and remedy any dangerous condition that is present. (Burroughs, supra, 27 Cal.2d at p. 454; Portillo, supra, 27 Cal.App.4th at p. 1134.)

But there is a distinction in the law between a renewal of a lease and an extension of a lease. (Burroughs, supra, 27 Cal.2d at p. 454; In re Marriage of Joaquin (1987) 193 Cal.App.3d 1529, 1534.) A renewal “creates a new and distinct tenancy.” (Burroughs, supra, 27 Cal.2d at p. 454; see also Marriage of Joaquin, 193 Cal.App.3d at p. 1534.) An extension, in contrast, does not; it is merely a “stretching or spreading out of a former term.” (Burroughs, supra, 27 Cal.2d at p. 454; Marriage of Joaquin, 193 Cal.App.3d at p. 1534.) The distinction between a renewal and an extension is determined by the substance of the arrangement, not the words used by the parties. (E,g, Burroughs, supra, 27 Cal.2d at pp. 454-455 [“extension” treated as renewal]; Leonhardi-Smith, Inc. v. Cameron (1980) 108 Cal.App.3d 42, 47 [“renewal” treated as extension].)

In this matter, Defendants move for summary judgment on the sole ground that Plaintiffs cannot, as a matter of law, establish that Defendants had the requisite knowledge of the allegedly dangerous condition.

Plaintiff alleges that he suffered severe injuries on November 13, 2017, when a full-height security turnstile improperly locked, causing Plaintiff to lose his balance and causing Plaintiff’s arm to become caught between the turnstile bars. (Defendants’ Statement of Undisputed Material Facts [“DSUMF”], No. 1; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 1.) The turnstile was located in the parking garage of a commercial office building owned by Defendant Har-South Marengo Avenue, LLC. (DSUMF, No. 4; PSAMF, Nos. 2-3.) Defendant Har-South Marengo Manager, LLC is the managing member of Defendant Har-South Marengo Avenue, LLC. (DSUMF, No. 4.) At the time of the accident, the office building was leased to Bank of America, N.A. (“BANA”), under a lease agreement dated November 1, 1972 (the “Lease”). (DSUMF, No. 3.) Plaintiff was a BANA employee. (DSUMF, No. 7; PSAMF, No. 7.)

The Lease obligated BANA to maintain the premises at its “sole risk, cost and expense.” (Frye Decl., Exh. C., ¶ 12.5.) BANA was also required to keep the premises “in good and clean order and condition” and to make “all necessary or appropriate repairs, replacements, renewals and betterments thereof, interior and exterior, structural and nonstructural, ordinary and extraordinary, and foreseen and unforeseen.” (Id., ¶ 12.6)

The Lease is for an initial term of 30 years. (Id., ¶ 4.1) The Lease also grants BANA three options to extend the term of the Lease for five years each. (Id., ¶ 29.1) During such extension periods, all terms of the Lease “shall remain in full force and effect.” (Id., ¶ 29.3)

BANA exercised its option to extend the term of the Lease for five years in 2009 and again for an additional five years in 2014. (Izadian Decl., Exh. F.) In the written documentation of the extension options, BANA states that it is exercising its option as of right, and that Defendants’ acknowledgement “is not necessary for our exercise to be effective.” (Ibid.) (There was apparently also an initial option exercised in 2004, as BANA refers to the option exercised in 2009 as “the second option” and the option exercised in 2014 as the “one remaining option.”)

At the time Defendants acquired the properties, as well as at the time of the lease extensions, Defendants did not inspect the property generally or the turnstile specifically. (Id., Exh. J [Rosenfeld Depo.], at 23:7-12, 25:11-14, 26:5-14, 33:16-24; Exh. K [Bookstein Depo.], at 19:24-20:5; Exh. L [Responses to Special Interrogatories], at 11:17-12:6, 16:10-17:6.)

There were no documented personal injury claims involving the turnstile prior to the accident at issue in this lawsuit. (DSUMF, No. 18.) Prior to the accident, Defendants were not informed by anyone of any defect or dangerous condition involving the turnstile. (DSUMF, No. 20.) BANA’s property management company, however, received a complaint from a BANA employee in October 2016 that the turnstile at issue “[o]ftentimes … gets stuck” and people “are stranded trying to figure that thing out.” (Bassir Reply Decl., Exh. 1 [De La Garza Depo.], at 52:2-16, 53:5-16.) A representative of the property management company and BANA’s head of security inspected the turnstile at that time and determined that there was “no true issue with the turnstile.” (Id., at 53:22-55:6, 58:5-9.)

On this factual record, the Court must GRANT Defendants’ motion for summary judgment. It is undisputed that Defendants were the owners and landlords of the property at issue, and that at all relevant times BANA was the tenant in possession. (DSUMF, Nos. 2-4.) Defendants had no actual knowledge of any dangerous condition associated with the turnstile. (DSUMF, Nos. 18, 20.) As the landlord of a lease that commenced in the 1970s, Defendants had no duty to inspect the property for dangerous conditions that might cause injuries to BANA’s employees or other third parties entering the property. Absent actual knowledge of a dangerous condition, Defendants cannot be held liable for such injuries to third parties. (Stone, supra, 163 Cal.App.4th at p. 612; see also other authorities cited above.)

BANA’s exercise of its option to extend the lease in 2009 and again in 2014 does not change this result. The Court has reviewed the evidence and concludes that these options were, in both word and substance, true extensions of the lease, not renewals or new lease agreements. Accordingly, these extensions did not give rise to a duty of Defendants to inspect the property.

Defendants have met their initial burden on summary judgment of showing that there is no triable issue as to their actual knowledge, and therefore no triable issue on the element of duty. That shifts the burden to Plaintiff to show that a triable issue exists; Plaintiff has not done so.

Accordingly, the Court GRANTS Defendants’ motion for summary judgment.

Conclusion

The Court GRANTS the motion for summary judgment of Defendants Har-South Marengo Avenue, LLC and Har-South Marengo Manager, LLC.

The Court notes that Defendant Har-South Marengo LLC did not move for summary judgment. The claims against this defendant (and any other defendant) are not adjudicated in this ruling.

Moving parties are ordered to give notice.