Judge: Steven A. Ellis, Case: 21STCV44247, Date: 2024-06-07 Tentative Ruling
Case Number: 21STCV44247 Hearing Date: June 7, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant 29350 LLC
TENTATIVE
Defendant’s
Motion for Summary Judgment is DENIED.
Background
On December 3, 2021, Plaintiff Lynda
Patrick (“Plaintiff”) filed a Complaint against 29350 LLC (“Defendant”) and
Does 1 through 20 asserting causes of action for negligence and premises
liability. Plaintiff alleges that on December 10, 2020, she slipped and fell on
dangerous stairs on Defendant’s premises.
On January 13, 2022, Defendant filed an
Answer.
On October 25, 2023, Defendant filed a
motion for summary judgment. Plaintiff filed her opposition on May 24, and
Defendant filed its reply on May 31
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.)
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.)
Discussion
Plaintiff
asserts causes of action for negligence and premises liability. Plaintiff
contends that she slipped and fell on a staircase that was “dangerously steep
and slippery.” (Complaint, ¶ 2; see also, e.g., id., ¶¶ 16, 17, 27.)
The basic elements of a cause of
action for negligence and for 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 existence and scope of duty are legal questions
for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v.
Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)
Defendant, in
this motion for summary judgment, make one argument: that as a commercial
landlord, it had no duty to inspect and/or repair the staircase on which
Plaintiff was injured, as it was part of premises leased to a tenant.
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)
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.)
In this matter, Plaintiff slipped while descending
stairs in a building located at 29350 Pacific Coast Highway, fell, and was
injured. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], Nos. 3,
4.)
On the date of the accident, Plaintiff had a
dental appointment at the office of Malibu Dental Group (“Malibu Dental”), a
commercial tenant in the building. (DSUMF, No. 5.) Following her appointment,
Plaintiff walked down the stairs, slipped, and fell. (DSUMF, No. 5.) The stairs
are part of an internal staircase connecting the first and second floors of the
Malibu Dental office space. (DSUMF, No. 6; see also Kingston Decl., Exh. G;
Niles Decl., ¶ 10.)
(The Court notes that there is some dispute with
regard to the date of the accident. The Complaint alleges that it occurred on
December 10, 2020. According to at least some evidence, however, it was on
December 16, 2020. (Kingston Decl., Exh. F.) But no party contends that the dispute
about the precise date of the accident is material for purposes of this
motion.)
David C. Niebergall, D.D.S., one of the principals
of Malibu Dental, originally leased units 3 and 10 in the building on or about
July 1, 1989. (DSUMF, No. 5, 7; Plaintiff’s Statement of Additional Material
Facts [“PSAMF”], No. 1.) As stated by Edwin Niles, who identifies himself as a
“co-owner” of Defendant, the lease “has subsequently been renewed.” (Niles
Decl., ¶¶ 1, 4.)
There is no evidence in the record regarding who
installed the interior stairs. Defendant offers the testimony of Mr. Niles, who
states “on information and belief” that it was Dr. Niebergall. (Niles Decl., ¶
5.)
On or about July 1, 2015, Dr. Niebergall executed
two essentially identical commercial lease agreements for units 3 and 10 in the
building (DSUMF, Nos. 9; PSAMF, No. 2.) The commercial lease agreements (the
“Lease Agreements”) are in evidence. (Niles Decl., Exh. E.)
The Lease Agreements have a number of terms that
pertain to this motion.
The Lease Agreements define the “Premises” as
Units 3 and 10. (Lease Agreements, ¶ 2.)
The initial term of the Lease Agreements is for two
years. (Id., ¶ 3.) The Lease Agreements further provide: “At the conclusion of
this Lease, the Landlord and Tenant, at their option, can continue this
agreement as a month to month Lease, or enter into a new Lease agreement.” (Ibid.)
Paragraph 9(A) of the Lease Agreements sets forth
certain obligations of Defendant as landlord:
“Landlord at its
sole cost and expense shall keep in good condition and repair of the
foundations, exterior walls, and exterior roof of the Premises. Landlord shall
also maintain the unexposed electrical, plumbing and sewage systems including
without limitation, those portions of the system lying outside the Premises:
window frames, gutters and down spouts on the building, all sidewalks,
landscaping, and other improvements that are a part of the Premises or of which
the Premises are a part.”
Paragraph 9(B) of
the Lease Agreements sets forth certain obligations of Dr. Niebergall as
tenant:
“Subject to the
provisions of subsection (A) above … Tenant at Tenant’s sole cost and expense
shall keep in good order, condition and repair the Premises and every part
thereof including, without limitation, all of Tenant’s personal property,
fixtures, signs, store fronts, plate glass, show windows, doors, interior
walls, interior ceiling and lighting facilities.”
In the moving papers, Defendant argues, in essence:
(1) that the accident occurred on an internal staircase that is part of the
leased premises; (2) that Defendant, as landlord, had no duty to Plaintiff (or
any other invitee of the tenant) with regard to any dangerous condition on the internal
staircase (or any other part of the leased premises); and (3) that because it
had no duty to Plaintiff, Defendant is entitled to summary judgment as a matter
of law.
The Court has carefully reviewed all of the
evidence in the record and all of the arguments from both sides. On this
record, the Court concludes, Defendant has not met its burden on summary
judgment of showing that Plaintiff cannot establish the element of duty. This
is so for a number of independent reasons.
First, Defendant has not presented evidence to
show that Dr. Niebergall, rather than Defendant, installed the staircase. Plaintiff
alleges (among other things) that the staircase is dangerously steep, and if it
was designed, built, and installed by Defendant, Defendant had a duty to exercise
ordinary care in the design, building, installation process.
At trial, Plaintiff will have the burden of proof
on each element of her causes of action. But when a defendant moves for summary
judgment, the defendant has an initial burden of showing that the cause of
action has no merit. (See, e.g., Aguilar,
supra, 25 Cal.4th at pp. 850-851.) A cause of action has no merit if “[o]ne
or more of the elements of the cause of action cannot be … established.” (Code
Civ. Proc., § 437c, subd. (o)(1).) “A defendant or cross-defendant 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).) Defendant here has not shown that it
did not design, build, or install the staircase or otherwise show that the element
of duty cannot be established.
Second, and independently, even if the staircase
was designed, built, and installed by the dental office tenant, Defendant, as a
commercial landlord, had a clear obligation under the case law to inspect the
premises to determine whether they were reasonably safe at the start of the
tenancy and each time the lease was renewed. (E.g., Burroughs, supra, 27 Cal.2d at pp. 453-454; Day,
supra, 22 Cal.App.5th at p. 69; Stone, supra, 163 Cal.App.4th at p. 612;
Portillo, supra, 27 Cal.App.4th at p. 1134.)
Here, this means that Defendant had a duty of
inspection in 1989 (at the outset of the tenancy), in 2015 (when the Lease
Agreements were signed), and any other time the lease was renewed (including,
for example, in 2017, when the Lease Agreements expired). Thus, even if Defendant did not design, build, or install
the staircase, Defendant has not shown that the element of duty cannot be
established. (The Court also notes that there is no evidence in this record
that Defendant satisfied its legal duty of inspection, although that relates to
the element of breach, rather than the existence of a duty.)
Third, and also independently, the Lease Agreement
are, at the very least, ambiguous with regard to the issue of duty to maintain
and repair the staircase at issue. Paragraph 9(A) of the Lease Agreements
provides that Defendant, as landlord, had the duty to maintain and repair “improvements that
are a part of the Premises or of which the Premises are a part.” Whether the
term “improvements” in Paragraph 9(A) includes the internal staircase at issue is
a disputed issue which may require the introduction of parol evidence at trial.
For these reasons, the Court must deny Defendant’s
motion. On this record, there are disputed issues of material fact.
Finally, the Court notes that in its reply, Defendant
switches gears and makes a series of different arguments in support of its
motion, including that there is no evidence that the stairs were in fact in a
dangerous condition on the day of the accident. But that argument was not made
in the moving papers, and the Court cannot grant summary judgment based upon
arguments (or evidence) presented for the first time in a reply filed on week
before the hearing, rather than with the moving papers filed and served at
least 75 days in advance of the hearing.
Conclusion
The
Court DENIES Defendant’s Motion for Summary Judgment.
Moving
party is ordered to give notice.