Judge: Steven A. Ellis, Case: 22STCV22059, Date: 2025-05-09 Tentative Ruling

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Case Number: 22STCV22059    Hearing Date: May 9, 2025    Dept: 29

Yeghiazaryan v. Cypress Senior Living Investors, LP
22STCV22059
Motion for Summary Judgment or, in the Alternative, for Summary Adjudication filed by Defendant Cypress Senior Living Investors LP.

Tentative

The motion is denied.

Background

On July 7, 2022, Samvel Yeghiazaryan (“Plaintiff”) filed a complaint against Cypress Senior Living Investors LP (“Defendant”), Buckingham Property Management (“Buckingham”), and Does 1 through 100 for premises liability and general negligence arising out of an alleged slip and fall on July 20, 2020.

On October 24 and 25, 2023, Defendant and Buckingham each filed an answer.

On May 3, 2024, the Court, at the request of Plaintiff, dismissed all causes of action against Buckingham.

Following the death of Plaintiff (in April 2024), the Court granted a motion for Yeghisapet Chvchyan to continue this action as Plaintiff’s successor in interest.

On August 21, 2024, Defendant filed this motion for summary judgment or, in the alternative, for summary adjudication, along with a request for judicial notice.

On April 21, 2025, Plaintiff filed an opposition, along with objections to some of Defendant’s evidence.

On April 28, 2025, Defendant filed a reply, along with objections to some of 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.)

Request for Judicial Notice

Defendant requests that the Court take judicial notice of a grant deed for the property and the operative complaint in this action. The request is granted.

Objections to Evidence

Plaintiff asserts 14 objections to the declaration of Heaven Thomas and 35 objections to the declaration of Matthew Nardella. All of these objections are overruled.

The Court notes that some of the objections are entirely without merit and approach the standard for being frivolous. Plaintiff’s counsel is admonished to assert only those objections that are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.  

Defendant asserts 9 objections to Plaintiff’s evidence. Objections Nos. 1-3 are sustained. (Code Civ. Proc., § 2030.410 & 2033.410, subd. (b).) Objections Nos. 5 and 7 are sustained (lack of foundation/personal knowledge). Defendant’s other objections are overruled.

Discussion

As a preliminary matter, Defendant argues that the Court should disregard Plaintiff’s opposition as it was filed late. When this motion was filed, Code of Civil Procedure section 437c required opposition papers to be filed 14 days before the hearing; while the motion was pending, amendments to section 437c became effective that require opposition papers to be filed 20 days before the hearing.

Given the significance of a summary judgment motion, as well as the absence of clarity regarding whether the statutory amendments to the briefing schedule apply to motions filed before, but heard after, the effective date of the amendments, the Court exercises its discretion to consider Plaintiff’s opposition.

Plaintiff and his wife Yeghisapet Chvchyan (who is also Plaintiff’s successor-in-interest) were tenants of Defendant’s apartment complex located at 311 East Cypress Street in Glendale since 2015. (Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 1.)

The building at issue in this matter was built in 1928. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 7.) Defendant acquired the apartment complex in 2013. (DSUMF, No. 8.)

Plaintiff’s unit was on the second floor. (PSAMF, No. 21.) Plaintiff he regularly used a stairway next to the unit (the “Stairway”) to access the parking lot, the trash bins, and the backyard sitting area. (Ibid.) The Stairway was built before Defendant acquired the property. (DSUMF, No. 8.)

In this litigation, Plaintiff contends that he suffered injuries on July 20, 2020, when he slipped while walking down the Stairway. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], Nos. 1-2.) Plaintiff contends that the condition of the Stairway was dangerous. (DSUMF, Nos. 2-4.)

Plaintiff asserts causes of action against Defendant for premises liability and negligence. 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.) 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.)

Defendant now moves for summary judgment, or in the alternative for summary adjudication of each cause of action, on three grounds: (1) Defendant owed no duty of care because the condition was open and obvious (Mem., at pp. 12-14); (2) Defendant did not breach any duty of care because the Stairway was code compliant (Mem., at pp. 14-15); and (3) Defendant did not breach any duty of care because Defendant did not have actual or constructive notice of the allegedly dangerous condition of the Stairway (Mem., at pp. 15-18). The Court considers each of these arguments, although in a slightly different order.

Absence of Dangerous Condition

Defendant argues that the Stairway complied with the building code in effect at the time the Stairway was constructed in 1928 and therefore was not a dangerous condition. There are a number of difficulties with this argument.

First, as Defendant’s expert Matthew J. Nardella states, at the time the Stairway was built, the construction was governed by Glendale’s Building Ordinance. (Nardella Decl., ¶ 10.) The City of Glendale did not adopt the Uniform Building Code (“UBC”) until “sometime in the 1930s.” (Ibid.) The requirements of the UBC – which Mr. Nardella discusses in some detail – are “not relevant,” Mr. Nardella states, “because [the UBC] was not the effective code in Glendale” at the time of construction. (Ibid.) “Because the subject building was constructed in 1928, it is required to be maintained per the Glendale Building Ordinance that was in effect in 1928 and not per any subsequent codes such as the UBC ….” (Id., ¶ 17.)

Notably, Mr. Nardella does not state in his declaration that the Stairway complied with the requirements of the Glendale Building Ordinance in effect in 1928. Accordingly, Defendant has not met its initial burden, as a party moving for summary judgment, of showing that the Stairway was not dangerous on the ground that it complied with the building code in effect at the time of construction. (Code Civ. Proc., § 437c, subd. (p)(2).)

Mr. Nardella does briefly state, however, that he inspected the Stairway and in his expert opinion the Stairway was not unsafe. (Id., ¶¶ 6, 19.) The Court assumes, without deciding that this is sufficient evidence for Defendant to discharge its initial burden, as a party moving for summary judgment, of showing that Plaintiff cannot establish the element of breach (failing to cure or warn of a dangerous condition on Defendant’s property) in his causes of action. This shifts the burden to Plaintiff to show there is a “triable issue of one or more material facts” on the issue of the existence of a dangerous condition. (Code Civ. Proc., § 437c, subd. (p)(2).)

Plaintiff has done so. With his opposition, Plaintiff presents the declaration of expert witness Kenneth Alvin Solomon, Ph.D., P.E. Dr. Solomon’s colleague, Jamie Garcia Fulgenico, inspected the Stairway, made measurements, and took photographs. (Solomon Decl., ¶ 6.) Based on this information, Dr. Solomon states (among other things): (1) the treads of the Stairway have a downward slope between 6.9 percent to 12.3 percent grade; (2) there is a tread variance of 3.19 inches (and 2.44 inches between the second and third steps below the landing); and (3) there is a riser variance of 1.71 inches. (Id., ¶¶ 6(b)-(c), 7(b)-(f).) In sum, according to Dr. Solomon, the steps were uneven in both the run and the rise and each step sloped downward significantly. This dangerous condition, in Dr. Solomon’s opinion, created a risk of a fall. (Id., ¶ 7.)

A trier of fact could reasonably credit the expert witness testimony of Dr. Solomon and could reasonably determine that the condition of the Stairway created an unreasonable risk of harm. On this record, there is a triable issue of whether the Stairway was a dangerous condition, and that Defendant breached its duty of care by not making the Stairway safe or providing a warning.

Accordingly, Defendant’s request for summary judgment or summary adjudication on this ground is denied.

Open and Obvious Conditions

As noted above, if a dangerous condition exists, a property owner generally must either correct the condition or warn. (E.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672-73; Bridgman, supra, 53 Cal.2d at p. 446.) In some cases, and subject to certain exceptions, however, a dangerous condition may be so obvious that the condition itself serves as a warning, and the landowner may have no further duty to remedy or warn of the condition. (See Kinsman, supra, 37 Cal.4th at p. 673; Montes v. YMCA of Glendale (2022) 81 Cal.App.5th 1134, 1142; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126; Krongos v. Pacific Gas Electric Co. (1992) 7 Cal.App.4th 387, 393.)

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 [citations omitted].)

Defendant argues that it had not duty to warn, and did not breach any duty to warn, because the allegedly dangerous condition of the Stairway was open and obvious. In support of this argument, Defendant offers Exhibit E, a photograph of the Stairway. The Court has inspected Exhibit E and determines that there is, at the least, a triable issue as to whether the allegedly dangerous condition of the Stairway was open and obvious; indeed, based on the Court’s inspection of the photograph, the allegedly dangerous condition appears to be entirely camouflaged or otherwise hidden. (See also Solomon Decl., ¶¶ 7(d)-(f).)

Accordingly, Defendant’s request for summary judgment or summary adjudication on this ground is denied.

Absence of Actual or Constructive Knowledge

“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.) “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.) “Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury.” (Ibid.)

Defendant argues that it did not have actual or constructive notice of the allegedly dangerous condition of the Stairway prior to Plaintiff’s fall. In support of this argument, Defendant presents the testimony of Heaven Thomas, Cypress Senior Living Community Director for the apartment complex. Ms. Thomas testifies: (1) Defendant never received any notice of a violation or citation for any type of code violation relating to the Stairway; (2) Defendant never received any notice or information that any person had tripped or fallen on the Stairway prior to Plaintiff’s accident; (3) Defendant never received any complaint from anyone about the Stairway prior to Plaintiff’s accident; and (4) Defendant had no incident reports regarding any complaints or injuries relating to the Stairway prior to Plaintiff’s accident. (Thomas Decl., ¶¶ 3-8.)

The Court assumes, without deciding that this is sufficient evidence for Defendant to discharge its initial burden, as a party moving for summary judgment, of showing that Defendant did not have actual or constructive notice of the allegedly dangerous condition prior to Plaintiff’s accident. This shifts the burden to Plaintiff to show there is a “triable issue of one or more material facts” on the issue of the existence of a dangerous condition. (Code Civ. Proc., § 437c, subd. (p)(2).)

Plaintiff has done so. With his opposition, Plaintiff presents the declaration of his widow Yeghisapet Chvchyan. Ms. Chvchyan testifies that she and her husband “complained numerous times to management about the unsafe condition of the stairs.” (Chvchyan Decl., ¶ 6.) She states that she and her husband “reported the dangerous and defective condition of the stairs to various property managers over time, including to manager Annette, who was the manager at the time of the incident.” (Ibid.)

A trier of fact could reasonably credit the testimony of Ms. Chvchyan and could reasonably determine that Defendant did have actual notice of the dangerous condition of the Stairway. On this record, there is a triable issue of actual or constructive knowledge.

Accordingly, Defendant’s request for summary judgment or summary adjudication on this ground is denied.

New Argument in Reply

In its reply, Defendant makes a new argument: that no one other than Plaintiff himself, who is deceased, can competently testify that Plaintiff ever even fell on the Stairway. (Reply, at pp. 2-4.) On summary judgment, however, a moving party cannot introduce new arguments in its reply brief. The Court declines to consider this new argument.

For all of the reasons set forth above, Defendant’s motion for summary judgment or, in the alternative, for summary adjudication is denied.

The Court need not reach, and does not reach, the other arguments in Plaintiff’s opposition as to why the motion should be denied.

Conclusion

The Court DENIES the motion of Defendant Cypress Senior Living Investors LP for summary judgment or, in the alternative, for summary adjudication.

Moving Party is to give notice.