Judge Upinder S. Kalra, Case Number: 21STCV34010, Date: 2023-12-11 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

MOVING PARTY: Defendants L&HM Limited Partnership and Stelee Industries, Inc.

RESPONDING PARTY(S): Plaintiffs Victor Aguirre, Claudia Aguirre, Stephen Osterberg, Kenneth Fraser, Jacob Gonzalez, Nicholas Estrada, and Sergio Seanz

1. Summary Adjudication of the First, Second, Third, and Fourth Causes of Action because there is no triable issue of fact regarding whether Defendants’ owed Plaintiffs a duty as Plaintiffs assumed the risk of harm;

2. Summary Adjudication of the Second Cause of Action because Defendants were not engaged in any ultrahazardous activity;

3. Summary Adjudication of the Third and Fourth Causes of Action because Defendants were not in possession, custody or control of the subject property when the incident occurred;

4. Summary Adjudication of the Third and Fourth Causes of Action because Defendants did not know and had no basis to know that a “dangerous” condition existed at the subject property;

5. Summary Adjudication of Claudia Aguirre’s loss of consortium claim as it is dependent upon Victor Aguirre’s claims; and

6. Summary Adjudication of Plaintiffs’ claim for punitive damages because Defendants did not act with malice, oppression, or fraud.

1. Motion for Summary Judgment, or Alternatively, Summary Adjudication is DENIED in its entirety.

On September 15, 2021, Plaintiffs Victor Aguirre and Claudia Aguirre (Plaintiffs) filed a Complaint against Steve Sungho Lee, Stelee Industries, Inc., SL Property Management I LLC, SL Property Management II LLC, L & H Limited Partnership, Bio Hazard Inc., Minh V. Vo, Green Buddah LLC, Raheela Lakhany, Smoke Tokes LLC, and Shafaq Aslam Sattar (Defendants) with six causes of action for: (1) Civil Code § 1714.9; (2) Strict Liability (Ultrahazardous Activity); (3) Negligence, (4) Premises Liability, (5) Loss of Consortium; and (6) Punitive Damages.

According to the Complaint, Plaintiff Victor Aguirre was injured on May 16, 2020 due to a massive explosion that occurred at 327 Boyd Street and adjacent properties in downtown Los Angeles (the Subject Property). Plaintiffs allege that the Subject Property contained hundreds of illegally and improperly stored butane canisters and thousands of illegally and improperly stored nitrous oxide cylinders. Plaintiffs additionally allege that these explosive materials were stored in such a way to negligently or intentionally conceal their contents from the firefighters.

On January 3, 2022, the court granted a notice of related cases with Case No. 21STCV07268 filed on 02/24/21 entitled Edwin Import, Inc., et al. v. City of Los Angeles, et al. The court deemed 21STCV07268 as the lead case.

On March 30, 2022, Cross-Complainants Steve Sungho Lee, Stelee Industries, Inc., SL Property Management I, LLC, SL Property Management II, LLC, and L&HM Limited Partnership filed a Cross-Complainant against Green Buddha LLC, Smoke Tokes, LLC, ST & Company, LLC, DCM Distributions, LLC, Raheel Lakhany, Shafaq Sattar, and Devendra C. Munyal with evelen causes of action for: (1) equitable indemnity, (2) apportionment, (3) express indemnity, (4) express indemnity, (5) breach of contract for failure to defend, (6) breach of contract for failure to defend, (7) declaratory relief on duty to defend, (8) declaratory relief on duty to defend, (9) breach of contract, (10) breach of contract, and (11) declaratory relief.

On June 13, 2022, the court granted another notice of related cases with Case No. 22STCV12786 filed on 04/15/22 entitled Stephen Osterberg v. Steve Sungho Lee, et al. and Case No. 22STCV15019 filed on 05/05/22 entitled Kenneth Fraser, et al. v. Steve Sungho Lee, et al.

On June 17, 2022, the court granted another notice of related cases that is identical to the June 13, 2022 notice of related cases.

On September 26, 2023, Defendants Stelee Industries, Inc. and L&HM Limited Partnership (Moving Defendants) filed the instant motion for summary judgment, or alternatively, summary adjudication as to the Complaint filed by Plaintiffs Victor Aguirre and Claudia Aguirre (Aguirre Plaintiffs).

On December 1, 2023, the Aguirre Plaintiffs filed an opposition. No REPLY was filed.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley¿v.¿Oakshade¿Town Center¿(2005) 135 Cal.App.4th 289, 294).¿Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.¿(CCP § 437c(c);¿Villa v.¿McFarren¿(1995) 35 Cal.App.4th 733, 741.)

A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.)

As to each claim as framed by the complaint, the party¿moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element.¿(Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) 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.) A motion for summary judgment or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak.¿(See¿Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475;¿Salesguevara¿v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)¿¿¿

Once the¿moving¿party has met the burden, the burden shifts to the opposing party¿to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.¿(CCP § 437c(o)(2).)¿ When¿a¿party¿cannot¿establish an essential element or defense, a court must grant a motion for summary judgment or summary adjudication.¿(CCP § 437c(o)(1)-(2).)¿

Plaintiffs contend that the court should deny the motion because Moving Defendants failed to set forth each issue and the facts to support each issue in violation of Cal. Rules of Court 3.1350(d).

“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(2) The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.

(3) The separate statement must be in the two-column format specified in (h). The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”

CCP 437c(b)(1) states in pertinent part: “The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.”

The court disagrees with Plaintiffs’ contention that it must deny the motion due to faulty Separate Statement.[1] Indeed, the code provides such a response when there is no Separate Statement filed with the MSJ. Here, Moving Defendants have provided a Separate Statement of the material facts upon which it relies to support its motion.

Moving Defendants contend that the “Firefighter’s Rule” bars the Aguirre Plaintiffs’ claims with no applicable exceptions.[2] Plaintiffs argue that the facts show an exception to the Firefighters Rule because the explosion was not the reason the firefighters were summoned.

Under the “firefighters rule,” third persons injured by the very risk that necessitated their presence on the premises cannot recover for injuries proximately caused by that risk. (Gregory v. Cott (2014) 59 Cal.4th 996, 1001-1002.) Thus, landlords and tenants are not liable to firefighters injured by the “normal hazards” of their occupations. (Ibid.) Put differently, the “firefighters rule” is a form of primary assumption of risk which bars plaintiffs from recovery because defendants have no legal duty to protect plaintiffs from the very risk of harm they are employed to confront. (Knight v. Jewett (1992) 3 Cal.4th 296, 309; Rosenbloom v. Hanour Corp. (1998) 66 Cal.App.4th 1477, 1480-1481 (applying the same rationale to a shark handler).) As a result, causes of action based on injuries arising out of plaintiff’s “normal” occupational risks is barred even if the injury-provoking conduct was ordinary negligence, “reckless,” or “willful or wanton.” (Ibid; see also Lipson v. Sup. Ct. (Berger) (1982) 31 Cal.3d 362, 373 (Lipson); Rowland v. Shell Oil Co. (1986) 179 Cal.App.3d 39, 405.) However, liability will lie for injuries caused by tortious conduct independent of the normal incidents of responding to the peril. (Civ. Code § 1714.9; Donohue v. San Francisco Housing Auth. (1993) 16 Cal.App.4th 658, 663; Lipson, supra at p. 369 (noting the rule only applies to prohibit firemen from recovering for injuries caused by the very misconduct which created the risk which necessitated his presence.))

In Lipson, Court of Appeal concluded that the firefighter could recover for injuries sustained on the job because the landowner’s deception was an “independent act” of misconduct when he falsely told the firefighter chemicals involved in a boilover were nontoxic. (Lipson, supra, at p. 369.) There, the firefighter responded to a call to handle a boilover at a chemical production plant. (Id. at 370.) The Court found that the landowner’s representations were independent acts because they occurred after the chemicals had boiled over, the firefighter had already arrived at the scene, and the misrepresentation “was not the reason for real party’s presence at the chemical plant.” (Ibid.)

Here, Moving Defendants met their initial burden showing that the Firefighter’s Rule applied to this case. Specifically, the Plaintiffs responded to the scene of a structure fire and were injured while fighting the fire. (Separate Statement of Undisputed Material Facts (UMF) Nos. 8, 10, 11, 12.) However, Plaintiffs met their burden showing a triable issue of material fact disputing the Firefighter Rule’s application to the instant case. In particular, the fire was caused by an employee who ashed a cigarette under shelving filled with cardboard and left a lit coal which smoldered and transitioned to a full fire amongst ordinary combustible materials. (Plaintiffs’ Additional Statement of Facts (AMF) No. 2.) So, as in Lipson, where the firefighter responded to a boilover and subsequently encountered the hazardous materials, here, Plaintiffs responded to a structural fire that was not resulting from the alleged mishandling of the hazardous materials. Indeed, as the Lipson court noted, “a fireman does not assume every possible risk he may encounter while engaged in his occupation.”[3] (Lipson, supra, at p. 371.)

Accordingly, the court DENIES Moving Defendant’s motion for summary adjudication as to the First, Second, Third, and Fourth Causes of Action.

Moving Defendants contend there is no evidence that Moving Defendants retained any control of the subject property after having leased it to the tenants, was not aware of the type of materials stored on May 16, 2020, or received any complaints regarding the tenants’ use of the Subject Property at any time prior to the incident. Moving Defendants also contend that their tenants’ alleged fire code violations are not imputed to them. Plaintiffs argue that there is a factual dispute as to how much control Moving Defendants retained over the Subject Premises and whether they knew or should have known that their tenants stored the hazardous materials. Put differently, Plaintiffs argue that there is a dispute as to whether Moving Defendants had some reason to know there was a need to inspect the Subject Premises.

“The obligation to inspect arises only if the landowner has some reason to know there was a need for such action.” (Lin Joon Oh v. Teachers Insurance and Annuity Association of America (2020) 53 Cal.App.5th 71, 86; Garcia v. Holt (2015) 242 Cal.App.4th 600, 605.) “The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant.” (Oh, supra, at p. 605.)

Here, Moving Defendants met their initial burden that they owed no duty to Plaintiffs. Specifically, Moving Defendants owned and managed the Subject Property. (UMF Nos. 17, 18.) Mr. Lee, as part of his duties for and involvement with Moving Defendants, has been at or in the vicinity of the Subject Property regularly since 2000. (UMF No. 23.) On August 12, 2019, Defendant L&HM leased Unit B of the Subject Property to ST & Company LLC a.k.a. Smoke Tokes. (UMF No. 24.) On November 20, 2019, Defendant L&HM leased Unit A of the Subject Property to Green Buddha, LLC. (UMF No. 27.) Mr. Lee claims that Moving Defendants had no knowledge prior to May 16, 2020 that their tenants stored hazardous materials at the Subject Property and that they stored them unsafely. (UMF No. 80.)

However, Plaintiffs met their burden to demonstrate a factual dispute as to how much control Moving Defendants exerted on the Subject Property and whether they knew that their tenants maintained hazardous materials.[4] First, there is a triable issue of fact as to how often Moving Defendants inspected the Subject Property because the lease provides for “verifying compliance by Lesee with the Lease.” (UMF No. 50.) Second, the Fire/Life Safety Violation Notice from 8/24/16 cuts against Moving Defendants’ lack of knowledge argument because it cites problems with “storage” of boxes below the ceiling and indicates removal and safe disposal of all combustible rubbish and waste material at the close of each working day. (UMF No. 70.) Additionally, Plaintiffs show a factual dispute as to when these violations were remedied (if at all). (UMF No. 71.) Violations apparently happened again in 2017 for the same reasons. (UMF No. 74, 75.) And another in 2019 for improper storage. (UMF No. 78, 79.) As to Mr. Lee’s claim for no knowledge of hazardous materials, Plaintiffs show that Mr. Lee knew that at least Smoke Tokes stored hazardous materials because Smoke Tokes’ storage of hazardous materials caused a fire in 2016 at one of Mr. Lee’s other buildings, Smoke Tokes entered a new lease with Moving Defendants and carried on the same business. (UMF No. 80.) Finally, there are photographs of cardboard boxes labeled “butane” blocking the exit of one of the properties. (UMF No. 85.)

Accordingly, the court DENIES Moving Defendants’ motion for summary judgment, or alternatively summary adjudication, as to the First, Second, Third, and Fourth Causes of Action.

Moving Defendants contend that they were not engaged in ultrahazardous activity because they were the property owner and maintenance company, did not control or possess the premises, and were not involved in and played no role in the presence or storage of any materials at the Subject Property. Plaintiffs argue that there is a factual dispute as to how much control Moving Defendants retained over the Subject Premises and whether they knew or should have known that their tenants stored the hazardous materials.

Whether an activity is “ultrahazardous” for strict liability is a question of law. (Luthringer v. Moore (1948) 31 Cal.2d 489, 496.) There are six factors courts consider (one alone is usually not dispositive): (1) existence of a high degree of risk of some hard to the person or property of others; (2) likelihood that harm from the activity will be great; (3) inability to eliminate the risk by the exercise of reasonable care; (4) extent to which the activity is not a matter of common usage; (5) inappropriateness of the activity to the place where it is carried on; and (6) the extent to which the value of the activity to the community is outweighed by its dangerous attributes. (Edwards v. Post Trans. Co. (1991) 228 Cal.App.3d 980, 984-985.)

Here, Moving Defendants did not meet their initial burden. First, the Separate Statement is wholly deficient as to which facts support their argument to this issue. Second, Moving Defendants did not develop this argument.

Accordingly, the court DENIES Moving Defendants motion for summary judgment, or alternatively, summary adjudication as to the Second Cause of Action.

Moving Defendants contend that Plaintiff Claudia Aguirre’s claim fails because her husband’s claim fails. Plaintiffs argue the claim does not fail.

As discussed above, there are material factual disputes pertaining to the First, Second, Third, and Fourth Causes of Action. As such, Plaintiff Claudia Aguirre’s Fifth Cause of Action survives.

Accordingly, the court DENIES Moving Defendants’ motion for summary judgment, or alternatively, summary adjudication as to the Fifth Cause of Action.

Moving Defendants contend that there are no triable issues of material fact demonstrating that punitive damages are appropriate. Plaintiffs argue there is a material factual dispute as to Moving Defendants’ knowledge.

As discussed above, the court agrees there is a material factual dispute as to Moving Defendants’ knowledge of the hazardous materials. Additionally, Moving Defendants’ Separate Statement is deficient such that it is unclear which facts support their argument.

Accordingly, the court DENIES Moving Defendants’ motion for summary judgment, or alternatively, summary adjudication as to the Sixth Cause of Action.

1. Motion for Summary Judgment, or Alternatively, Summary Adjudication is DENIED in its entirety.

[1] However, the court notes that the Court of Appeal recently commented that “[t]rial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement.” (Beltran v. Hard Rock Hotel Licensing, 2023 S.O.S. 3646.)

[2] Moving Defendants note that the parties agreed across all related cases that the ruling on the instant motion would apply to the Plaintiffs in the other matters.

[3] The court declines to address the remaining arguments for and against the Firefighter’s Rule concerning knowledge (by the Moving Defendants or the Plaintiffs) that there were hazardous materials.

[4] Upon reviewing the papers, Mr. Lee is an agent of Moving Defendants such that his knowledge would be imputed to the Moving Defendants. (Civ. Code § 2332.)