Judge: Walter P. Schwarm, Case: 30-2021-01178498, Date: 2022-08-09 Tentative Ruling

Defendants’ (Essex Property Trust, Inc., Essex Management Corporation, and Essex Skyline Holdings, LLC) Motion for Summary Judgment, or in the Alternative, Summary Adjudication (Motion), filed on 2-15-22 under ROA No. 57 is GRANTED.

 

Defendants’ Request for Judicial Notice (DRJN), filed on 2-15-22 under ROA No. 49, is GRANTED pursuant to Evidence Code section 452, subdivision (d).

 

Plaintiffs’ (Kelly Dooley, Zoe Dooley, and Kanna Kingdom) Request for Judicial Notice (PRJN), filed on 6-29-22 under ROA No. 103, is DENIED as immaterial to the court’s decision set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)   

 

Plaintiffs’ Evidentiary Objections to the Declaration of Nilufar Etemad, filed on 6-29-22 under ROA No. 92, are OVERRULED.

 

Plaintiffs’ Evidentiary Objections to the Declaration of Richard A. Muench, filed on 6-29-92 under ROA No. 93, are OVERRULED.

 

Defendants’ Objections to Evidence in Support of Opposition, filed on 7-7-22 under ROA No. 110, are SUSTAINED as to Objection Nos. 2 and 7, and OVERRULED as to the remaining objections.

 

On 1-12-21 under ROA No. 2, Plaintiffs filed a Complaint against Defendants alleging the following causes of action: (1) Gross Negligence; (2) Negligent Interference with Prospective Economic Relations; (3) Negligent Infliction of Emotional Distress; (4) Premises Liability; and (5) Business Proprietor Liability for Criminal Conduct. The Complaint alleges, “Defendants’ negligence in failing to secure the Premises, including but not limited to, failure to timely repair the Garage door and failure to install cameras or undertake any other remedial measures . . . .” (Complaint, ¶ 47.)

 

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.  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 that cause of action or a defense thereto.”  Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.” 

 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing.  A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]”  (Italics in Aguilar; Footnotes 13 and 14 omitted.) 

 

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)

 

Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”

 

Motion for Summary Judgment/Adjudication:

 

Defendants seek an order granting summary judgment, or in the alternative, summary adjudication. Defendants’ Notice of this Motion and Defendants’ Separate Statement (DSS), filed on 2-15-22 under ROA No. 53, respectively do not comply with California Rules of Court, rule 3.1350(b).

 

California Rules of Court, rule 3.1350 (b) states, “. . . If summary adjudication is sought . . . the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim in the separate statement of undisputed material facts.” Sequoia Insurance Company v. Superior Court (1993) 13 Cal.App.4th 1472, 1478 (Sequoia), states, “Defendants' motion was made in August 1992, more than 18 months after the 1990 amendment to Code of Civil Procedure section 437c took effect. Subdivision (f) of that statute redefines the summary adjudication process, eliminating its use for facts or issues ‘that do not completely dispose of a cause of action or a defense.’ [Citation.] Accordingly, there is no longer any reason for a notice of motion to identify specific issues; a listing of the disputed causes of action, as was done here, is sufficient. The trial court's stated requirement that the ‘matters’ at issue be more precisely identified would have been accurate under the prior system of summary adjudication (cf. Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494 [224 Cal.Rptr. 554]), but is unjustified under the present version of section 437c, subdivision (f).” (Footnotes 2 and 3 omitted.)  Truong v. Glasser (2009) 181 Cal.App.4th 102, 118, provides, “. . . the court's power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory. [Citations.]”

 

The Notice of Motion states Defendants “. . . will move the court for an order granting summary judgment, or in the alternative, summary adjudication. [¶] The motion will be made pursuant to Code of Civil Procedure §437c on the grounds that Defendants have no liability to Plaintiffs in this lawsuit for various causes of action arising from purported negligence. Alternatively, Defendants will move this court pursuant to Code of Civil Procedure §437c(f) for summary adjudication.” (Motion, 2:3-6.) The Notice of Motion does not identify the specific causes of action to which Defendants seek summary adjudication. Therefore, the court construes the Motion as a motion for summary judgment.

 

Authentication:

 

Initially, the court OVERRULES Plaintiffs’ authentication objection to Exhibit A, the Lease Agreement between Essex Skyline at MacArthur Place and Janice M. Dooley and Kelly Dooley, referenced at paragraph 4 of the declaration of Nilufar Etemad.  Plaintiffs’ Further Briefing (PFB), filed on 7-21-22 under ROA No. 121, states, “As discussed above, Plaintiff’s statement in the unverified Complaint regarding the lease is a legal conclusion on information and belief as to whether the parties had ‘entered into’ the lease; not whether Plaintiff Dooley had signed it, which she has since denied. For this reason, Plaintiffs do not bring any contract-based claims in the Complaint, and there is a real, triable issue of fact as to whether Plaintiff Dooley signed the lease that must be preserved for trial.” (PFB; 3:19-23.)

 

Evidence Code section 1400 states, “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”  Evidence Code section 1401, states, “(a) Authentication of a writing is required before it may be received in evidence. [¶] (b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.”  Evidence Code section 1414 states, “A writing may be authenticated by evidence that: [¶] (a) The party against whom it is offered has at any time admitted its authenticity; or [¶] (b) The writing has been acted upon as authentic by the party against whom it is offered.”

 

People v. Smith (2009) 179 Cal.App.4th 986, 1001, states, “Evidence Code sections 1410 through 1421 list various methods of authentication of documents—e.g., by the testimony of a subscribing witness or a handwriting expert—but these methods are not exclusive. (Evid.Code, § 1410; People v. Olguin (1994) 31 Cal.App.4th 1355, 1372, 37 Cal.Rptr.2d 596.) ‘California courts have never considered the list set forth in Evidence Code sections 14101421 as precluding reliance upon other means of authentication.’ (People v. Olguin, supra, at p. 1372, 37 Cal.Rptr.2d 596.) ‘Circumstantial evidence, content and location are all valid means of authentication.’ (People v. Gibson (2001) 90 Cal.App.4th 371, 383, 108 Cal.Rptr.2d 809.)

 

Bannister v. Marinidence Opco, LLC, (2021) 64 Cal.App. 5th 541, 545 (Bannister) provides, “Civil Code section 1633.9, subdivision (a), governs the authentication of electronic signatures. It provides that an electronic signature may be attributed to a person if ‘it was the act of the person.’ (Civ. Code, § 1633.9, subd. (a).) Further, ‘[t]he act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.’  (Id.) For example, a party may establish that the electronic signature was ‘the act of the person’ by presenting evidence that a unique login and password known only to that person was required to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions. [Citations.]”

 

Ruiz v. Moss Bros. Auto Group., (2014) 232 Cal.App.4th 836, 844 (Ruiz), explains, “Rather than offer this or any other explanation of how she inferred the electronic signature on the 2011 agreement was the act of Ruiz, Main only offered her unsupported assertion that Ruiz was the person who electronically signed the 2011 agreement. In the face of Ruiz's failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of Ruiz, and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’ Ruiz. (Civ. Code, § 1633.9, subd. (a).) For the same reason, the evidence was insufficient to support a finding that the electronic signature was what Moss Bros. claimed it was: the electronic signature of Ruiz. (Evid. Code, § 1400, item (a).) This was not a difficult evidentiary burden to meet, but it was not met here.”

 

Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 (Valerio), provides, “Valerio admitted the existence of a written contract in his answer to the cross-complaint. The admission of fact in a pleading is a ‘judicial admission.’ Witkin describes the effect of such an admission: ‘An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be commented on in argument and relied on as part of the case. And it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of ‘conclusiveness of pleadings,’ a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. [Citations.]’ [Citation.] [¶] The law on this topic is well settled by venerable authority. Because an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial. [Citation.] ‘ “When a trial is had by the Court without a jury, a fact admitted by the pleadings should be treated as ‘found.’ . . . If the court does find adversely to the admission, such finding should be disregarded in determining the question whether the proper conclusion of law was drawn from the facts found and admitted by the pleadings. . . . In such case the facts alleged must be assumed to exist. Any finding adverse to the admitted facts drops from the record, and any legal conclusion which is not upheld by the admitted facts is erroneous.” [Citations.]’ [Citation.] ‘When allegations in a complaint are admitted by the answer (a) no evidence need be offered in their support; (b) evidence is not admissible to prove their untruth; (c) no finding thereon is necessary; (d) a finding contrary thereto is error.’ [Citation.] Thus, as to the cross-complaint, Valerio's admission had the effect of establishing the truth of the existence of the written contract.”  (See also, Womack v Lovell (2015) 237 Cal.App.4th 772, 786 (Womack); Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451–452 (Barsegian).) “First, even unverified complaints can contain judicial admissions, as shown in Reichert, supra, 68 Cal.2d 822, 69 Cal.Rptr. 321, 442 P.2d 377.” (Womack, supra, 237 Cal.App.4th 772, 786.)

 

“In summary judgment or summary adjudication proceedings, ‘[a]dmissions of material facts made in an opposing party's pleadings are binding on that party as “judicial admissions.” They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her.’ [Citations.]  ‘ “[A] pleader cannot blow hot and cold as to the facts positively stated.” ’ [Citation.] Accordingly, Frontier and Bigge are bound by their judicial admissions.” (St. Paul Mercury Insurance Company v. Frontier Pacific Insurance Company (2003) 111 Cal.App.4th 1234, 1248 (St. Paul); Italics in St. Paul.)

 

Plaintiff’s Complaint, filed on 1-12-21 under ROA No. 2, directly alleges, “Plaintiff Dooley, as tenant, entered into that certain written LEASE AGREEMENT (‘Lease’) dated August 4, 2019 with ESSEX MANAGEMENT CO., as landlord, for residential lease of the premises at Essex Skyline at MacArthur Place (hereinafter ‘Skyline’), commonly known as 9 MacArthur Place #2505, Santa Ana, California 92707 (‘the Premises’). A copy of the Lease is attached hereto as Exhibit A. As part of the Lease, Plaintiff also leased an enclosed garage located in the underground parking structure of her apartment building (the ‘Garage’). (Complaint, ¶ 10; Emphasis in Complaint (DRJN Exhibit E as to Garage.).)

 

Exhibit A, attached to the Complaint, contains the entire Lease Agreement and addendums for Unit #2505, and includes the “GARAGE/CARPORT/ADDITIONAL PARKING AGREEMENT” (Garage Addendum.) Plaintiff’s Complaint characterizes the Lease Agreement as including the Garage Addendum by attaching both as Exhibit A to the Complaint.

 

Here, Plaintiffs’ Complaint admits admitted that Plaintiff Kelly Dooley entered into the Lease Agreement attached it to her Complaint. Evidence Code section 1400 allows a document to be authenticated by the establishment of facts sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is by any other means provided by law. Plaintiff’s admission in the Complaint at paragraph 10, coupled with attaching the Lease Agreement to the Complaint, demonstrates that Plaintiff—Kelly Dooley has admitted its authenticity and has acted upon it as authentic under Evidence Code sectin 1414.  This evidence is sufficient to show that the writing, the Lease Agreement referenced as Exhibit A (see Exhibit A contained in Defendants’ Notice of Lodgment (NOL) filed on 2-15-22 under ROA No. 55) to the declaration of Nilufar Etemad, is the Lease Agreement between Plaintiff—Kelly Dooley and Defendant—Essex Management Company.  Although evidence that Plaintiff—Kelly Dooley signed the lease would also tend to show authentication, evidence of a signature is not the only method by which to demonstrate authentication of a document.  The issue is whether the parties entered into a Lease Agreement regardless as to how the Lease Agreement is authenticated. Plaintiffs cannot contradict the allegation in the Complaint that Plaintiff—Kelly Dooley entered into the Lease Agreement.

 

Motion for Summary Judgment as to Plaintiff—Kelly Dooley:

 

Relying on the Lease Agreement, Defendants contend, “Common to all causes of action is an actual duty owed to Plaintiffs, however, Plaintiff cannot establish any duty. Plaintiff was explicitly precluded from storing any items in her garage other than a vehicle, including illegal substances, and thus, Defendant owed no duty of care to safeguard Plaintiff’s personal belongings that were prohibited from being store in the garage.  The scope of Defendants’ duty did not extend to Plaintiffs’ personal belongings that were prohibited.” (Motion; 6:8-12.)

 

Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, or in the Alternative Summary Adjudication (Opposition), filed on 6-29-22 under ROA No. 97, asserts, “California’s Civil Code states that any provision of a lease agreement which has a tenant waive their right to have the landlord exercise a duty of care to prevent injuries to person or property is void as contrary to public policy. Cal. Civ. Code. §1953(a)(5). Clearly, the exculpatory clauses on which Defendants rely to avoid a duty of care are not valid in California, and, inherently, the case at bar.” (6:5-9.)

 

Civil Code section 1953 states in part, “(a) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] (1) His rights or remedies under Section 1950.5 or 1954. [¶] (2) His right to assert a cause of action against the lessor which may arise in the future. [¶] (3) His right to a notice or hearing required by law. [¶] (4) His procedural rights in litigation in any action involving his rights and obligations as a tenant. [¶] (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law. [¶](b) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive a statutory right, where the modification or waiver is not void under subdivision (a) or under Section 1942.11942.5, or 1954, shall be void as contrary to public policy unless the lease or rental agreement is presented to the lessee before he takes actual possession of the premises. This subdivision does not apply to any provisions modifying or waiving a statutory right in agreements renewing leases or rental agreements where the same provision was also contained in the lease or rental agreement which is being renewed. [¶] (c) This section shall apply only to leases and rental agreements executed on or after January 1, 1976.”

 

Lewis Operating Corporation v. Superior Court (2011) 200 Cal.App.4th 940, 944-946 (Lewis), explains, “Thus, Civil Code section 1953 was essentially a codification of California common law, and its application in general to residential leases is beyond dispute. The issue here is whether public policy prohibits exculpatory clauses in a residential lease that pertain to what might be called noncore functions of the property. [¶] We are not persuaded by petitioners' first argument to the effect that Civil Code section 1953 only prohibits waivers of statutory duties such as those set out in Civil Code sections 1941 and 1941.1 relating to habitability. Duties are also imposed judicially, by the common law, and such duties are enforceable in the same manner as statutory duties. [Citation.] Thus, we have grave doubts that a landlord would be able to enforce an exculpatory clause just because the tenant's injury was caused by a defect other than one comprised in the concept of habitability. It is well established that a landlord must comply with the general obligation of Civil Code section 1714, which requires every person to take ‘reasonable care’ in the management of his or her own property. [Citations.] Thus, a landlord may be liable to a tenant for injuries incurred due to dangers or defective conditions that have nothing to do with habitability or tenantability in the legal sense. For example, a landlord may be liable if a child falls out of a window in a common hallway [citation], fails to install a perimeter barrier when it is foreseeable that playing children might be propelled into a busy street [citation], or fails to provide safety warnings and equipment at a common-area swimming pool [citation]. [¶]  As the above-mentioned cases show, a landlord may be held liable in tort under usual rules of duty and negligence even if the dangerous condition does not exist in the tenant's dwelling and does not affect the statutorily required elements of habitability or tenantability. We will assume, arguendo, that a landlord may not lawfully require the tenant to sign an exculpatory clause relating to injuries that might occur as a result of the tenant's use of the basic or essential common areas—i.e., a parking area, lawns, walkways or corridors. However, we do conclude that a landlord's duty to maintain amenities does not necessarily trigger the application of Civil Code section 1953 or the rule of Henrioulle and Tunkl and, in fact, does not do so in this case. [¶] We need not decide how far our decision reaches because, in this case, the provision of an on-site health club or exercise facility was clearly well outside the basic, heavily regulated offering of a residential dwelling. Furthermore, providing health club or exercise facility services has repeatedly been held not to invoke the ‘public policy’ rule of Tunkl, and this strongly suggests that the same result should be obtained even if the operator of the health club or exercise facility is also the user's landlord.” (Footnote 3 omitted; Italics in Lewis.) “Civil Code section 1953 is designed to protect a tenant's basic, essential need for shelter. Real party's recreational use of the fitness facility and equipment was in no way critical to this need. Petitioners had no legal obligation to offer such a facility and we conclude that it was entitled to condition real party's use on his execution of the waiver and release at issue here. No public policy was violated by the exculpatory clause, and it may be enforced against real party in this case.” (Id., at p. 948.)

 

As to their initial burden, Defendants have established that Plaintiff-Kelly Dooley entered into the Lease Agreement and Garage Addendum on 8-4-19. (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A.)

Paragraph 10 of the Garage Addendum explicitly states: “10. VEHICLE PARKING ONLY: Garage/Carport/Parking space shall not be used for storage of goods. At no time may Resident maintain within the garage any article dangerous or detrimental to life of the health of the occupants of the Community, nor may there be stored, kept or handled any straw excelsior, cotton, paper stock, rags, junk or any other flammable material that may create a fire hazard. The use of any electrical equipment inside any garage/carport/parking area is strictly prohibited.” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A (Emphasis in Garage Addendum.)

 

This evidence is sufficient to establish Defendant’s initial burden that Defendants did not owe a duty based on the exculpatory provision contained at paragraph 10 of the Garage Addendum. Thus, the burden shifts to Plaintiff to raise a triable issue of material fact.

 

Plaintiff—Kelly Dooley states, “I do not recall having ever physical or electronically signing the Lease Agreement or the Garage Agreement that is attached to the Declaration of Nilufar Etemad and do not recognize the electronic signatures contained therein. My signature to this Declaration is authentic and does not match either of the signatures to the Lease and Garage Agreements.” (Dooley Decl. ¶ 21.) As discussed above, however, there is a judicial admission that Plaintiff—Dooley entered into the Lease Agreement which included the Garage Addendum. Thus, Plaintiff cannot dispute that Plaintiff assented to the Lease agreement. Further, Plaintiff declares, “Gina and Stephanie recommended that I utilize my private enclosed double 4-car garage to store my property. As Gina and Stephanie stated to me, upon making their recommendation, this way I would be able to park my vehicles at the Essex and also use the extra space to store my private property. I stored the high value items in one of my vehicles within the garage which I do not drive often.” (Dooley Decl. ¶ 7.)

 

The issue is whether Defendants’ managers, Gina and Stephanie, modified the Lease Agreement.  Defendants objected to paragraph 7 of Plaintiff—Kelly Dooley’s declaration based on hearsay and an apparent parole evidence objection.

 

Code of Civil Procedure section 1856, subdivision (a), states, “(a) Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement” Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433-1434 (Ailing), states, “The parol evidence rule . . . is a principle of substantive law. The rule derives from the concept of an integrated contract and is based on the principal that when the parties to an agreement incorporate the complete and final terms of the agreement in a writing, such an ‘integration’ in fact becomes the complete and final contract between the parties, which may not be contradicted by evidence of purportedly collateral agreements.” “Whether a contract is integrated is a question of law when the evidence of integration is not in dispute. [Citations.]” (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 954.)

 

The Lease Agreement states, “49.ENTIRE AGREEMENT: This Agreement, including all addenda and the Community Handbook, set forth the entire agreement among the Parties with respect to the matters set forth in it. It shall not be altered nor modified unless such alteration or modification is in writing and signed by all signatories to this Lease. No verbal agreements or representations have been made or relied upon by either party or any agent or employee of either party, and neither party nor any agent or employee of either party is entitled to alter any provisions of this Lease by any verbal representations or agreements to be made subsequent to the execution of this Lease. The foregoing notwithstanding, if Resident holds over after the expiration of the Lease term on a month-to-month holdover basis, Landlord may change any provision of this Lease without the consent of Resident in the manner prescribed by California Civil Code Section 827.” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A (Emphasis in Garage Addendum.) Based on paragraph 49, the court finds that the Lease Agreement is integrated.  Plaintiffs cannot rely on paragraph 7 of Plaintiff—Kelly Dooley’s declaration to modify or alter the Lease Agreement., The court sustains Defendants Objection No. 2. Therefore, paragraph 7 of Plaintiff—Kelly Dooley’s declaration does not create a triable issue of material fact.

 

Plaintiffs also contend, “Even if, arguendo, Plaintiff Dooley is bound to the Lease Agreement or the Garage Agreement, none of the exculpatory provisions of either agreement apply because high value items stolen from her and Plaintiff Kanna Kingdom were stored inside her vehicle, not just ‘within the garage,’ and her vehicle was properly parked in her garage.” (Opposition; 9:24-26.)  Civil Code section 1511, subdivision (3), states, “The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: . . . [¶] 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.”

 

Civil Code section 1511, subdivision (3), does not support that Defendants waived their right to enforce paragraph 10 of the Garage Addendum based on the integration provision at paragraph 49 of the Lease Agreement.  Paragraph 49 of the Lease Agreement applies to “. . . any verbal representations or agreements to be made subsequent to the execution of this Lease. . . .”  Further, paragraph 54 of the Lease Agreement provides, “WAIVER: Landlord's failure to require strict compliance with any provision of this Lease or to exercise any rights arising under this Lease shall not be deemed a waiver of Landlord's right to enforce any such provision or to insist upon any such right. The fact that Landlord may have accepted late payment(s) on one or more occasions shall not be deemed a waiver of Landlord's right to insist upon timely payment of rent nor to exercise any remedy available for late payment of rent. Acceptance of rent following a breach of this Lease shall not be deemed to constitute a waiver of such breach. No custom or practice which may develop between the Parties in the course of tenancy shall be construed to waive the right of Landlord to enforce any provision of this Lease.” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A (Emphasis in Lease Agreement.).)  Based on the paragraphs 49 and 54 of the Lease Agreement, Civil Code section 1511, subdivision (3), does not apply to demonstrate that Defendants waived their right to enforce the Lease Agreement.

 

As to the application of Civil Code section 1953, the Garage Addendum contains numerous waiver and indemnification provisions.  For example, paragraph 11 of the Garage Addendum states, “. . . Essex Skyline at MacArthur Place does not assume any responsibility for loss or damage to Resident’s or guest’s automobile or personal property arising from any cause but not limited to theft, burglary, assault, vandalism, fire, flood, water leaks, rain, hail, snow, smoke, lightening, wind, explosion, earthquake or any other cause not directly caused by willful acts of Landlord.” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A.)  Paragraph 12 of the Garage Addendum provides,“Landlord does not provide any insurance insuring Resident’s vehicle or other personal belongings. Landlord has no liability whatsoever for loss or damage to the Resident’s property, whether by fire, theft, vandalism, mysterious disappearance or otherwise while any vehicles/goods are stored within the garage/carport/parking area.” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A.)  Paragraph 13 of the Garage Addendum states, ““Resident will indemnify, hold harmless, and defend Landlord from all claims, demands, actions or causes of action that are hereinafter made or brought about by others as a result of, or arising out of, Resident’s use of the Garage/Carport/Additional Parking.” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A.)

 

Here, Plaintiff has not demonstrated that Defendants had a duty of care imposed by law.  Lewis supports that Defendants duty of care did not extend to Plaintiff—Kelly Dooley’s garage. Although Defendants duty of care extended to common areas, Plaintiff—Kelly Dooley has not provided evidence or authority that Defendants were required to provide garages to tenants.  Civil Code section 1953 does not prohibit Defendants from protecting themselves by requiring Plaintiff—Kelly Dooley to execute the exculpatory provisions of the Lease Agreement and Garage Addendum because Defendants were not required to provide a garage to Plaintiff—Kelly Dooley.

 

The court finds that Plaintiff have not demonstrated a triable issue of material fact as to Plaintiff—Dooley.  Therefore, the court GRANTS the Motion for Summary Judgment as to Plaintiff—Kelly Dooley.

 

Motion for Summary Judgment as to Plaintiff—Kanna Kingdom:

 

The Motion states, “Plaintiff Kanna Kingdom is a plaintiff in this action and asserts all causes of action against Defendants in this case, however, there are no duties owed to it. First and foremost, it is undisputed that the only parties to the Lease Agreement are Essex and Plaintiffs Janice M. Dooley and Kelly Dooley. Noticeably absent from the Lease Agreement is any reference whatsoever to ‘Kanna Kingdom’. There are no facts that Plaintiffs can allege that any duty was owed through contract, statute or relationship with Kanna Kingdom.” (Motion; 10:9-13.)

 

J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803 (J’Aire) provides, “A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society. [Citation.]”

 

“Traditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents’ safety in those areas under their control.” Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499 (Frances T.), provides, “And traditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents' safety in those areas under their control. [Citations.]”

 

Defendants’ evidence shows that Plaintiff—Kanna Kingdom is not a party to the subject Lease Agreement or Garage Addendum between Plaintiff—Kelly Dooley, Janice M. Dooley and Defendants.  (Plaintiffs’ Separate Statement (PSS) filed on 6-29-22 under ROA No. 99; PSS No. 3.) Further, paragraph 19 of the Lease Agreement states in part, “. . . the Premises are rented for residential uses only . . . .” (Etemad Decl., ¶ 4 and Exhibit A; Complaint, ¶ 10 and Exhibit A.) This evidence sufficient to meet Defendants’ initial burden of demonstrating that Defendants do not owe a duty to Plaintiff—Kanna Kingdom.

 

Plaintiffs do not dispute that Plaintiff—Kanna Kingdom was not a party to the Lease agreement and does not provide evidence that controverts that the Lease Agreement applies only to residential use. Plaintiff has not raised a triable issue of material fact as to whether Defendants owed a duty to Plaintiff—Kanna Kingdom.

 

Therefore, the court GRANTS the Motion for Summary Judgment as to Plaintiff—Kanna Kingdom.

 

Motion for Summary Judgment as to Plaintiff—Zoe Dooley:

 

The Motion states, “Plaintiff Zoe Dooley’s claim in this action is that of negligent infliction of emotional distress under a bystander theory under the third cause of action, however, Plaintiffs have not and cannot establish that Plaintiff Zoe Dooley was at the scene.” (Motion; 17:15-17.

 

Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668 (Thing), states, “We conclude, therefore, that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury  victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. These factors were present in Ochoa and each of this court's prior decisions upholding recovery for NIED.” (Footnotes 10, 11, and 12 omitted.)

 

Plaintiffs do not dispute that Plaintiff—Zoe Dooley was not present at either of the thefts. (PSS Nos. 26, 27, 28, and 29.)  Plaintiffs have not demonstrated a triable issue of material fact as to Plaintiff—Zoe Dooley’s cause of action for negligent infliction of emotional distress.

 

Therefore, the court GRANTS the Motion for Summary Judgment as to Plaintiff—Zoe Dooley.

 

Based on the above, the court GRANTS Defendants’ (Essex Property Trust, Inc., Essex Management Corporation, and Essex Skyline Holdings, LLC) Motion for Summary Judgment, or in the Alternative, Summary Adjudication filed on 2-15-22 under ROA No. 57.

 

Defendants are to give notice.