Judge: William A. Crowfoot, Case: 19STCV27145, Date: 2022-07-27 Tentative Ruling

Case Number: 19STCV27145    Hearing Date: July 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

MARY LYNNE PRIEST,

                        Plaintiff,

            vs.

 

GOOR ARIE KADOSH, Trustee of the KADOSH LIVING TRUST; et al.,

 

                        Defendants.

 

[AND RELATED CROSS-ACTIONS]

 

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      CASE NO.: 19STCV27145

 

[TENTATIVE] ORDER RE: DEFENDANT/CROSS-DEFENDANT TOP ROOFING INC’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

Dept. 27

1:30 p.m.

July 27, 2022

 

I.         INTRODUCTION

          On August 2, 2019, Plaintiff Mary Lynne Priest (“Plaintiff”) initiated this action against Goor Arie Kadosh, Trustee of the Kadosh Living Trust (“Kadosh”), asserting the following causes of action: (1) general negligence, and (2) premise liability.

          On November 5, 2019, Defendant Kadosh filed a cross-complaint against Cross-Defendant The Witches Brew Cocktail Lounge, LLC, asserting the following causes of action: (1) breach of contract – indemnity, (2) breach of contract – defense, (3) equitable implied indemnity, (4) equitable comparative indemnity, (5) implied contractual indemnity, (6) breach of contract, and (7) declaratory relief. On December 20, 2019, Kadosh dismissed The Witches Brew Cocktail Lounge from the cross-complaint. On January 2, 2020, Kadosh amended his cross-complaint by adding Top Roofing, Inc. as a named cross-defendant.

          On August 12, 2020, Top Roofing Inc. filed a cross-complaint against unnamed cross-defendants sued by their fictitious names, asserting the following causes of action: (1) indemnity, (2) contribution and apportionment, and (3) declaratory relief.

          On November 23, 2020, Kadosh amended his cross-complaint by adding Fratelli’s Italian Restaurant as a named cross-defendant.

          On July 27, 2021, Plaintiff amended her complaint by adding Top Roofing, Inc. and Fratelli’s Italian Restaurant as named defendants.

          On February 14, 2022, Top Roofing, Inc. (“TRI”) filed the instant motion for summary judgment, or in the alternative, summary adjudication on the grounds that there are no triable issues of material fact to support Plaintiff’s claim against it, and consequently, Kadosh’s cross-complaint against it fails.

 

II.      FACTUAL BACKGROUND

As alleged in the complaint, Plaintiff was injured at her place of work, The Witches Brew Cocktail Lounge LLC, on October 4, 2018, and the building where the incident took place is owed by Kadosh. The complaint further alleges that Plaintiff sustained injuries after a portion of the ceiling fell onto Plaintiff.

 

III.      LEGAL STANDARD

In reviewing a motion for summary judgment, 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.) 

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “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, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) 

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.) 

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

IV.     EVIDENTIARY OBJECTIONS

          Plaintiff objects to portions of TRI’s evidence that was submitted in support of its motion for summary judgment. The Court overrules Objection Nos. 1, 5-9, 11, 13 and sustains Objection Nos. 2-4, 10, 12-13, 15-17.

V.        DISCUSSION

  1. Issue 1: Whether TRI Owned, Leased, Occupied or Controlled the Subject Property Where Plaintiff was Injured.

TRI moves for summary adjudication on the ground that a triable issue of material fact as to whether TRI had any right to control or manage the premises does not exist.

“[A] defendant’s duty to maintain land in a reasonably safe condition extends to land over which the defendant exercises control, regardless of who owns the land. ‘As long as the defendant exercised control over the land, the location of the property line would not affect the defendant’s potential liability.’” (University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 445, internal citation omitted.)

Here, TRI contends that it does not own or lease the subject property. (UMF Nos. 7-8, 15; Tarkowski Decl. ¶ 8, Exhs. 7-8; Ravid Decl. ¶16.) TRI further asserts that none of its employees were present the time of the incident. (UMF Nos. 10, 13, 17; Ravid Decl. ¶¶ 12, 15, 18.) TRI further asserts that prior to the incident TRI and its employees had performed work at the subject property in February 2017, and in connection with its service contract with Kadosh, it only performed work on the roof. (UMF Nos. 2, 10-11, 16; Ravid Decl. ¶¶ 5, 12-13, 18.) However, because the Court has sustained Plaintiff’s objections to TRI’s evidence that it did not perform any repairs or inspections to the interior of the subject property, TRI has not met its evidentiary burden in showing that it did not exercise control over the subject area. Based on TRI’s employee’s own deposition testimony, there is a triable issue of material fact as to whether TRI exercised control over the subject property by inspecting the ceiling and performing insufficient repairs to the air conditioning ducts. (Coletti Decl. ¶ 5, Exh. 3: Bocanegra Depo at pp. 20:1-11, 21:18-19, 22:6-9, 24: 5-20, 24:24-25:24, 26:20-27:25, 32:2-9, 53:2-54:5, 58:9-13, 66:10-12.)

Accordingly, because TRI has not met its burden, the Court denies its motion for summary adjudication on this issue.

  1. Issue 2: Whether TRI Breached Any Duty of Care Owed to Plaintiff or Was the Cause of Plaintiff’s Injuries.

TRI also moves for summary adjudication on the ground that a triable issue of material fact as to whether TRI had breached any duty or caused Plaintiff’s injuries does not exist.

The elements of negligence are duty, breach, causation, and damages.  (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

          As stated above, there is a triable issue of material fact as to whether TRI controlled the subject area where the incident occurred. Additionally, the evidence suggests that TRI was negligent in their repairs, which resulted in Plaintiff’s injuries. (Burns Decl. ¶¶ 17-25; Coletti Decl. ¶ 5, Exh. 3: Bocanegra Depo at pp. 20:1-11, 21:18-19, 22:6-9, 24: 5-20, 24:24-25:24, 26:20-27:25, 32:2-9, 53:2-54:5, 58:9-13, 66:10-12.) Moreover, TRI’s argument that Kadosh had a non-delegable duty as the owner of the subject property is not persuasive. An independent contractor can owe a duty to a third party where the independent contractor is negligent in its repairs or assumes the owner’s duty to inspect. (Seo v. Overhead Doors (2002) 97 Cal.App.4th 1193, 1206.)

          Accordingly, because TRI has not met its burden, the Court denies its motion for summary adjudication on this issue.

  1. Issue 3: Whether Kadosh’s Cross-Complaint Fails Against TRI.

Lastly, TRI moves for summary adjudication on the issue that Kadosh is unable to show Plaintiff’s injuries were caused by TRI’s breach of duty. However, because the Court has found Plaintiff’s claims against TRI survive summary judgment, there is a triable issue of material fact as to whether Kadosh is entitled to indemnification from TRI.

Accordingly, the Court denies TRI’s motion for summary adjudication on this issue.

VI.      CONCLUSION

In light of the foregoing, the Motion for Summary Judgment is DENIED, and the alternative Motion for Summary Adjudication is also DENIED. 

 

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.