Case Name: Sanchez v. County of Santa Clara, et al.
Case No.: 16CV300604

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

This is an action for premises liability. According to the allegations of the complaint, on October 8, 2015, plaintiff Sandra Sanchez (“Plaintiff”) visited 1919 Senter Road in Jose, owned, operated, managed, maintained and/or controlled by defendants County of Santa Clara (“County”), JP Dinapoli Companies, erroneously sued as Dinapoli Companies & Ruwan (“Dinapoli”) and D&D Ranch (“D&D”) (collectively, “Defendants”), where she slipped on the floor of the premises, injuring herself. (See complaint, ¶ Prem L-1, p.4.) On October 3, 2016, Plaintiff filed a form complaint against Defendants, asserting a cause of action for premises liability with counts for:

1) Premises liability (against D&D and Dinapoli);
2) Negligence (against D&D and Dinapoli); and,
3) Dangerous condition of public property (against County).

Defendants D&D and Dinapoli move for summary judgment. Defendant County also separately moves for summary judgment.

Defendant’s burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Defendants D&D and Dinapoli’s motion for summary judgment

Defendants D&D and Dinapoli move for summary judgment on the ground that Plaintiff cannot demonstrate that they owed a duty to her because they did not have actual knowledge of the dangerous condition prior to Plaintiff’s injury. D&D and Dinapoli cite to Garcia v. Holt (2015) 242 Cal.App.4th 600, which states:

Duty is a necessary element of a cause of action for premises liability. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411.) …

Public policy precludes landlord liability for a dangerous condition on the premises which came into existence after possession has passed to a tenant. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510.) This is based on the principle that the landlord has surrendered possession and control of the land to the tenant and has no right even to enter without permission. (Id. at p. 511.) It would not be reasonable to hold a lessor liable if the lessor did not have the power, opportunity, and ability to eliminate the dangerous condition. (Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, 780.)

“[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. ‘“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.” [¶] Limiting a landlord’s obligation releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.’” (Salinas v. Martin, supra, 166 Cal.App.4th at p. 412.)

(Garcia v. Holt (2015) 242 Cal.App.4th 600, 604–605.)

In support of its motion, D&D and Dinapoli present the declaration of Eire Stewart, the Director of Property Management for Dinapoli, who states that: Dinapoli manages real properties owned by its affiliated partners, including D&D; in the course of management (Stewart decl., ¶ 2), Dinapoli negotiates and executes all contracts, performs inspections, and contracts for repairs and maintenance related to those properties (id. at ¶ 2); D&D and Dinapoli undertook and executed contracts with Universal Janitorial to provide nighttime janitorial services to the property leased to County at 1919 Senter Rd. (Stewart decl., ¶¶ 3, 5-6, exh. 1); D&D leases the entire premises at 1919 Senter Rd. to County (Stewart decl., ¶ 4, 7, exh. 2); during the execution of the 1994 lease agreement and its renewal in 2013, D&D and Dinapoli performed reasonable inspections of the property to ensure safety before relinquishing control of the premises (Stewart decl., ¶ 7, exh. 2); neither D&D nor Dinapoli maintained an office at 1919 Senter Rd. and did not have any employees, partners or agents there (Stewart decl., ¶ 8); pursuant to the lease, County was required to maintain the interior in a reasonably safe and fit condition (Stewart decl., ¶ 9); no one at D&D or Dinapoli had any notice or knowledge of any alleged dangerous condition or incident at 1919 Senter Rd. until the complaint was filed and served a year later in 2016 (Stewart decl., ¶ 10); no one at D&D or Dinapoli retained any control or possession of the property located at 1919 Senter Rd. after the original lease of the property in 1994 or at the renewal of the lease in 2013 (Stewart decl., ¶ 11); and, Dinapoli performs quarterly inspections of all property leased to County, including the property located at 1919 Senter Rd., including inspections that cover both the outside and inside of the property such as lobbies, restrooms, stairways, offices, floors, and fixtures, and frequently conducts other inspections in response to requests by County for repairs or maintenance (Stewart decl., ¶ 12).

D&D and Dinapoli also present the declaration of Zheying Li, who attaches the initial complaint, the entirety of the lease agreement and portions of Plaintiff’s deposition testimony in which she states that: she did not see a puddle at the time of her fall; and, she assumed she slipped in water.

Plaintiff objects to paragraph 12 of the Stewart declaration and to the lease agreement attached as Exhibit 2 of the Li declaration on the grounds of lack of foundation, lack of personal knowledge, speculative, hearsay and relevance. As to objection number 2 to paragraph 12 of the Stewart declaration, the objection is OVERRULED. Objection number 1 to the entirety of the lease agreement is SUSTAINED. Objection 3 was to evidence that might be presented in reply; however, no such evidence was presented.

Here, D&D and Dinapoli meet their initial burden to demonstrate that they have relinquished control of the property to County and it did not have any knowledge or notice of any condition or incident until a year later in 2016 when it was served with a complaint.

In opposition, Plaintiff does not file an opposition specific to D&D and Dinapoli. Instead, she files a consolidated opposition, in which she asserts: Defendants fail to meet their initial burden; a jury could conclude that it was foreseeable that by never inspecting the property or making efforts to maintain the property, a dangerous condition such as a puddle of liquid could occur in the lobby; Plaintiff testified that Defendants were aware of the puddle and did not get it cleaned up in time; and, a landlord has a duty to inspect the property.

Plaintiff argues that D&D and Dinapoli failed to meet their initial burden because they failed to present adequate evidence that they actually inspected the property at any time, or otherwise used due care or acted reasonably by their inaction and failure to inspect. However, D&D and Dinapoli provided evidence of inspections at the inception of the initial lease and the renewal, and also frequently conducts inspections in response to requests for maintenance or repair from County. Plaintiff’s argument that D&D and Dinapoli failed to meet their initial burden lacks merit.

Plaintiff’s second argument is also dependent on her assertion that D&D and Dinapoli “never inspect[ed] the Property.” As D&D and Dinapoli present evidence that they have, in fact, inspected the subject property, this argument likewise lacks merit.

Plaintiff also presents her own deposition testimony to establish “that Defendants were aware of the puddle.” However, a reading of Plaintiff’s deposition testimony does not indicate that an agent or employee of D&D or Dinapoli had any such notice. Thus, Plaintiff fails to demonstrate the existence of a triable issue of material fact as to this issue.

As to Plaintiff’s final argument regarding a duty to inspect, again, D&D and Dinapoli presented evidence demonstrating that they did, in fact, make frequent inspections. In opposition, Plaintiff fails to present evidence demonstrating the existence of a triable issue of material fact as to this issue.

As Plaintiff fails to demonstrate the existence of a triable issue of material fact regarding a duty by D&D and Dinapoli owed to Plaintiff, defendants D&D and Dinapoli’s motion for summary judgment is GRANTED.

Defendant County’s motion for summary judgment

Defendant County moves for summary judgment on the ground that it neither created the dangerous condition, nor had actual or constructive notice of the dangerous condition a sufficient time prior to the injury such that it could have taken measures to protect against the dangerous condition. Government Code section 835 states that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or, (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code § 835.) Section 835.2, subdivision (b) states that “[a] public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code § 835.2.)

County argues that a negligent or wrongful act or omission of its employees did not create the dangerous condition, and that it did not have actual or constructive notice of the dangerous condition under section 835.2. In support of its assertion that none of County’s employees created the dangerous condition, County presents Plaintiff’s own deposition testimony in which she states that she slipped in a puddle and that the puddle was reportedly urine. (See Pl.’s depo, pp. 34:2-6.) County also presents the declaration of Trudy Felix, the Office Management Coordinator for County who oversaw clerical workers and operations of the lobby, who inspected the subject area, and found evidence that a homeless or otherwise incontinent person had urinated himself on a seat in the lobby, leaving a small puddle on the seat, and then walked across the hallway to a lobby window, leaving barely visible streaks of liquid—and not a puddle—on the lobby floor. (See Felix decl., ¶¶ 6-14.) County demonstrates that its employee did not create the dangerous condition through negligence or a wrongful act.

County also argues that it did not have actual or constructive notice of the dangerous condition. In support of this argument, the declaration of Ms. Felix indicates that she was the first and only employee to inspect the lobby and notice possible liquid on the floor, and that she nor any of County’s employees received any notice prior to her fall, and she received notice about 5-15 minutes after Plaintiff’s fall. (See Felix decl., ¶¶ 4-7.) Additionally, Plaintiff testifies that she did not see the puddle or liquid prior to her fall, so County argues that it could not have discovered the condition and its dangerous character beforehand. (See Pl.’s depo, pp. 32:22-23, 91:8-10.) County is correct as to constructive notice. However, as to actual notice, County presents portions of Plaintiff’s deposition testimony in which she states that the supervisor, Ms. Felix, told her “[t]hat somebody didn’t get there on time to put any kind of a sign or something up to let somebody, I guess, know that there was liquid on the floor.” (Pl.’s depo, pp.39:5-14 (asking about Plaintiff stating that “someone was going to clean it up but never got the chance to”); 94:14-22 (stating “[t]hat someone didn’t get notified in time so they could put, I guess, some kind of a – I don’t know what they put there to let you know that something was on the ground”).) Although the Court agrees that this statement is hearsay, County has itself presented the statement. Thus, County itself demonstrates the existence of a triable issue of material fact as to the issue of actual notice. Accordingly, County’s motion for summary judgment is DENIED.