Case Number: BC652629 Hearing Date: May 24, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

OMAR HERMENEGILDO,

Plaintiff(s),

vs.

CALIFORNIA POTTERY AND TILE WORKS, INC., ET AL.,

Defendant(s).

CASE NO: BC652629

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

May 24, 2019

Background Facts

Plaintiff, Omar Hermenegildo filed this action against Defendants, California Pottery and Tile Works, Inc. and John Raymond McLean for wrongful death arising out of the death of his daughter on Defendants’ property. Plaintiff subsequently added Hugh Blunden as Doe 1 in the action. Blunden owns the property where the accident occurred; California Pottery and McLean leased the property from Blunden.

Plaintiff’s daughter, Karen Hermenegildo, was attending a “bring your child to work” day with her mother, Mireya Mendoza, on the day of the accident. Decedent was playing outside when she somehow encountered a five hundred-pound door, which was leaning up against a fence. The door fell onto Decedent, crushing her to death.

Plaintiff’s complaint includes causes of action for wrongful death, negligence, and premises liability.

Motion for Summary Judgment

At this time, Blunden moves for summary judgment on the complaint, contending he did not owe a duty to protect Decedent from encountering and being crushed by the subject door. Primarly, he contends he had no duty because the incident was not foreseeable. Alternatively, he moves for summary adjudication of each cause of action in the complaint.

Plaintiff opposes the motion, arguing duty cannot be decided as a matter of law when the facts are in dispute, and Defendant owed Decedent a duty of care under the facts of the case.

b. Evidentiary Objections

Defendant submitted evidentiary objections with his reply papers. Objections 1, 7, 8, 9, 10, and 14 are sustained; the remaining objections are overruled. The Court’s ruling, below, does not turn on its ruling on the objections.

c. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this 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 defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant’s initial evidentiary showing may “consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

d. Duty

Defendant argues he is entitled to judgment as a matter of law because he, as an out-of-possession landlord, owed no duty to Decedent to prevent the subject accident. Defendant argues the accident was not foreseeable, and therefore he cannot be held liable for the death.

Scope of Out-of-Possession Landlord’s Duty

Plaintiff relies on Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714-716 to support his position that Defendant owed a duty to prevent the subject accident. Lopez contains a comprehensive statement concerning whether and to what extent a commercial landlord owes a duty to third parties, and therefore the Court will quote the ruling at length herein. The Court held (citations omitted):

In premises liability cases, summary judgment properly may be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of property alleged to be in a dangerous or defective condition. (citation) In the instant case, there is no dispute that Friedman is the owner of the premises leased to Scattaglia. Thus, to the extent the trial court may have concluded that Friedman had no duty to exercise due care to protect third persons, such as Lopez, who came onto the leased premises, the trial court erred. (citation)

Portillo v. Aiassa (citation) contains a good discussion of the duties owed by a commercial landlord. “A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises. [Citation.] This duty of care also extends to the general public. ‘A lessor who leases property for a purpose involving the admission of the public is under a duty to see that it is safe for the purposes intended, and to exercise reasonable care to inspect and repair the premises before possession is transferred so as to prevent any unreasonable risk of harm to the public who may enter. [Citations.] An agreement to renew a lease or relet the premises … cannot relieve the lessor of his duty to see that the premises are reasonably safe at that time.’ [Citation.] [¶] Where there is a duty to exercise reasonable care in the inspection of premises for dangerous conditions, the lack of awareness of the dangerous condition does not generally preclude liability. [Citation.] ‘Although liability might easily be found where the landowner has actual knowledge of the dangerous condition ”[t]he landowner’s lack of knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.“ ‘ [Citation.]”

Thus, a commercial landowner “cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. [Citations.] At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. [Citations.] Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain condition, the landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger.” (Citation) “However, the landlord’s responsibility to inspect is limited. Like a residential landlord, the duty to inspect charges the lessor ‘only with those matters which would have been disclosed by a reasonable inspection.’ [Citations.] The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection.” (Citation)

Analysis

The crux of the holding in Lopez is that a commercial landlord has a duty to inspect for foreseeable dangers when the landlord first leases the premises, and again each time the lease is renewed. In this case, the parties’ written lease was for a period of five months in 2014. Fact 11. The accident occurred in 2016. Fact 1. The lessors continued to occupy the premises from inception of the lease until after the accident (fact 16), but it does not appear there was ever another signed lease agreement. It is, therefore, not clear when Blunden and the other defendants renewed the lease.

Blunden argues it was not foreseeable that the door would fall on someone for a variety of reasons, including that the property was not open to the public and that Blunden did not know children would be allowed on the property. The parties vigorously dispute the facts relating to these issues. The Court finds, however, that these issues present a red herring. If a five hundred pound door is leaning precariously against a fence in a way that can be dislodged by a small child, a reasonable jury could say that the door’s position was dangerous. There is no evidence before the Court showing when the door was first placed up against the fence.

When the two issues (unclear when the lease was renewed and unclear when the door was placed against the fence) are considered together, the result is that the Court cannot say, as a matter of law, that Defendant showed he had no duty to ensure the door was secured or removed. It is up to the jury to decide whether and when Defendant was obligated to conduct inspections, and whether or not the door presented a foreseeably dangerous condition that Defendant was obligated to correct. The motion for summary judgment is therefore denied. The alternative motion for summary adjudication is premised entirely on the same arguments made in support of summary judgment, and is also denied.

Defendant is ordered to give notice.