Filed 11/6/19 Young v. Hai Ky Noodle House, Inc. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

BLUE YOUNG,

Plaintiff and Appellant,

v.

HAI KY NOODLE HOUSE, INC., et al.,

Defendants and Respondents.

A152364

(San Francisco City & County

Super. Ct. No. CGC-16-550623)

Plaintiff Blue Young sued defendants Hai Ky Noodle House, Inc. (Noodle House) and H&H Partners, LLC (H&H) for injuries he allegedly sustained when he tripped on metal doors set into the sidewalk in front of the restaurant. He appeals from two adverse judgments—a summary judgment in favor of H&H, the owner of the premises, and a judgment following a jury trial entered in favor of Noodle House, the tenant. As to the summary judgment, Young asserts the trial court erred in concluding H&H owed him no duty, absent actual knowledge of the asserted dangerous condition created by the tenant. As to the judgment after trial, Young asserts the court erred in not instructing the jury on willful suppression of evidence. We affirm.

BACKGROUND

Noodle House, a restaurant in San Francisco’s Tenderloin district, has rented its premises from H&H since 2000. In the sidewalk in front of the restaurant, there are metal doors which open from the inside, allowing access to stairs that lead to the basement. Young alleged he “tripped over [the] metal trap door which was opened and situated . . . in front of the . . . Noodle House,” sustaining injuries. In his response to a special interrogatory, Young stated, “After finishing lunch at a restaurant, I was walking down the sidewalk. There were two grates covering a freight elevator in the sidewalk in front of Hai Ky Noodle House that were closed. They are opened by hydraulics/electric mechanism for deliveries. As I was walking looking straight ahead, the grate farthest from me began to open without warning. My foot got stuck on the open grate and I fell. My foot was stuck and I fell onto the metal panel.”

At trial, Young testified he was walking in front of the Noodle House when his “foot ran into something.” He assertedly had “no recollection of what happened” after that because he was “unconscious for some period of time.” When he came to, he was lying on top of the grate which was elevated eight inches above the ground. Immediately thereafter, Young went into the Noodle House and spoke with the manager.

The manager testified Young “barged into the restaurant,” screaming and “using profane language about me,” and claiming “he had tripped and fell outside of our restaurant” and hurt his knee. The manager observed “a little scratch with, like, redness around it.” She gave Young the phone number of her husband and owner of the restaurant, Huey Hua, because Young “was very hostile” and she was scared.

After Young called Hua and “made demands,” Hua “asked [a] personal friend who is an attorney to call him back and deal with it.” Hua explained “knowing that we are in the Tenderloin . . . generally we are very protective of our own family in there.” Hua testified “[t]here was no communication [with Young] after that day.”

Nearly two years after the incident, Young filed the instant lawsuit, alleging negligence and premises liability. Both defendants moved for summary judgment. The trial court granted the motion as to H&H, concluding “as a matter of law H&H did not owe a duty to Mr. Young to safely operate the metal doors nor did H&H Partners owe a duty to Mr. Young to make the metal doors safer by installing a buzzer or flashing lights to alert pedestrians.” The court denied the motion for summary judgment as to Noodle House.

At trial, Noodle House introduced evidence showing the metal doors do not open hydraulically or electrically, but must be opened manually. Hua testified the doors are made of steel and weigh over a hundred pounds. The evidence also showed the doors are locked from the inside, and so heavy they must be opened from the outside by two people. The doors are used for the delivery of heavy equipment, not food deliveries. They were last opened two years before the incident for a delivery of refrigerators. After the incident, an employee opened the doors to clean them. The jury found Noodle House was not negligent.

DISCUSSION

Summary Judgment in Favor of H&H

Timeliness of Appeal

The trial court’s grant of summary judgment in favor of H&H completely removed it from the lawsuit—that is, there were no remaining claims between Young and H&H, and there were no cross-claims involving H&H. Accordingly, H&H submitted a proposed written ruling that granted its motion for summary judgment, dismissed the action as to H&H in its entirety with prejudice, and directed that “judgment shall be entered forthwith.”

Since the summary judgment disposed of all the claims involving H&H, it was entitled to immediate entry of judgment, regardless of the fact claims remained pending between other parties to the lawsuit. (See Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9; see generally Smalley, et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 10:330.5, p. 10-142.) The trial court nevertheless, and inexplicably, struck the language in the proposed order directing that judgment be entered in H&H’s favor.

The trial court did not, however, strike the language dismissing the action in its entirety as to H&H with prejudice. Under Code of Civil Procedure section 581d, dismissals, when ordered and filed by the court, “shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case.” (See e.g., Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167, 1173, fn. 3.) If the court’s dismissal order, indeed, constituted a judgment, the time to appeal as to H&H commenced on notice of entry of that order.

However, whether Code of Civil Procedure section 581d applies in this particular context is unclear. (Cf. Lavine v. Jessup (1957) 48 Cal.2d 611, 615–616 [Code Civ. Proc., § 581d pertains only to dismissals referenced in § 581] with Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 361 [reviewing appealable dismissal entered after order granting summary judgment]; County of Los Angeles v. Stone (1961) 198 Cal.App.2d 640, 644 [same].)

We therefore will resolve our appellate jurisdiction in Young’s favor, and consider the merits of his appeal as to H&H.

Summary Judgment

Young maintains the trial court erred in concluding “actual notice of the dangerous condition, rather than constructive notice, was required in order to hold . . . H&H liable.” (Uppercase omitted.) He claims H&H’s “failure to establish that the area was actually inspected in the thirteen years before the incident is sufficient to show . . . H&H’s inspection policies were negligent and thus ascribe constructive notice of the dangerous condition to H&H.” (Uppercase omitted.)

In granting summary judgment, the court stated: “[A]s a matter of law H&H did not owe a duty to Mr. Young to safely operate the metal doors nor did H&H Partners owe a duty to make the metal doors safer by installing a buzzer or flashing lights to alert pedestrians. To establish liability on a landlord for a third party’s injury to a dangerous condition, ‘a plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’ (Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131–[11]32, [ disapproved in part on another ground in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 247–250].) H&H presented evidence that it had no notice that the metal doors would be suddenly opened . . . and Mr. Young has not presented any evidence creating a triable issue.”

“ ‘ “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.” ’ ” (Day v. Lupo Vine Street, L.P. (2018) 22 Cal.App.5th 62, 69.) With regard to landlords, “reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.)

Young asserts H&H had a duty to inspect the premises “in the thirteen years before the incident.” The cases on which he relies, however, provide that a commercial landlord has a duty to inspect when the lease is executed or is renewed. A landlord is “ ‘obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger.’ ” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715.) “ ‘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.’ ” (Ibid.) “ ‘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. . . .’ ” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.)

The undisputed facts showed that Noodle House had leased the premises from H&H since 2000. Noodle House had “control over the doors [Young] allegedly tripped upon.” Young did not dispute that H&H “had never received any information or complaints that [Noodle House] improperly used the doors or ever opened them from below or opened them without persons standing guard above.” And Young does not assert H&H failed to inspect the premises before transferring possession to Noodle House. In short, there was simply no evidence H&H had any knowledge of the supposedly dangerous condition.

Accordingly, the trial court did not err in granting H&H’s motion for summary judgment.

Judgment for Noodle House

Young makes a single claim of error as to the judgment for Noodle House following the jury verdict in its favor—he maintains the court erred in refusing to give CACI No. 204, regarding willful suppression of evidence. He asserts Noodle House failed to preserve a surveillance videotape of the location, because the videotape automatically recorded over itself on a weekly basis. According to Young, it was incumbent upon Noodle House to remove and store the tape after he complained he had been injured by the doors. He therefore claims “the trial judge’s conclusion that there was ‘no evidence’ of willful suppression is simply wrong.”

“A party is entitled to request that the jury be instructed correctly on any of the party’s theories of the case that are supported by substantial evidence.” (Douglas v. Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392, 408.) We review the denial of a jury instruction de novo. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 418.) “A refusal to instruct the jury is reversible error if it is probable that the error prejudicially affected the verdict.” (Douglas, at p. 408.)

Young grounds his suppression claim on a document request seeking “any and all store[d] videotapes showing the general location of the INCIDENT for six hours before to six hours after the INCIDENT.” Noodle House responded: “Plaintiff alleges that his ‘INCIDENT’ occurred on February 27, 2014. Defendant does not have any such documents to produce because any video plays over any recording on a weekly basis and thus any such recording was played over within a week following the Plaintiff’s alleged ‘INCIDENT’ with a non-existent ‘freight elevator.’ ” At trial, Hua, the owner of Noodle House, testified the video cameras inside the restaurant at the time of the incident “loop[ed] around once a week.” There was a non-working video camera outside the restaurant used to deter graffiti.

CACI No. 204 provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” This instruction is derived from Evidence Code section 413, which provides: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.” (Evid. Code, § 413.)

The difficulty with Young’s position is that there was no evidence Noodle House intentionally concealed or destroyed evidence. While Young claims “the question of whether the suppression of evidence was deliberate is of no moment,” the suppression of evidence addressed by Evidence Code section 413 must, in fact, be “willful.” (Evid. Code, § 413.) Thus, instructing the jury with CACI No. 204 “is appropriate if there is evidence of willful suppression, that is, evidence that a party destroyed evidence with the intention of preventing its use in litigation.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434, italics added.) There was no evidence Noodle House had any intent to destroy evidence to prevent its use in litigation.

Young maintains the mere fact Noodle House failed to “preserve” any videotape recorded on the day of the claimed incident, constituted evidence of willful suppression. Relying on In re Napster, Inc. Copyright Litigation (N.D. Cal. 2006) 462 F.Supp.2d 1060 (Napster), he maintains Noodle House had a duty to preserve the videotape because it knew or reasonably should have known it was relevant to litigation. He asserts Noodle House was “on notice immediately” of his injury, his intent “to proceed with an insurance claim,” his allegation that the incident “happened differently than Respondent asserted,” and “notice from their own attorney the day after the incident.”

In Napster, an investor in the company entered into a “Common Interest and Defense Agreement” because there were “several lawsuits . . . pending against Napster” at the time of the investment. (Napster, supra, 462 F.Supp.2d at p. 1064.) The plaintiffs in the lawsuits claimed the investor “had a duty to preserve Napster-related emails beginning” at the time of the investment. (Id. at p. 1067.) About a month after making the investment, the CEO of Universal Music Corp. told the investor “the recording companies intended to sue Napster’s investment firms if the alleged copyright infringement continued.” (Id. at p. 1064.) The following month, a lawsuit was filed against Napster and the investor. (Ibid.) The investor did not dispute it deleted Napster-related e-mails generated during the approximate one-month period after its investment. (Id. at p. 1066.) In considering whether sanctions were appropriate, the district court concluded “ ‘a litigant has a duty to preserve evidence it knows or should know is relevant to imminent litigation.” (Id. at p. 1068.) “The duty to preserve documents attaches ‘when a party should have known that the evidence may be relevant to future litigation.’ [Citations.] The future litigation must be ‘probable,’ which has been held to mean ‘more than a possibility.’ ” (Ibid.) Thus, the court concluded the investor did not have a duty to preserve evidence until the Universal Music Corp. CEO told him “the recording industry would be targeting Napster’s investors.” (Id. at p. 1069.)

The circumstances in the instant case are entirely different. There is no evidence that Noodle House should have known, during the one-week period in which the videotape automatically recorded over itself, that it was likely to face a lawsuit two years later. Simply because Young complained to the manager, left “messages for the owner of the restaurant,” and received a return call from the owner’s attorney the day after the incident, does not establish that litigation was “probable.”

In fact, Young testified he went into the Noodle House after the incident and spoke to the manager to alert them of a dangerous situation—“[t]hat’s why I went in there, to let them know that this was a dangerous situation.” “I felt like I got my point across.” Young further testified that when the owner’s attorney called, he told him “what had happened.” He did not testify that he threatened to file a lawsuit. Hua similarly testified that when he spoke with Young, Young did not say he was going to sue. Nor is there any evidence Young threatened he was going to do so anytime during the ensuing week. Indeed, Young did nothing to pursue a lawsuit for nearly two years. Thus, there was no evidence Noodle House knew in the first week after the incident that future litigation was “ ‘probable’ ” or “ ‘more than a possibility.’ ” (Napster, supra, 462 F.Supp.2d at p. 1068.)

Accordingly, there was no evidentiary basis that warranted instruction with CACI No. 204, and the trial court did not err in denying his instructional request.

DISPOSITION

The judgment is affirmed. Costs on appeal to defendants.

 

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Sanchez, J.

A152364, Young v. Hai Ky Noodle House