Case Number: EC057130 Hearing Date: June 13, 2014 Dept: NCD

TENTATIVE RULING
#4
EC 057130
SHEVALIER v. RAPHAEL

Defendants Steven and Shannon Rangel’s Motion for Summary Judgment

TENTATIVE:
Defendants’ evidentiary objections are OVERRULED.

Motion for summary judgment is GRANTED.
As to the first and third causes of action, plaintiff has failed to present sufficient facts which would support a reasonable inference that the moving defendants landlord owed a duty to plaintiff which was breached.

Accepting the facts as set forth by plaintiff as true, including that he was in a landlord-tenant relationship with defendants, that he was injured when he slipped and fell on a puddle of dog urine left by the pet of one of his co-tenants, and that prior to the incident he repeatedly complained to the landlord defendants about the dogs peeing and pooping on the premises, told them that this could cause someone to fall, and his declaration stating that “Based on my repeated complaints to the Rangels regarding the dog pee and poop inside the house, their acknowledgement that someone could slip on the dog pee and their assurance to me that they would do something to fix the problem, I believe that they understood that the dog pee constituted a regularly reoccurring dangerous condition at the Subject Property,” the court finds these facts insufficient to establish a duty on the part of the landlords in this circumstance. [See UMF No. 5, and Response thereto, Shevalier Decl., para. 4, Ex. A, and paras. 11-14, and UMF Nos. 2, 7 and evidence cited].

As acknowledged by plaintiff and the authorities he cites, the general rule is that even in a landlord-tenant relationship, “the public policy of this state generally has precluded a landlord’s liability for injuries to his tenant or his tenant’s invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession.” Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, quoting Schwartz v. McGraw Edison Co. (1971) 14 Cal.App.3d 767 (overruled on other grounds in Ray v. Alad Corp. (1977) 19 Cal. 3d 22).

Plaintiff argues that this case falls within the exception set forth in case law such as Uccello, which involved the imposition of a duty on a landlord in a dog bite case.

However, the cases relied upon by plaintiff require a plaintiff claiming such an exception to establish not only that a condition was dangerous, and that defendants had actual knowledge of such a condition, but that the landlord had the “opportunity and the ability to eliminate the dangerous condition being created by the tenant,” that is a showing that “the knowledge by the landlord preceded a renewal of the tenancy (as in Uccello) or that the rental agreement could otherwise have been terminated prior to the injury.” Rosales v. Stewart (1980) 113 Cal.App. 3d 130, 134-135.

Plaintiff has offered no specific evidence which could support a reasonable inference that he notified the landlords of any problem at a time such that the landlords could have terminated the tenancies of plaintiff’s co-tenants prior to plaintiff’s alleged accident.

In addition, an independent evaluation of the factors set forth in Rowland v. Christian (1968) 69 Cal.3d 108 with respect to the existence of a duty here would favor not imposing such a duty.

With respect to the second cause of action for breach of the implied warranty of habitability, defendants have established that plaintiff’s claims are barred by Civil Code 1941.2 and plaintiff has failed to address defendants’ argument or raise triable issues of material fact. Accordingly, as each cause of action is subject to summary adjudication as to the moving defendants, summary judgment in their favor is appropriate here.

Causes of Action: from Third Amended Complaint
1. Negligence
2. Breach of Warranty of Habitability
3. Premises Liability

FACTUAL BACKGROUND:
Plaintiff Allen Shevalier alleges that he resides in a house in Sun Valley as a subtenant of defendant Nicole Raphael, and that Raphael executed an agreement with the landlords of the home, defendants Steven and Shannon Rangel, stating that Raphael would take full responsibility for her animals at the property. Plaintiff also entered into a contract with Raphael under which Raphael agreed to keep the house in a clean manner, that the animals would not go to the bathroom in the house, and that if they did, it would be cleaned up immediately. Plaintiff also alleges that the Rangel defendants had notice of a rampant fecal problem within the premises, and that he had informed defendant that urine removal was deficient. On August 13, 2011, plaintiff slipped and fell on dog urine, suffering personal injuries.

Plaintiff also alleges that on August 25, 2011, Raphael attempted to poison him by tampering with some milk he had purchased, and was an abusive roommate, causing plaintiff emotional distress.

ANALYSIS:
Defendants Steven and Shannon Rangel argue that they were mere owners of the home and had no duty toward plaintiff to clean up after defendant Raphael’s pets, but to the contrary, Raphael expressly agreed to hold the Rangel’s harmless from any damage or injury caused by her pets. Defendants argue that since plaintiff cannot establish that the Rangel’s owed him any duty, he cannot establish any cause of action against them.

First Cause of Action—Negligence and Third Cause of Action—Premises Liability
To state a claim for negligence, plaintiff must allege the following elements: Defendant owed a legal duty of care to plaintiff; defendant breached the duty (negligent act or omission); plaintiff was injured as a result (proximate or legal cause); and damages. Palmer v. Crafts (1936) 16 Cal.App.2d 370, 375; Witkin §537; Judicial Council Form 982.1(1).

A premises liability cause of action will lie where the following elements are established: Defendant was the owner, occupant or lessor of the property; defendant was negligent in the use, maintenance or management of such premises; defendant’s negligence was a cause of plaintiff’s injury; and damages. Judicial Council Form, 982.1 (5). Under Civil Code § 1714(a) “Every one is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property…”

The facts here are basically undisputed that plaintiff entered into an agreement to sublease residential premises from defendant Raphael, but that plaintiff paid rent directly to defendants, who provided him with receipts for the rent payments. [UMF Nos. 5, and Response thereto, Shevalier Decl, para. 4, Ex. A]. Raphael owned two dogs, and another subtenant who moved into the property, Hutch, also owned a puppy. [UMF Nos. 2, 7 and evidence cited, Undisputed]. Plaintiff’s complaint arises out of an incident which occurred on August 13, 2011, when plaintiff alleges he slipped and fell on a puddle of dog pee located in the living room of his residence. [See Shevalier Decl., para. 14].

Defendants argue that they owed no duty to plaintiff to keep the premises free of dog urine, and did not have actual notice of any hazard or dangerous condition. Defendant Steven Rangel submits his declaration in which he states,
“ALLEN SHEVALIER never complained that dog urine on the floor was a slip hazard or was dangerous. Whenever I would go to the Penrose property, the floor was clean. I did not observe dog feces or urine.”
[Steven Rangel Decl., para. 9].

Shannon Rangel also submits a declaration in which she makes the same statement. [Shannon Rangel Decl, para. 9].

In opposition, plaintiff submits his own declaration in which he states:
“11. Prior to the August 13, 2011 fall, I repeatedly complained to the Rangel Defendants about the three dogs peeing and pooping inside the Subject Property.
12. I also told the Rangels that the dog pee on the floor could cause someone to slip and fall.
13. Based on my repeated complaints to the Rangels regarding the dog pee and poop inside the house, their acknowledgement that someone could slip on the dog pee and their assurance to me that they would do something to fix the problem, I believe that they understood that the dog pee constituted a regularly reoccurring dangerous condition at the Subject Property.”
[Shevalier Decl., paras. 11-13].

The issue is whether these facts as stated by plaintiff, if taken as true, establish that the landlords owed no duty with respect to the premises as to plaintiff.

Defendants argue that the liability alleged against them here is based on nonfeasance, as opposed to misfeasance, in effect based on defendants’ failure to provide beneficial intervention rather than personally creating the alleged dangerous condition, no liability can be imposed unless there was a special relationship between the parties.

However, as argued by plaintiff, this is a situation where the facts could raise a reasonable inference that the Rangel defendants were in fact the landlords of plaintiff, as they accepted his rent and gave plaintiff receipts for those payments, and, according to plaintiff, told him they were his landlords. [Shevalier Decl., paras. 3, 4, Ex. A].

If it is determined that defendants were in a landlord-tenant relationship with plaintiff, this would give rise to a special relationship. The court may then evaluate the factors governing the imposition of a duty set forth in Rowland v. Christian and determine whether a duty existed, as discussed below.

Defendants also argue that even if they were the landlords, the law generally precludes a landlord’s liability for injuries to a tenant or a tenant’s invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. Defendants rely on Schwartz v. McGraw Edison Co. (1971) 14 Cal.App.3d 767, 784 (overruled on other grounds in Ray v. Alad Corp. (1977) 19 Cal. 3d 22), in which the Second District found, with respect to a heater which the tenants had installed after assuming possession of the property, and which caused injuries to the tenant’s guest, the trial court had properly found that the landlord owed no duty.

It does appear that in this circumstance, since plaintiff and his co-tenants had possession of the premises, and the landlords had no right of control over the dogs, or the mess they created, no duty can be established here.

Defendants then argue that it was not foreseeable that plaintiff would slip and fall on dog urine, which appears to be an invitation to apply the Rowland v. Christian factors to this case, although defendants do not provide this analysis, either in the moving papers or in the reply.

With respect to the existence of this kind of direct duty, Restatement section 343 provides:
“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it. . . .”

The court then determines the existence of a duty by evaluating the standard factors set forth in Rowland v. Christian (1968) 69 Cal.3d 108:
(1) The foreseeability of harm;
(2) The degree of certainty that the plaintiff suffered injury;
(3) The closeness of the connection between the plaintiff’s injury and the landowner’s conduct;
(4) The moral blame attached to the landowner’s conduct;
(5) The policy of preventing future harm;
(6) The burden on the landowner and the consequences to the community of imposing a duty on the landowner; and
(7) The availability, cost, and prevalence of insurance for the risk.
Rowland, at 111-112.

Here, the foreseeability of harm that someone would slip on dog pee on the floor, knowing he lives with three dogs and that they often pee on the floor, is not entirely apparent. While it is certainly foreseeable that a puddle on the floor could lead to a slip and fall injury, the harm was not under these circumstances necessarily plainly foreseeable to the landlords. With respect to the degree of certainty that plaintiff suffered injury, defendants suggest that plaintiff may not have actually suffered injury, or brought it on himself, as they had served him with a three day notice to pay rent or quit on August 12, 2011, and he, perhaps too coincidentally, alleges he slipped the following day. [See UMF Nos. 8, 9, and evidence cited]. With respect to the closeness of the connection between plaintiff’s injury and the landowner’s conduct, had the landowners evicted the other tenants before the incident, the injury would have been prevented, but, as discussed below, plaintiff has offered no evidence that this was possible. As to moral blame, plaintiff argues that moral blame attaches here as instead of addressing the obvious problem, the landlords took steps to mitigate their own liability by having the tenants expressly accept liability for any problems caused by their pets. This does not really implicate moral blame, and it does not seem particularly morally reprehensible to allow tenants to own pets and to require co-tenants who voluntarily move into such a situation to work out any difficulties caused by the pets cohabitating with the pet-owner, who is on premises, and has day-to-day control of the premises. The policy of preventing future harm may be served by imposing a duty on landowners to evict tenants with pets which pee on the premises, but the harm does not appear particularly foreseeable. Finally, with respect to the burden on the landowner and the consequences to the community of imposing a duty, it appears that the burden on the landowner to have a duty to evict a tenant under these circumstances would be quite significant, and the consequences to the community may well be that landlords are unwilling to permit tenants to keep pets, even where their co-tenants initially agree to such a circumstance which does not appear to be a desirable consequence.

Plaintiff relies on case law under which a landlord may be held responsible for personal injuries caused by a tenant’s dog, where the landlord had actual knowledge of the dangerous propensities or viciousness of such a dog. See Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.

The Uccello case arises out of a dog bite. The analogy is not apt here, as a dog bite apparently is presumed unforeseeable in the absence of actual knowledge, and case law following Uccello, cited but not discussed by defendant, which evaluates the existence of actual knowledge of dangerous propensity expressly excepts from any definition of actual knowledge of “dangerous propensity,” conduct of a dog which would be considered unalarming “normal dog behaviors,” which would likely include peeing on the floor. In Yuzon v. Collins (2004) 116 Cal.App.4th 149, the Second District suggested that canine behaviors which (in the absence of previous incidents) would not be considered sufficient to provide “actual notice” of vicious propensity include barking, jumping against a fence behind which the dogs were kept, and even running through open doors and scaring the neighbors. (“The sorts of behaviors described in the record were normal dog behaviors and were not so alarming that Collins must have known (and had been aware of the behaviors) of [the dog’s] vicious propensities.”) Yuzon, at 164.

“Normal dog behaviors” appears to be the kind of conduct of which plaintiff is claiming defendants had actual knowledge here, not of any unusual situation concerning the temperament or propensities of the dogs for violence, so there is a strong argument that there was no “dangerous condition” involved here.

Moreover, Uccello creates an exception to the general principal set forth in Schwartz, above, which the court of appeal suggested should be carefully circumscribed:
“Historically, the public policy of this state generally has precluded a landlord’s liability for injuries to his tenant or his tenant’s invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition. ( Schwartz v. McGraw-Edison Co., 14 Cal.App.3d 767 [92 Cal.Rptr. 776] 30 Cal.Jur.2d, Landlord and Tenant, § 159, pp. 307-309; Rest., Torts, § 355 et seq.; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 615, pp. 2895-2896.)

[*511] The rationale for this rule has been that property law regards a lease as equivalent to a sale of the land for the term of the lease. (See com. (a) to Rest., Torts, § 355.) As stated by Prosser: “In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. Consequently, it is the general rule that he is under no obligation to anyone to look after the premises or keep them in repair, and is not responsible, either to persons injured on the land or to those outside of it, for conditions which develop or are created by the tenant after possession has been transferred. Neither is he responsible, in general, for the activities which the tenant carries on upon the land after such transfer, even when they create a nuisance.” (Prosser, Law of Torts (4th ed.) p. 400.)

To this general rule of nonliability, the law has developed a number of exceptions, such as where the landlord covenants or volunteers to repair a defective condition on the premises ( Scholey v. Steele, 59 Cal.App.2d 402, 405 [138 P.2d 733]; Minolletti v. Sabini, 27 Cal.App.3d 321, 324 [103 Cal.Rptr. 528]), where the landlord has actual knowledge of defects which are unknown and not apparent to the tenant and he fails to disclose them to the tenant ( Shotwell v. Bloom, 60 Cal.App.2d 303, 309-310 [140 P.2d 728]), where there is a nuisance existing on the property at the time the lease is made or renewed (Burroughs v. Ben’s Auto Park, Inc., 27 Cal.2d 449, 453-454 [164 P.2d 897]), when a safety law has been violated ( Grant v. Hipscher, 257 Cal.App.2d 375, 382-383 [64 Cal.Rptr. 892]), or where the injury occurs on a part of the premises over which the landlord retains control, such as common hallways, stairs, elevators or roof ( Johnston v. De La Guerra Properties, Inc., 28 Cal.2d 394, 400 [170 P.2d 5]).

A common element in these exceptions is that either at or after the time possession is given to the tenant the landlord retains or acquires a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury. In these situations, the law imposes on the landlord a duty to use ordinary care to eliminate the condition with resulting liability for injuries caused by his failure so to act. (Cf. Brennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796 [111 Cal.Rptr. 122].)

It appears that the facts of this case do not fall within any of the recognized exceptions, and the circumstance of a dog peeing, as opposed to exhibiting vicious propensities, is clearly distinguishable on public policy grounds. In addition, to the extent plaintiff attempts to establish an exception to this rule where possession has been turned over to the tenant, plaintiff has failed to submit facts which would establish that the landlords could have terminated the tenancies of the other tenants following being placed on notice in sufficient time to prevent the harm. For example, there is no offer of evidence as to the date plaintiff complained of the alleged problem, or that the other tenancies, which appear to have been month to month, could have been terminated by the landlord in time to avoid the harm.

Plaintiff also relies on Rosales v. Stewart (1980) 113 Cal.App. 3d 130, in which the Second District found the trial court had improperly sustained a demurrer without leave to amend, where the allegations were that a landlord had actual knowledge of the acts of a tenant in discharging a firearm in the backyard of a rented dwelling and the danger the tenant posed, finding that while these allegations were alone insufficient, plaintiffs should have been permitted leave to amend. The Second District found:
“In the pleadings (as heretofore set forth) it is alleged that the landlord had knowledge of the acts of the tenant and of the danger existent. This is not, in itself, sufficient to impose liability upon the landlord. As recognized in the cases cited by appellants, the landlord must also have the opportunity and the ability to eliminate the dangerous condition being created by the tenant. We agree with the trial court that the first amended complaint is insufficient to establish this necessary element.

[*135] In Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504, the court said that the landlord’s failure to terminate the tenant’s month-to-month lease or, at least, to threaten such termination if he did not stop harboring a dangerous dog, subjected the landlord to liability. In effect the case held that the landlord is under a duty to third persons to do all that he legally can to get rid of a dangerous condition on the leased premises, even if it means getting rid of the tenant.

There is no allegation that the knowledge by the landlord preceded a renewal of the tenancy (as in Uccello) or that the rental agreement could otherwise have been terminated prior to the injury. 1 The only control over the property possessed by the landlord was this power to terminate the tenancy.
Rosales, at 134-135.

In Bisetti v. United Refrigeration Corporation (1985) 174 Cal.App.3d 643, the Second District affirmed the trial court’s granting of summary judgment in favor of a commercial landlord, where a trespasser had been injured by vats of acid kept on the premises by the tenant. The Second District found that even if a declaration submitted by the landlord that it had no awareness of the existence of the acid vats on the premises supported competing inferences, “such knowledge, would not, by itself, constitute a basis for liability for the landlord.” Bisetti, at 649. The court went on to note:
“The premises had been leased to J. C. Paint Stripping for metal stripping activities. The acid vats were used for that purpose.

[*650] There is nothing in the record to reflect that any person would have been endangered by the vats unless that individual became immediately adjacent to them in an unsafe manner so as to touch and come in contact with their contents. Thus, the existence of the vats did not cause any danger to the public at large or even persons safely comporting themselves on the premises. The vats were no more dangerous than any normal mechanical equipment in industry, when used in the proper and cautious manner for which it is intended.”
Bisetti, at 649-651.

This case also suggests an obligation on the part of the plaintiff opposing a landlord’s summary judgment motion on this ground of actual knowledge of a dangerous condition to establish that the alleged condition was beyond the scope of the conditions permitted in the lease, over which the landlord could have or should have exercised some control. That showing is not made here.

The authorities provided support a theory that plaintiff has failed to present facts which overcome the presumption that the landlord has no duty, as plaintiff’s facts are too vague to support a reasonable inference that the alleged knowledge by the landlord preceded renewal of the tenancies of the pet owners, which would have been the only control of the property possessed by the landlords.

The problem with the theory that the landlords expressly undertook a duty remains that plaintiff has failed to come forward with specific evidence which would establish that any failure to perform an express promise caused the damages, as it is not clear when such a promise was made, and whether at that time the landlords had sufficient time to do something, which plaintiff argues was to evict the tenants, before the harm occurred. The motion is therefore granted, as plaintiff has failed to establish that any duty was owed by these defendants.

Second Cause of Action—Breach of Warranty of Habitability

The Rangels argue that as landlords they are not responsible for repairing problems caused by the tenant’s own doing, citing Civil Code section 1941.2, which provides:
a. No duty on the part of the landlord to repair a dilapidation shall arise under section 1941 or 1942 if the tenant is in substantial violation of any of the following affirmative obligations, provided the tenant’s violation contributes substantially to the existence of the dilapidation or interferes substantially with the landlord’s obligation under section 1941 to effect the necessary repairs:
1. To keep that part of the premises which he occupies and uses clean and sanitary as the condition of the premises permits.
2. To dispose from his swelling unit of all rubbish, garbage, and other waste, in a clean and sanitary manner.
3. To properly use and operate all electrical, gas, and plumbing fixtures and keep them as clean and sanitary as their condition permits.
4. Not to permit any person on the premises, with his permission, to willfully or wantonly destroy, deface, damage, impair, or remove any part of the structure or dwelling unit or the facilities, equipment, or appurtenances thereto, nor himself to do any such thing.
5. To occupy the premises as his abode, utilizing portions thereof for living, sleeping, cooking, or dining purposes only which were respectively designed or intended to be used for such occupancies.

Defendants rely on Green v. Superior Court (1974) 10 Cal.3d 616, in which the California Supreme Court addressed the issue whether a breach of the implied warranty of habitability could be raised as a defense in an unlawful detainer claim. The Court determined the issue was relevant to whether back rent was in fact owed by a tenant, so could be raised in an unlawful detainer proceeding, regardless of its summary nature.

In discussing the duty itself, the Court noted
“Under the implied warranty which we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease. This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that “bare living requirements” must be maintained. In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability we now recognize.”
Green, at 637-638.

Plaintiff has failed to directly respond to this argument, so has failed to set forth any breach of the warranty of habitability based on any other circumstance other than the alleged dog urine, which appears to substantially violate the tenant’s obligation “to keep that part of the premises which he occupies and uses clean and sanitary….” The motion is therefore granted as to all causes of action.