Case Number: LC099107 Hearing Date: June 04, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

GLENN WEINSTEIN,
Plaintiff(s),
vs.

REZA SARAFZADEH, et al.,

Defendant(s).

CASE NO.: LC099107

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #43
June 4, 2014

Defendants, Reza Sarafzadeh and Yasmin Sarafzadeh’s Motion for Summary Judgment is Denied.

1. Undisputed Facts
Plaintiff, Glenn Weinstein filed this action against Defendants, Reza Sarafzadeh and Yasmin Sarafzadeh for injuries sustained when she fell in her shower. The facts of the case are simple and relatively undisputed. Plaintiff was a tenant in Defendants’ apartment building. There were two lighting fixtures in Plaintiff’s bathroom – a vanity light fixture over the mirror, and a light fixture with the fan. Plaintiff typically used the vanity fixture, as the fixture over the fan did not provide sufficient light. For a period of at least months, possibly more than a year, prior to the accident, Plaintiff had a problem with the vanity light going on and off. It appears this was caused because the bulb in the fixture was too high in wattage, and the fixture had to shut off the bulb from time to time to allow the fixture/bulb to cool down. On the date in question, Plaintiff, an elderly woman, was in the shower when the bulb went off. She fell attempting to get the light to go back on.

2. Motion for Summary Judgment
Defendants move for summary judgment, contending:
Issue No. 1: Plaintiff’s cause of action for Negligence – Premises Liability fails because defendants did not owe a duty to repair or replace the bathroom vanity light bulb as a covenant of the residential lease agreement and mere failure to repair after notice or a promise to repair imposes no tort liability on a landlord.
Issue No. 2: Plaintiff’s cause of action for Negligence – Premises Liability fails because even if there was a gratuitous duty to repair or replace the bathroom vanity light bulb, defendants did not breach such a duty and exercised reasonable care in replacing the light bulb with the light bulb provided by plaintiff.
Issue No. 3: Plaintiff’s cause of action for Negligence – Premises Liability fails because defendants’ gratuitous replacement of the bathroom vanity light bulb with a light bulb provided by plaintiff did not proximately cause plaintiff to fall and injure herself.
Issue No. 4: Plaintiff’s cause of action for Negligence – Premises Liability fails because defendants did not owe a duty to warn of an alleged dangerous condition where plaintiff was fully aware of the bathroom vanity light bulb powering off and on for several years before she fell, but continued to rely on the same vanity light and did not use the other bathroom fan light.

a. Initial Note
As an initial note, Defendant lists four separate issues for adjudication, but lists the same sixteen facts in support of each issue. Thus, if any fact is disputed, the entire motion for summary judgment/adjudication must be denied.

b. Evidentiary Objections
Defendants filed evidentiary objections with their reply papers. Objections 5, 6, 7, 8, and 13 are sustained; the remaining objections are overruled. Notably, many objections concern the fact that Plaintiff, in deposition, testified that she did not know the wattage of the light bulb in her unit, but now testifies that it was a 150-watt light bulb. Plaintiff has resided in her apartment at all times. She knows whether and when the light bulb was changed. The light bulb was inspected by Plaintiff’s expert, John J. Nicholas, and found to be a 150-watt light bulb. Plaintiff knows that the bulb was not changed, and can therefore conclude that the bulb was 150 watts at all relevant times. Notably, the inspection took place after her deposition ,so it makes sense that she would not have known the wattage at her deposition, but would know it now.

Other objections center on the testimony of Nichols, and the contention that Nichols is attempting to usurp the Court’s function in determining whether and to what extent Defendants owed Plaintiff a duty. The Court has not considered any portion of Nichols’s testimony where he specifically declares that Defendants owed Plaintiff a duty (see sustained objections above), but finds that most of his testimony is factual in nature and therefore worthy of consideration.

c. First Three Issues
Defendants’ motion for summary judgment/adjudication of the first three issues is denied because the entire motion is premised on the contention that it was the light bulb, as opposed to the fixture, that was the problem. There are triable issues of material fact in this regard. Notably, Plaintiff explains, in opposition to numerous facts in the separate statement, “During these inspections [of the light bulb/fixture], Mynor Alvarez [Defendants’ manager] would get up on the sink, look up at the bathroom light, take out the bulb, put in the bulb, and tell Plaintiff ‘Glenn, it’s not the fixture. We – you – we have an electrical problem. It’s in the building.” This evidence is supported by the deposition testimony of Plaintiff, at page 139, as well as her own declaration, at ¶8. Notably, there is no objection to the evidence.

Because there are triable issues of material fact concerning whether the problem was caused merely by Plaintiff’s obligation to change the light bulb or whether it was caused by a problem with the fixture/electricity in the building, the motion for summary judgment on the first three grounds is denied.

While not necessary to the ruling in light of the foregoing dispute, the Court notes, additionally, that it appears the cause of the problem was that a 150-watt light bulb, supplied by Plaintiff but installed by Defendants’ manager, was placed into a fixture that could only handle 40 watts worth of power. Defendants fail to cite any persuasive authority to establish that they are not liable for their manager’s decision to place this light bulb in the fixture, even if it was provided by Plaintiff. Notably, common sense says that the manager’s decision to do this, coupled with Plaintiff’s ongoing complaints to both the manager and to Defendant personally that the light bulb was turning on and off, would give rise to a duty on Defendants’ part to inspect and/or remedy the problem.

d. Lack of Duty to Warn/Correct Problem
Defendants’ fourth argument in support of their motion for summary judgment is that they owed Plaintiff no duty in connection with the subject light bulb/light fixture because the defect was patent, as opposed to latent, and Plaintiff was aware of the defect. Defendants essentially argue that Plaintiff knew the light bulb went on and off without notice, and therefore was obligated to turn on the fan light and/or take other steps to ensure the bathroom was well-lit when she was using the bathroom.

Defendants’ argument on this issue is found at pages 19-20 of their moving brief. Pages 19-20 of the brief contain absolutely no case authority, and therefore fail to establish the scope of Defendants’ duties in this regard.

Defendants’ reply, perhaps recognizing the triable issues of material fact concerning the light bulb vs. the light fixture, focuses almost entirely on the patent vs. latent defect issue. The issue is addressed at length from page 5 until page 9 of the reply brief. The reply brief also contains extensive citations to authority on this issue. This authority, however, is raised for the first time in reply, giving Plaintiff no opportunity to respond.

The motion for summary judgment on the ground that Defendants had no duty to warn of and/or remedy a patent defect is denied in light of the failure to provide sufficient authority on the issue with the moving, as opposed to reply, papers.

Dated this 4th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court