Case Number: BC708860 Hearing Date: January 22, 2020 Dept: 32

JIN HEE LEE,

Plaintiff,

v.

SERIGNE BASSIROU ATHJ, et. al.

Defendants.

Case No.: BC708860

Hearing Date: January 22, 2020

[TENTATIVE] order RE:

Ralphs’ Motion for Summary judgment or, in the alternative, summary adjudication

BACKGROUND

A. Complaint

This is a personal injury action brought by Plaintiffs Jin Hee Lee (“Jin”) and Byeong Sug Yun Lee (“Byeong”) (collectively, “Plaintiffs”) against Defendants Serigne Bassirou Athj (“Athj”), Juan Andrade (“Andrade”), HKBY LLC (“HKBY”), Ralphs Grocery Company (“Ralphs”), 3780 Wiltern Center LLC (“Wiltern”), City Valet Parking Systems (“CVPS”), Universal Protection Service (“Universal”), Realtyland Company, Inc., and Simon Security Services Patrol, Inc. (collectively, “Defendants”). The operative pleading is the First Amended Complaint (“FAC”) filed on August 28, 2018. The FAC asserts causes of action for (1) negligence, (2) premises liability, and (3) loss of consortium. Plaintiffs allege that a vehicle owned by Andrade and driven by Athj made contact with Jin as he was walking in a parking structure (“Parking Structure”) owned and operated by Defendants.

B. Cross-Complaints

On October 5, 2018, Ralphs filed a cross-complaint against Athj, Andrade, and HKBY. Ralphs’ cross-complaint asserts causes of action for (1) implied indemnity, (2) contribution and apportionment, (3) express indemnity, and (4) declaratory relief.

On October 10, 2018, Wiltern filed a cross-complaint against CVPS and Roes 1-20. Wiltern’s operative cross-complaint is the Second Amended Cross-Complaint filed on May 23, 2019. This pleading asserts causes of action for (1) equitable indemnity, (2) contribution, (3) declaratory relief, and (4) apportionment of fault.

On October 12, 2018, HKBY filed a cross-complaint against Athj, Andrade, and Wiltern. The cross-complaint asserts causes of action for (1) implied indemnity, (2) contribution and indemnity, (3) declaratory relief, (4) negligence, and (5) express indemnity.

On April 15, 2019, Universal filed a cross-complaint against Moes 1-20. The cross-complaint asserts causes of action for (1) implied indemnity, (2) contribution, (3) declaratory relief, and (4) express indemnity.

On May 21, 2019, CVPS filed a cross-complaint against Athj. The cross-complaint asserts causes of action for (1) equitable indemnity, (2) implied indemnity and contribution, (3) declaratory relief, and (4) apportionment of fault.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted 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 a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

STATEMENT OF FACTS

A. Ralphs’ Lease

On November 4, 1994, Ralphs entered into a lease agreement (“Lease”) with then-owner Wiltern Associates to lease a store premises (“Store Premises”) at 670 South Western Avenue, Los Angeles, CA. (Prebanda Decl. ¶ 2, Ex. D.) In the Lease, Wiltern Associates agreed to develop and construct the Store Premises and the adjacent Parking Structure. (Ibid.) The Lease remains in full force and effect. (Ibid.)

The Lease addresses plan approvals for the construction of the Parking Structure. The Lease states in pertinent part: “Landlord shall submit to Tenant, for Tenant’s approval, the Preliminary Plans, Building Elevations, Grading Plans, Site Work Plans (including the working drawings and plans and specifications for the Parking Structure) and Sign Plan, all of which must conform to Tenant’s Criteria.” (Fradkin Decl. Ex. 1, p. 20.) The Lease continues: “If Tenant disapproves any matter or plan submitted, Landlord shall diligently use commercially reasonable efforts to cure such disapproval and shall promptly notify Tenant of the results of such efforts.” (Id., p. 23.)

The Lease addresses configuration of the “Common Area,” which the Lease defines as “all of the Project and its improvements” including the Parking Structure. (Fradkin Decl. Ex. 1, p. 4.) The Lease states: “The Common Area shall be under the management, supervision, and control of Landlord. Except as provided herein, however, Landlord shall not make any use of, or change to the Common Area without Tenant’s prior approval. Tenant may withhold such approval, in its sole discretion, when Landlord desires to make any of the following changes: (a) Any change in the location or arrangement of traffic lanes, driveways or curb cuts in the Common Area or the Parking Structure, as shown on the Site Plan; or (b) Any reduction in the number of parking spaces in the Project below the number of spaces to be originally provided, or any change in the location or size of the parking spaces in the first two levels of Parking Structure designated as exclusive to Tenant as set forth on the Site Plan.” (Id., p. 54.)

The Lease addresses parking. The Lease prohibits the landlord from making changes to Ralphs’ portion of the Parking Structure absent Ralphs’ consent: “No charge of any kind shall ever be made for ingress to, egress from, or parking in the Tenant’s portion of the Parking Structure, unless ordered by a Governmental Authority or unless expressly agreed to by Tenant or expressly agreed to by Tenant in the Parking Plan.” (Fradkin Decl. Ex. 1, p. 56.) The Lease authorizes Ralphs to institute parking control measures: “Tenant shall be permitted to institute parking control measures with respect to the parking areas established for the exclusive use of Tenant and its customers.” (Id. at 56-57.) The Lease gives Ralphs’ the exclusive right to park in certain areas of the Parking Structure: “Tenant and its employees and invitees shall have the exclusive right to park on Level 1 (street level) and Level 2 of the Parking Structure (which levels shall contain no less than 200 parking spaces, 9’6” wide)….” (Id. at 57.) The Lease also states that the Parking Structure shall be managed in accordance with a parking plan subject to Ralphs’ approval: “The Parking Structure shall be managed and operated in accordance with a parking plan (‘Parking Plan’) which shall be subject to Tenant’s approval. In the event Landlord shall ever desire to modify the Parking Structure, or to modify the Parking Plan in a manner which would increase the parking demand made upon the Parking Structure, Tenant shall have the right to approve of said modification, which approval Tenant may withhold in its sole and arbitrary discretion.” (Ibid.)

Finally, the Lease allows Ralphs to take over maintenance of the Parking Structure. “If Tenant at any time, or from time to time, is reasonably dissatisfied with the quality or cost of Landlord’s operation or maintenance of the Common Area, Tenant shall have the right to give Landlord notice of such dissatisfaction, specifying why Landlord’s operation or maintenance is unsatisfactory. If, thirty (30) days after the date of such notice, Landlord’s operation or maintenance shall continue to be unsatisfactory, Tenant shall have the right (but not any obligation) to take over the operation and maintenance of the Common Area from Landlord….” (Fradkin Decl. Ex. 1, p. 65.)

B. CC&Rs concerning Parking Structure

By May 1999, the Parking Structure and the Store Premises were owned by 3780 Wilshire Boulevard, LLC. (DUMF 9.) In May 1999, 3780 Wilshire Boulevard, LLC transferred ownership of the Store Premises to 670 South Western Avenue, LLC. (Ibid.) That same month, 3780 Wilshire Boulevard, LLC and 670 South Western Avenue entered into a Declaration of Covenants, Restrictions and Easements (“CC&Rs”) which granted 670 South Western Avenue and its tenant Ralphs an easement for use of the Parking Structure. (Prebanda Decl. ¶ 4, Ex. E.) Specifically, under the CC&Rs, Ralphs was granted a “perpetual nonexclusive irrevocable easement with a right of entry to use the Common Area for the parking of motor vehicles, pedestrian and vehicular travel, ingress and egress, and for the other Common Area uses provided for in the Ralphs Lease.” (Prebanda Decl. Ex. E, p. 11.)

The CC&Rs authorize Ralphs to, inter alia, (1) place and operate a recycling center in the Parking Structure and (2) compel the Parking Structure owner to tow any vehicles parking in Ralphs’ exclusive parking area. (Fradkin Decl. Ex. 2, p. 10.)

C. Present Owners

In July 2006, 3780 Wilshire Boulevard, LLC grant-deeded the Parking Structure to Defendant Wiltern. (Bozan Decl. Ex. B.) Wiltern is the current Parking Structure owner. (DUMF 13.)

In 2007, HKBY became the owner of the Store Premises. (DUMF 12.) HKBY is the current property owner. (Ibid.) In 2016, Ralphs notified HKBY of its intent to exercise its option to extend the Lease to November 1, 2021. (DUMF 12.) Ralphs still operates a store at that location. (Ibid.)

D. Incident

On February 2, 2018, Jin was injured while walking in the Parking Structure. (DUMF 1.) Jin was struck by a car operated by Athj. (Ibid.) At the time of the incident, signage in the Parking Structure stated “Ralphs Customer Parking Only” and a Ralphs sign hung above the Parking Structure’s entrances. (See Fradkin Decl. Ex. 5.)

DISCUSSION[1]

Ralphs moves for summary judgment on the FAC or, in the alternative, summary adjudication of each cause of action therein. The FAC asserts two causes of action against Ralphs: (1) negligence and (2) loss of consortium. Both causes of action are founded on premises liability, a form of negligence. (See FAC ¶¶ 28, 49.) Specifically, Plaintiffs allege that Ralphs had a duty “to keep the Premises in a good, safe and proper condition” (FAC ¶ 28) and that Ralphs breached this duty by (1) permitting the Parking Structure to possess a dangerous and unsafe condition, viz. an overcrowded parking structure, (2) failing to warn of the dangerous condition, and (3) failing to utilize proper safeguards to ensure pedestrian safety. (Ibid.)

Ralphs contends that the two aforementioned causes of action are without merit because Ralphs owed Jin no duty of care. Specifically, Ralphs claims that it did not own, lease, or control the Parking Structure, the area where Jin was injured.

Premises liability “is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “A person who possesses or controls land has a duty to exercise reasonable care to maintain the land in a reasonably safe condition.” (University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 444. This test is “stated in the alternative.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162.) Hence, “[a] defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (See ibid.)

“A person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own.” (CACI 1002.) Whether a defendant’s degree of control over a premises is sufficient is a question of fact. (See University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 445; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 8.) “Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)

In support of this motion, Ralphs cites to (1) the Lease which authorized Ralphs to lease the Store Premises, not the Parking Structure, and which vested the duty of keeping the operation and maintenance of the Common Area with the landlord, Wiltern, and (2) the CC&Rs which granted Ralphs an easement to use the Parking Structure but reiterated that Wiltern “shall be solely responsible for the operation, maintenance and costs of a system or systems” for the Parking Structure (Prebanda Decl. Ex. E, p. 10). This evidence supports Ralphs’ motion.

Plaintiffs respond with contrary evidence of control. Plaintiffs emphasize certain provisions in the Lease which “remain[] in full force and effect.” (Prebanda Decl. ¶ 2.) The Lease required the landlord to submit construction plans, such as the plans and specifications for the Parking Structure, to Ralphs for its approval. (Fradkin Decl. Ex. 1, p. 20.) In the event of a disapproval, the landlord had to “use commercially reasonable efforts to cure the disapproval.” (Id. at 21.) The Lease prohibits the landlord from making any use of or change to the Parking Structure without Ralphs’ prior approval. (Id. at 54.) Under the Lease, Ralphs can withhold its approval “in its sole discretion” when the landlord wants to make changes to the Parking Structure’s traffic lanes, driveways, number of parking spaces, location of the parking spaces, or the size of the parking spaces. (Ibid.) The Lease gives Ralphs and its customers the exclusive right to park in certain areas of the Parking Structure. (Id. at 57.) The Lease authorizes Ralphs to institute parking control measures with respect to its exclusive areas of the Parking Structure. (Id. at 56-57.) The Lease requires the landlord to obtain Ralphs’ approval to modify the Parking Structure’s Parking Plan. (Ibid.) Finally, the Lease authorizes Ralphs to take over the maintenance of the Parking Structure if it is reasonably dissatisfied with the quality or cost of the landlord’s operation of the same and if the landlord’s operation continues to be unsatisfactory after being given notice. (Id. at 65.)

Plaintiffs point to the effect of the CC&Rs — Ralph obtained a “perpetual nonexclusive irrevocable easement” to use the Parking Structure. (Prebanda Decl. Ex. E, p. 11.) While the CC&Rs mostly focus on the relationship of HKBY and Wiltern, the CC&Rs additionally authorize Ralphs to (1) place and operate a recycling center in the Parking Structure and (2) compel the Parking Structure owner to tow any vehicles parking its exclusive parking area. (Fradkin Decl. Ex. 2, p. 10.)

Finally, Plaintiffs present photographs of the Parking Structure. These photographs illustrate that, at the time of the incident, signage in the Parking Structure stated “Ralphs Customer Parking Only” and a Ralphs sign hung above the Parking Structure’s entrances. (See Fradkin Decl. Ex. 5.)

By submitting this evidence of control which shows (1) exclusive use of a portion of the Parking Structure, (2) the ability to control the Parking Structure’s layout, (3) the ability to institute parking control measures in portions of the Parking Structure, and (4) commercial benefit realized from the Parking Structure,[2] Plaintiffs have created a triable issue of material fact as to whether Ralphs exercised sufficient control over the Parking Structure such that Ralphs owed a duty of care to Jin.

In reply, Ralphs argues that its obligations under the Lease are irrelevant to this dispute because the Parking Structure is no longer part of the leased premises and its landlord, HKBY, no longer has the ability to perform certain common area obligations over the structure. (Reply at 3.) Ralphs claims the controlling document is the CC&Rs. The Court is unpersuaded. The Lease, which Ralphs’s representative characterized as “in full force and effect” (Prebanda Decl. ¶ 2), possesses an initial term of 20 years with options to extend. (Fradkin Decl. Ex. 1, p. 30.) The Lease states that “each of the covenants and conditions hereof shall inure to the benefit of and shall bind (as the case may be) each of the successors and assigns of the respective parties hereto… All of the agreements of this Lease shall be covenants running with the land, burdening and benefiting Landlord’s and Tenant’s respective interests.” (Fradkin Decl. Ex. 1, p. 85.) Accordingly, when Wiltern Associates, the Lease’s original landlord, conveyed the leased premises, subsequent landlords remained bound by the terms of the Lease. Ralphs has not explained why a CC&Rs between two other entities — HKBY’s predecessor and Wiltern’s predecessor — would have any effect on this conclusion.

CONCLUSION

Ralphs’ motion for summary judgment on the FAC or, in the alternative, summary adjudication of each cause of action stated therein is DENIED.

[1] Plaintiffs’ single objection to the Prebanda Declaration is sustained.

Ralphs’ objections to the Fradkin Declaration (Nos. 22-23) are overruled. Ralphs’ objections to the Avrit Declaration were immaterial to the disposition of this motion. (CCP § 437c(q).)

[2] “Where, as here, there is evidence that petitioners received a commercial advantage from property they apparently had a leasehold right to use (which use by their customers they at least passively encouraged) and where their business was itself the attraction for both customers and loiterers, it is overly simplistic for the issue of control to be resolved solely by reference to a property boundary line and the fortuitous circumstance that the attack on Spencer took place just 10 feet beyond it. While we cannot conclude that these circumstances establish that petitioners did exercise control over the adjacent lot, we do find that they are sufficient to raise an issue of fact that must be resolved by a jury.” (Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 667.)