Case Name: Nina Ovadia v. Kechen Cheng, et al.
Case No.: 17-CV-305512

I. Background

This is a premises liability action. Plaintiff Nina Ovadia (“Plaintiff”) injured her left arm “requiring surgery with plates and screws” on a “protruding garden window” located above the water spigot in her garden. (Compl. at p. 4.) Plaintiff alleges she hit the window with her arm when she went to use the water spigot. (Ibid.) Plaintiff alleges her landlord Kechen Cheng (“Defendant”) “negligently placed [the] protruding garden window directly above [the water spigot].” (Ibid.) Plaintiff asserts a single cause of action for premises liability against Defendant. In her form complaint, Plaintiff marked boxes indicating she is asserting three different counts against him, particularly: (1) negligence; (2) willful failure to warn; and (3) dangerous condition on public property.

Currently before the Court is Defendant’s motion for summary judgment. Defendant states he moves for summary judgment “on the following issues[,]” particularly the issue of whether he owed Plaintiff a duty. (Not. of Mot. at p. 1:27.) In other words, Defendant moves for summary judgment on the ground the action is without merit because Plaintiff cannot establish an essential element of her claim, specifically the element of duty.

II. Standard of Review

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories [or] depositions,” or matters subject to judicial notice. (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subd. (b)(2); see also Code Civ. Proc., § 437c, subd. (p)(2) [“The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”].)

“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.” (Code Civ. Proc., § 437c, subd. (c).)

III. Summary of Evidence

Defendant owns the premises located at 1032 Cassia Way in Sunnyvale, California (the “Premises”). (Cheng Decl., ¶¶ 1-2.) In August 2015, Defendant rented the Premises to Plaintiff and her husband. (Cheng Decl., ¶ 3; Ovadia Decl., ¶ 2.) On the Premises, there is a backyard with a lawn. (Cheng Decl., ¶¶ 4-5; see also Cheng Decl., Ex. A [photograph of backyard].) In the backyard, adjacent to an exterior wall of the house, there is a water spigot that can be connected to a hose. (Cheng Decl., ¶¶ 5-6; Cheng Decl., Ex. A; Ovadia Decl., Ex. 2.) The water spigot protrudes two feet up from the ground and is located directly below a bay window. (Ovadia Decl., Ex. 2; Cheng Decl., Ex. A.) The bay window extends beyond the wall of the house and into the backyard; the bottom of the bay window is 52 inches from the ground and approximately 30 inches above the water spigot. (Ovadia Decl., Ex. 2.)

On August 30, 2015, Plaintiff was watering the backyard with the hose because the sprinklers were not working. (Ovadia Decl., ¶ 2; Glaspy Decl., Ex. C, Ovadia Dep. at p. 22:4-22; Glaspy Decl., Ex. B, Pl. Resp. to Int. No. 1.) When Plaintiff stood up after crouching down to shut off the water spigot, she struck the right side of her forehead on the bottom of the bay window; somehow she also broke her arm. (Ibid.)

IV. Discussion

The sole argument advanced in support of Defendant’s motion for summary judgment is that he did not owe Plaintiff a duty of care. Defendant’s supporting arguments are especially disjointed and unclear. Accordingly, it is necessary to first provide some context before addressing them.

Premises liability is a type of negligence. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 529-30.) Thus, the essential elements of a claim for premises liability “are duty, breach, causation, and damages.” (Id. at p. 529.) A premises liability claim is based on the duty of a landowner “to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1629, citing Rowland v. Christian (1968) 69 Cal.2d 108, 119, citing Civ. Code, § 1714.)

“It is beyond dispute that ‘traditional tort principles impose on landlords. . . a duty to exercise due care for the residents’ safety in those areas under their control.’” (Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 898, quoting Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) Courts have held landlords owe a duty to exercise due care for tenants’ safety around windows and other architectural features in their control. (See Amos, supra, 73 Cal.App.4th at p. 898; see also Minoletti v. Sabini (1972) 27 Cal.App.3d 321, 323-24.)

Significantly, Defendant does not begin his analysis by acknowledging or discussing these established principles. Instead, Defendant first argues “[i]n order to give rise to a duty to remedy a supposed defect, ‘a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed.’” (Mem. of Pts. & Auth. at p. 6:24-26, quoting Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385.) This statement of law is inaccurate. The quote from Getchell upon which Defendant relies is not about the element of duty; rather, it is part of that court’s discussion of causation and employer liability for the acts of employees. (Getchell, supra, 203 Cal.App.4th at p. 385.) Thus, Defendant’s reliance on Getchell is misplaced as is his reliance on other cases cited by that court for purposes of discussing the element of causation. (See, e.g., Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

Next, in the very same paragraph, Defendant states: “To defeat summary judgment, plaintiffs must establish ‘sufficient facts or circumstances that support an inference of breach of duty.’” (Mem. of Pts. & Auth. at p. 7:6-8, quoting Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 432.) It is unclear how this statement relates to any of the points preceding or following it. In his notice of motion and memorandum of points and authorities, Defendant consistently represents he is challenging the existence of a duty; he does not argue Plaintiff cannot establish any of the other essential elements of her claim. Neither this statement nor the case upon which Defendant relies support the conclusion that he did not owe Plaintiff a duty.

Without any indication as to the direction his argument is going, Defendant then provides a general statement of law about duty. The statement of law is disjointed, and Defendant does not actually cite legal authority to support many of the rules he identifies. For example, Defendant states the Rowland factors always apply and that the “primary factor in analyzing the existence of duty is whether the scope of the general duty to exercise due care includes the specific duty as alleged by the Plaintiff: in this case, the duty of Defendant to keep his property in a reasonably safe condition.” (Mem. of Pts. & Auth. at p. 8:11-14.) This general statement of law is not followed by any analysis.

Next, in a separate section of his memorandum of points and authorities, Defendant argues he “did not owe a legal duty to Plaintiff with respect to the bay window on his property.” (Mem. of Pts. & Auth. at p. 8:15-16 [argument heading].) Defendant then makes a series of disjointed assertions about failure to warn and notice, again discussing the cases addressed above that do not actually support his position about the existence of a duty.

Finally, Defendant concludes with a cursory discussion of the Rowland factors. For context, when determining whether a duty exists courts balance the Rowland factors, “which include the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 459 [internal quotation marks and citations omitted].) Although Defendant lists these factors, he does not identify evidence, cite authority, or provide analysis for each of the factors. The only case he cites is a dog bite case, which is not clearly analogous or relevant to the case at bench. (See Martinez v. Bank of Am. Nat. Trust & Savings Assn. (2000) 82 Cal.App.4th 883, 895.)

To summarize, although it is clear Defendant takes the position that he did not owe Plaintiff a duty, it is especially difficult to discern the nature, scope, logic, and bases for any of his supporting arguments or how they fit together to support his position.

“The court’s task in determining whether a duty exists ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]” (Elsheref, supra, 223 Cal.App.4th at pp. 459-60, original italics; accord Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 394.) Defendant does not discuss whether it is generally foreseeable that a person is at risk of hitting his or her head when there is not sufficient clearance to stand; instead, he states he did not see anyone hit his or her head. Thus, it appears Defendant does not understand the nature of the duty analysis.

For the reasons set forth above, Defendant fails to demonstrate he did not owe Plaintiff a duty. Thus, Defendant does not carry his initial burden of showing Plaintiff cannot establish one or more essential elements of her claim. Incidentally, even if Defendant substantiated his argument about duty, he does not carry his initial burden for the additional reason that he does not address all of the theories of liability or “counts” asserted against him in the complaint. (See Code Civ. Proc., § 437c, subd. (c); see also Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848, 1853.) Defendant’s motion for summary judgment is therefore DENIED.

The Court will prepare the order.