On 06/17/2014 TAMIKO BROWNLEE filed a Personal Injury - Other Personal Injury lawsuit against MISSION CONTROL MEDIA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM, MEL RED RECANA and DANIEL S. MURPHY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOWARD L. HALM
MEL RED RECANA
DANIEL S. MURPHY
MISSION CONTROL MEDIA INC.
CEGLIA FRANK (DOE 1)
FRANK POPE PYROTECHNICS
ALVAND INDUSTRIES LLC
WHITE TERRANCE JAMES JR.
DOE PROSTHETIC DESIGNER MANUFACTURER
FEXCO CORPORATION (DOE 2)
T-MINUS PRODUCTIONS INC.
DOE PROPANE POPPER MANUFACTURER DISTRI-
DOE PYROTECHNIC SPECIAL EFFECTS COMPANY
SYFY MEDIA PRODUCTIONS LLC
BENNETT VINCENT VALLIN
GRECO VICKI ESQ.
BONDER TODD W. ESQ.
MCINTYRE ANNE K. ESQ.
5/4/2015: PROOF OF SERVICE SUMMONS
6/3/2015: ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (DEPARTMENT 91, 92, 93,97)
6/26/2015: CIVIL DEPOSIT
6/29/2015: DEFENDANTS MISSION CONTROL MEDIA, INC. AND SYFY MEDIA PRODUCTIONS, LLC'S NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION AND TO STAY CIVIL COURT PROCEEDINGS; ETC.
10/15/2015: DEFENDANTS MISSION CONTROL MEDIA, INC. AND SYFY MEDIA PRODUCTIONS, LLC'S REPLY BRIEF IN SUPPORT OF ITS PETITION TO COMPEL ARBITRATION AND TO STAY CIVIL COURT PROCEEDINGS
10/26/2015: DEFENDANTS MISSION CONTROL MEDIA, INC. AND SYFY MEDIA PRODUCTIONS, LLC?S NOTICE OF CONTINUED HEARING ON PETITION TO COMPEL ARBITRATION
10/28/2015: ORDER RE; PETITION OF DEFENDANTS, MISSION CONTROL MEDIA, INC., AND SYFY MEDIA PRODUCTIONS, LLC, TO COMPEL ARBITRATION; MOTION TO STAY ACTION
1/26/2016: SUBSTITUTION OF ATTORNEY
2/8/2016: PLAINTIFF' CONDITIONAL NON-OPPOSITION TO DEFENDANT, ALVAND INDUSTRIES, LLC'S MOTION TO STRIKE PUNITIVE DAMAGES CLAIM AND REQUEST FOR LEAVE TO AMEND AS A STATUTORY RIGHT TO AMEND PLAINTIFF'S FIRST AMEN
2/16/2016: DEFENDANT, ALVAND INDUSTRIES, LLC'S REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT
2/19/2016: DEFENDANTS T-MINUS PRODUCTIONS, INC., TERRANCE JAMES WHITE, JR. AND HOLLYWOODSTUNTCOORDINATOR.COM'S NOTICE OF NON-OPPOSITION TO PETITION AND PETITION TO COMPEL ARBITRATION AND TO STAY CIVIL COURT PROC
2/23/2016: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
2/23/2016: Minute Order
3/1/2016: NOTICE RE: CONTINUANCE OF HEARING
3/2/2016: NOTICE OF CONTINUACE OF HEARING OF DEFENDANT, ALVAND INDUSTRIES, LLC'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT
3/17/2016: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
11/14/2016: Minute Order
Order Filed by CourtRead MoreRead Less
Ord-Appt Apprv Rptr as Rptr protem Filed by Attorney for Deft/RespntRead MoreRead Less
Notice of Continuance Filed by Attorney for Defendant/RespondentRead MoreRead Less
Notice of Continuance Filed by Attorney for Defendant/RespondentRead MoreRead Less
Notice of Continuance Filed by ClerkRead MoreRead Less
Order of Transfer (TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT *TRANSFERRED TO DEPT 45, CENTRAL* ) Filed by CourtRead MoreRead Less
Ord-Appt Apprv Rptr as Rptr protem (P. MYERS, CSR 12940 ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Motion to Compel (ARBITRATION AND TO STAY CIVIL COURT PROCEEDINGTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF FRANK CEGLIA, DWIGHT SMITH, AND VICKI GRECO, ESQ. IN SUPPORT OF PROCEEDING) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Notice (OF NON-OPPOSITION TO PETITION AND PETITION TO COMPEL ARBITRATION AND TO STAY CIVIL COURT PROCEEDINGS ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Reply to Opposition (TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Notice (OF PETITION TO COMPEL ARBITRATION AND TO STAY CIVIL COURT PROCEEDING ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Receipt (CIVIL DEPOSIT-JURY FEES ) Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Stip & Order-Continue Trial,FSC-PI (PI - CONTINUE FSC/TRIAL FSC 5/18/16 TRIAL 5/27/16 ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Motion to Strike (PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Demurrer (TO PLAINTIFF'S FIRST AMENDED COMPLAINT ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Proof-Service/Summons Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
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ComplaintRead MoreRead Less
Case Number: BC548886 Hearing Date: November 20, 2020 Dept: 32
MISSION CONTROL MEDIA, INC., et. al.
Case No.: BC548886
Hearing Date: November 20, 2020
[TENTATIVE] order RE:
motion for summary judgment
Plaintiff Tamiko Brownlee (Plaintiff) commenced this action against Defendants Mission Control Media, Inc. (Mission); T-Minus Productions, Inc. (T-Minus); Hollywoodstuntcoordinator.com; Terrance James White, Jr. (White); Syfy Media Productions, LLC (Syfy); Alvand Industries LLC (Alvand); and Frank Pope Pyrotechnics on June 17, 2014. Plaintiff named Frank Ceglia (Ceglia) and Fexco Corporation (Fexco) as Doe Defendants on January 11, 2016. The operative pleading is the Second Amended Complaint (SAC) filed on December 17, 2019. The SAC asserts causes of action for (1) general negligence, (2) premises liability, (3) products liability, (4) peculiar risk, and (5) ultrahazardous activity. The first two causes of action are asserted against all Defendants; the third through fifth causes of action are asserted against all Defendants except Alvand. The SAC alleges in pertinent part as follows.
Plaintiff is a stunt worker. On June 21, 2012, Plaintiff was participating in the filming of the television show “Face-Off” at a warehouse located at 516 S. Anderson Street, Los Angeles, CA 90033 (Premises). Due to Defendants’ negligence, pyrotechnics exploded in close proximity to Plaintiff. As a result, Plaintiff was severely burned over multiple parts of her body.
Alvand commenced a cross-action against Gemini 3 Productions (Gemini) on January 17, 2020. The Cross-Complaint asserts causes of action for (1) equitable indemnity, (2) contribution, (3) declaratory relief, and (4) apportionment of fault.
C. Course of Proceedings
In October 2015, the Court granted a motion to compel arbitration brought by Mission and Syfy. In March 2016, the Court granted motions to compel arbitration brought by T-Minus, Hollywoodstuntcoordinator.com, White, Ceglia, and Fexco. The Court stayed the case with respect to Alvand.
In December 2019, the Court granted Plaintiff’s petition to vacate the arbitration award in favor of Fexco and against Plaintiff. Fexco has appealed this ruling.
Statement of Facts
Alvand owns the Premises where the subject incident took place. (DUMF 3.) Alvand also owns the warehouse located on the Premises (Warehouse). (DUMF 4.)
On June 8, 2012, Style Clothing Supply, Inc. (SCS) was the Premises’s sole tenant. (DUMF 5.) On or about June 8, 2012, SCS entered into a Location Contract with Gemini. (DUMF 6.) Under the Location Contract, SCS gave “permission to [Gemini] and its employees, agents, contractors and suppliers (‘Producer’) to enter upon and use the” Premises from June 18, 2012 through June 22, 2012 “for the purpose of photographing, filming and recording … certain scenes for use and in connection with the television program currently entitled ‘Face Off’ ” (Production). (Veiseh Decl. Ex. C.)
Gemini was solely responsible for the Production, including its liability, hiring, and financial aspects. (DUMF 8.) Prior to filming, Gemini built a film set inside the Warehouse which incorporated existing balconies and some other existing architectural features. (DUMF 9.) Gemini brought in actors, equipment, and bleaches for a live audience. (DUMF 10.)
The Production called for the use of pyrotechnics. (DUMF 11.) Gemini hired Defendant Ceglia, an experienced special effects director and supervisor, to provide pyrotechnics devices and to control, operate, and oversee their use in the Production. (DUMF 12.) Gemini rented the subject pyrotechnics devices, including an 18-inch by 4-inch propane popper from Fexco. (DUMF 13.) Prior to filming, Ceglia obtained the necessary permits in order to use the pyrotechnics in the Production. (DUMF 14.) Ceglia coordinated the presence of the fire marshal at prior rehearsals and during the shooting of the Production. (DUMF 15.)
Gemini also hired Defendant White, an experienced action director, stunt coordinator, stuntman, and actor, as the Action Director for the Production. (DUMF 16.) White’s duties included choreographing stunts and fight sequences for the Production as well as casting the stunt actors. (DUMF 17.) White cast Plaintiff as a stunt actor for the Production and referred her to Gemini. (DUMF 18.) Gemini hired Plaintiff as a stunt actor on the Production. (DUMF 19.)
On June 20, 2012, a dress rehearsal for the Production was held in the Warehouse and, the next day, the actual filming occurred. (DUMF 20.) The Production crew showed Plaintiff and the other actors where they needed to be positioned in relation to the pyrotechnics and where and when the pyrotechnics would be ignited during the Production. (DUMF 23.) The subject pyrotechnics were tested and ignited during rehearsal without any issues. (DUMF 25.)
On June 21, 2012, Plaintiff presented to a building in Burbank, CA where her makeup and costume prosthetics were applied. (DUMF 26.) Plaintiff and other actors were then transported to the Warehouse to participate in the filming of the Production before a live audience. (DUMF 27.) During Plaintiff’s choreographed fight and stunt sequence, a motorcycle was out of place which forced her and her fight partner to move their choreographed fight about two feet closer to the propane popper. (DUMF 31.) The propane popper went off and the resulting “hot flash” was “significantly larger” than what Plaintiff had witnessed during rehearsal. (DUMF 32.) Plaintiff felt a burning sensation all over and ran off stage about halfway through her fight sequence. (DUMF 33.) Plaintiff was transported to a nearby hospital by ambulance. (DUMF 34.)
Defendants Alvand moves for summary judgment of the SAC or, in the alternative, summary adjudication of the two causes of action asserted against Alvand — a cause of action for general negligence and a cause of action for premises liability.
In both causes of action, Plaintiff alleges that Alvand owed her “a duty of care for protection on her behalf.” (SAC ¶¶ 17, 22.) Plaintiff alleges that Alvand breached this duty and that the breach caused her to suffer injuries. (SAC ¶¶ 17-18, 22-23.)
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Because Plaintiff does not articulate any distinctions between her negligence and premises liability claims, Alvand analyzes both claims together. (Mot. at 13.) The Court agrees with this approach.
Alvand claims that these negligence claims fail as against Alvand because Plaintiff cannot establish that Alvand owed Plaintiff a duty of care under the circumstances. Alvand contends that Plaintiff cannot establish an applicable duty of care because, at the time of her injury, (1) Alvand was the Premises’s landlord and had relinquished control of the Warehouse to Gemini, (2) the purportedly unsafe condition — the pyrotechnics — was created after Alvand had relinquished control of the Warehouse, and (3) Alvand had no knowledge of the unsafe condition and lacked the ability and right to correct the condition.
A. Stay of the Case
Plaintiff contends that this motion must be denied because this case has been stayed pending the completion of arbitration and Fexco’s appeal. Both points are unpersuasive.
The stay imposed against Alvand was lifted. In March 2016, Judge Mel Red Recana granted a motion to compel arbitration and stayed the case as to Alvand. Judge Recana also took Alvand’s demurrer and motion to strike off calendar without prejudice “to renotice after the arbitration stay has been lifted.” (3/18/16 Order.) Thereafter, the case proceeded to arbitration. In October 2019, the parties informed Judge Recana that arbitration was complete. (10/11/19 Order.) Judge Recana then set Alvand’s demurrer and motion to strike for December 13, 2019. (Ibid.) On December 4, 2019, Plaintiff filed a “conditional, non-opposition” to the demurrer and motion to strike seeking 20 days leave to amend. (12/4/19 Opp.) Plaintiff did not argue that the demurrer or motion to strike should not proceed because of the stay. On December 13, 2019, Judge Recana ruled on the demurrer and motion to strike. (12/13/19 Order.) This evidence — the arbitration’s completion and the resumption of litigation activities — plainly shows that the stay was lifted in this matter.
Likewise, the appellate stay created by Fexco’s appeal does not bar resolution of this motion. Subject to certain exceptions not relevant here, CCP section 916(a) states that “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” “The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ ” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) “To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings ‘upon the matters embraced’ in or ‘affected’ by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ ” (Ibid.)
In this case, Judge Recana granted Plaintiff’s motion to vacate the arbitration award because the arbitrator failed to decide all the causes of action Plaintiff asserted against Fexco. (12/13/19 Order; see CCP § 1283.4 (stating that the arbitration award “shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.”).) Plaintiff has not explained how Fexco’s appeal of this court order could have any bearing on this appeal. The arbitration award did not apply to Alvand and involved issues of products liability, not premises liability. Moreover, if Fexco prevails, the arbitration award will stand; if Fexco loses, Plaintiff and Fexco will have to litigate their dispute. In either case, Plaintiff’s claims against Alvand must be independently decided in court.
B. Lease v. License
Plaintiff contends that Alvand misjudges the applicable duty of care because Alvand and Gemini were not in a landlord-tenant relationship. Plaintiff asserts that the Location Contract is a license, not a lease. The Court disagrees.
“A ‘license’ is a personal, revocable and generally nonassignable privilege conferred (either orally or in writing) to do a particular act (or acts) upon the land of another. It is a nonpossessory right to use the property as specified between the parties.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1040.) Conversely, “[a] ‘lease’ is an agreement that creates the relationship of landlord and tenant. A lease grants the exclusive possession and use of property to the tenant against the world, including the owner, for a consideration, for a term that endures for a definite and ascertained period, however long or short the period may be, with a reversion to the owner at the end of the term.” (10 Miller & Starr, Cal. Real Estate (4th ed. 2020) § 34:1.)
“The interpretation of an agreement to determine whether it is a lease, a license or another form of interest is often a subtle pursuit.” (Qualls v. Lake Berryessa Enterprises, Inc. (1999) 76 Cal.App.4th 1277, 1283.) The determination presents a question of law and is therefore well-suited for summary judgment. (See Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 429
“One key characteristic that distinguishes a tenancy from a mere license is the right to exclusive possession as against the whole world, including the landowner.” (Spinks, supra, 171 Cal.App.4th at 1040.) In Spinks, the appellate court determined that the parties’ agreement was a lease, not a license: “Here, plaintiff [i.e., the tenant] made the factual assertion that the ‘lease agreement did not place any restrictions upon Plaintiff’s occupancy at the Subject property.’ Defendants [i.e., the landlords] responded that the proffered fact was irrelevant, but they did not dispute it. In any event, there is no evidence in the record indicating that any person besides plaintiff had the right to occupy the apartment during the lease term. To the contrary, the housing agreement provides for plaintiff to ‘be housed individually’ in the apartment. Thus, so far as this record suggests, plaintiff enjoyed exclusive possession of the premises during the term of the lease.” (Ibid.)
The Court reaches the same conclusion here based on the contractual language of the Location Contract and the lack of evidence showing that any person besides Gemini had the right to occupy the Warehouse during the contractual term.
The Location Contract states in pertinent part:
[SCS] hereby gives permission to [Gemini] and its employees, agents, contractors and suppliers (‘Producer’) to enter upon and use the [Premises from Monday June 18, 2012 through through June 22, 2012] for the purpose of photographing, filming and recording (including, without limitation, sound recording) certain scenes for use and in connection with the television program currently entitled ‘Face Off’ (the ‘Program’), and in and in connection with any advertising, promotion, publicity, or other material relating to the Program. Producer may use the Property until all scenes requiring the Property have been completed. Without in any way limiting the foregoing, Owner grants Producer the right, without limitation, to recreate at any time the look and feel of the Property, including all buildings, landscaping, fixtures, furnishings, artwork and other features thereon….”
(Veiseh Decl. Ex. C.)
This contractual provision is broad. This contractual provision empowered Gemini to use the Premises for a five-day period for essentially any purpose that assisted the Production. While the Location Contract is silent about whether Gemini could exclude Alvand or its representatives from the Warehouse during the contractual term, the Location Contract implicitly suggests that Gemini could do so because the contract gave Gemini the broad right to use and recreate the entire Warehouse for any Production-related purposes. Alvand’s concurrent possession of the Warehouse could conceivably have resulted in a breach of the agreement.
Strengthening this conclusion, Alvand presents deposition testimony from White and Ceglia showing that Alvand and SCS personnel were not present in the Warehouse during the rehearsals or filming of the Production. (White Depo. pp. 88-89; Ceglia Depo, pp. 130, 132.) In response, Plaintiff presents no evidence that Alvand concurrently used or could use the Warehouse. (Cf. Veiseh Depo. p. 53 (testifying that he was occasionally work in his office on the north side of the Premises).)
“Another ‘fundamental attribute of a lease’ that distinguishes it from a license is payment ‘for the use of the premises’ in the form of ‘the legal equivalent of rent.’ ” (Spinks, supra, 171 Cal.App.4th at 1041.) This factor also favors the determination that the Location Contract is a lease. Gemini paid Alvand “the legal equivalent of rent” in order to rent out the Premises. (Veiseh Decl. Ex. C.)
A third factor distinguishing a lease from a license is assignability. Licenses are unassignable, whereas leases are subject to assignment. (10 Miller & Starr, Cal. Real Estate (4th ed. 2020) § 34:5; see also Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal.2d 633, 637 (noting that licenses are unassignable).) Here, the Location Contract permitted Gemini to assign its contractual rights to some extent. The Location Contract states in pertinent part: “Owner agrees that Producer may license, assign and otherwise transfer this contract and all rights granted by Owner to Producer under this contract to any person or entity, specifically excluding the right to enter upon and use the Property, which shall not be licensed, assigned, or transferred by Producer.” (Veiseh Decl. Ex. C.) Because the Location Contract permitted assignment (and, indeed, because the Location Contract discusses assignment at all), this factor favors the conclusion that the Location Contract was a Lease.
Finally, “an agreement under which an owner of real property allows another to conduct his own separate business in a stall or section of a store or lot creates the relationship of landlord and tenant rather than licensor and licensee.” (Beckett, supra, 14 Cal.2d at 638.) Alvand and Gemini set up such an arrangement. Alvand allowed Gemini to conduct its own separate business — television production — in a section of the Premises — the Warehouse. Pursuant to Beckett, this arrangement presumptively establishes a landlord-tenant relationship.
In light of these factors, the Court concludes that the Location Contract is a lease.
Plaintiff argues that the Location Contract is a license because under the Location Contract, Alvand / SCS expressly gave “permission to Gemini … to enter upon and use the property.” Plaintiff emphasizes that this language mirrors the function of a license: “A licensee comes on the land by consent or permission, but usually for purposes of his own, having no relation to the business of the owner or occupant.” (Miller v. Desilu Productions, Inc. (1962) 204 Cal.App.2d 160, 163.)
This argument is unpersuasive for two reasons. First, Miller did not involve an examination of whether an agreement was a license or lease. Miller involved an examination of whether the appellant was a licensee or trespasser, i.e., common law classifications which the California Supreme Court rejected in Rowland v. Christian (1968) 69 Cal.2d 108. Miller therefore does not lend support to Plaintiff’s argument. Second, the Court does not see how this argument provides a tenable basis for distinguishing a lease from a license. Pursuant to a lease, the landlord also gives permission to the tenant to enter and use the property. Giving permission to another to use one’s property thus does not distinguish these two types of agreements.
Plaintiff also points to the deposition testimony of Veiseh, Alvand’s and SCS’s owner. (Veiseh Decl. ¶ 2.) Veiseh testified: “I didn’t lease the place. I was renting out the place.” (Veiseh Depo. p. 48.) This deposition testimony also does not assist Plaintiff’s position. For one, counsel asked Veiseh immediately thereafter what “the difference between rental and leasing” is, and Veiseh responded: “I don’t know the difference, but I was renting it.” (Ibid.) Veiseh’s nonexpert opinion on this subject is therefore not probative. Moreover, as Alvand notes, the terms “rental” and “leasing” are often used interchangeably in the law. (See CACI 4304 (jury instructions for terminating a “lease/rental agreement/sublease” due to a breach of contract).) Assuming arguendo there is a distinction between the two, this distinction has no reasonable bearing on the distinction between a lease and license.
C. Existence and Scope of Alvand’s Duty of Care
In general, a landowner “has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.) Public policy, however, “precludes landlord liability for a dangerous condition on the premises which came into existence after possession has passed to a tenant. [Citation.] This is based on the principle that the landlord has surrendered possession and control of the land to the tenant and has no right even to enter without permission.” (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604.)
CACI 1006 provides a concise description of the landlord’s duty of care:
A landlord must conduct reasonable periodic inspections of rental property whenever the landlord has the legal right of possession. Before giving possession of leased property to a tenant …, a landlord must conduct a reasonable inspection of the property for unsafe conditions and must take reasonable precautions to prevent injury due to the conditions that were or reasonably should have been discovered in the process. The inspection must include common areas under the landlord’s control.
After a tenant has taken possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the landlord’s control if the landlord knows or reasonably should have known about it.
After a tenant has taken possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the tenant’s control if the landlord has actual knowledge of the condition and the right and ability to correct it.
(CACI 1006 (emphasis added); see also Day v. Lupo Vine Street, L.P. (2018) 22 Cal.App.5th 62, 69; Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.)
In this motion, Alvand has shown that it did not breach the limited duty of care which it owed to Plaintiff. The allegedly “unsafe condition” which caused Plaintiff to suffer injury was the pyrotechnics which Gemini rented and placed onto the Premises after Gemini took possession of the Premises. (DUMF 13.) Accordingly, Alvand had a duty to “take reasonable precautions to prevent injury” arising from the pyrotechnics only if Alvand had “actual knowledge of the condition and the right and ability to correct it.” (CACI 1006.) Alvand had neither. The Location Contract makes no mention of pyrotechnics, and Veiseh testified that Gemini never informed him that it intended to use pyrotechnics in the Production. (Veiseh Depo. p. 78.) Moreover, Alvand lacked the right or ability to correct this unsafe condition. Gemini had the contractual right to enter and use the Premises to conduct the Production. Preventing Gemini from using the pyrotechnics would have been an act of contractual interference.
Plaintiff responds (albeit indirectly) that Veiseh had notice of the pyrotechnics discharged on the Premises because a fire marshal was present and Veiseh worked in his office at the same time. Plaintiff’s argument, however, is premised on speculation, not evidence. Plaintiff recalls a fire marshal being present at the Premises at some point but could not recall when. (Veiseh Depo. p. 69.) This does not establish his knowledge that pyrotechnics would be set off in the Warehouse. Further, while Veiseh regularly worked in his office located on or near the Premises (see Veiseh Depo. pp. 53, 74-75), Veiseh testified that the office is in “a separate building” and that he could not look inside the Warehouse. (Veiseh Depo. pp. 75-76.) Veiseh testified that he did not enter the Warehouse when Gemini was working. (Veiseh Depo. p. 74.) Plaintiff has therefore not established a triable issue of fact as to whether Alvand knew about the pyrotechnics.
More important, even if Plaintiff established Alvand’s knowledge of the pyrotechnics, Plaintiff has failed to establish that Alvand (1) knew the condition was unsafe in light of the safety measures undertaken by Gemini and (2) possessed the right and ability to correct the condition in light of Alvand’s contractual agreement to lease the Premises to Gemini and Gemini’s right to use pyrotechnics on the Premises to carry out the Production.
In sum, Alvand did not breach the limited duty of care which is owed to Plaintiff, and Alvand did not owe Plaintiff the duty of care which Plaintiff alleges — a duty of care to protect Plaintiff from harms arising from the pyrotechnics.
D. Negligence Per Se Doctrine
Plaintiff does not dispute Alvand’s case law establishing the scope of the duty of care owed by landlords to tenants. Instead, Plaintiff appears to argue that Alvand can be held liable on a negligence per se theory.
“ ‘Negligence per se’ is an evidentiary doctrine codified at Evidence Code section 669. Under subdivision (a) of this section, the doctrine creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. [Citation.] These latter two elements are determined by the court as a matter of law.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.)
Plaintiff cites to 19 CCR section 986.6(g). That regulation addresses specifications for safe and sane fireworks. That regulation states in pertinent part: “All pyrotechnic devices having a base shall provide stable support to maintain the item in a vertical position when firing. When bases are added to the device, they shall be firmly glued in place.” (Opp. RJN Ex. 7.)
Plaintiff also cites to a National Fire Protection Association (NFPA) manual entitled “Standard for the Use of Pyrotechnics before a Proximate Audience.” (Gordon Decl. Ex. 7.) According to the manual, “[t]he purpose of this standard shall be to provide minimum requirements to the operators and manufacturers for the safe operation of pyrotechnic effects.” (Id. § 1.1.) Section 6.2.1 of the manual states: “All pyrotechnic devices shall be mounted in a secure manner to maintain their proper positions and orientations so that, when they are fired, the pyrotechnic effects described in the plan submitted by the permittee are produced. Pyrotechnic devices shall be mounted so that no fallout from the device endangers human lives, results in personal injury, or damages property.”
Plaintiff argues that the pyrotechnic device which injured her did not comply with these legal standards because the device was not securely mounted.
There are several problems with Plaintiff’s arguments.
First, the NFPA is a private organization, not a public entity. (Coalition For ICANN Transparency, Inc. v. VeriSign, Inc. (9th Cir. 2010) 611 F.3d 495, 506.) As such, Plaintiff cannot formulate a negligence per se theory on violation of NFPA’s manuals and regulations because the manual does not set forth a “statute, ordinance, or regulation of a public entity.”
Second, “the Evidence Code section 669 presumption of negligence applies only after determining that the defendant owes the plaintiff an independent duty of care.” (California Service Station and Auto. Repair Ass'n v. American Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1180.) As noted ante, the Court has concluded that Alvand owed Plaintiff a limited duty of care which did not encompass the pyrotechnics.
Third, Alvand did not violate this CCR provision or these NFPA standards. Alvand did not place the pyrotechnic device on the Premises, did not set up the pyrotechnic device, and did not use the pyrotechnic device improperly. As such, Plaintiff cannot satisfy the first element of the negligence per se doctrine.
Alvand’s motion for summary judgment is granted.
 Plaintiff’s and Alvand’s requests for judicial notice are granted. (Evid. Code § 452(b), (d).)
The Court has not ruled upon Alvand’s objections to Plaintiff’s evidence because its objections were not material to the disposition of this motion. (CCP § 437c(q).)
Plaintiff’s objection to Alvand’s reply separate statement is overruled. The reply separate statement served as an analytical tool to assist the Court in resolving this motion. Plaintiff has demonstrated no prejudice from Alvand’s submission of this document.
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