This case was last updated from Los Angeles County Superior Courts on 07/08/2019 at 15:12:36 (UTC).

THOMAS O'BRIEN VS LOS ANGELES COMMUNITY COLLEGE DISTRICT ET

Case Summary

On 06/26/2015 THOMAS O'BRIEN filed a Personal Injury - Other Personal Injury lawsuit against LOS ANGELES COMMUNITY COLLEGE DISTRICT ET. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are LORI ANN FOURNIER, MARGARET MILLER BERNAL, MASTER CALENDAR and MARGARET M. BERNAL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6440

  • Filing Date:

    06/26/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LORI ANN FOURNIER

MARGARET MILLER BERNAL

MASTER CALENDAR

MARGARET M. BERNAL

 

Party Details

Plaintiffs, Cross Plaintiffs and Cross Defendants

O'BRIEN THOMAS

LOS ANGELES COMMUNITY COLLEGE DISTRICT

MCCANN JOHN

MCCANN PROPERTY MANAGEMENT INC.

MCGANN ASSET MANAGEMENT INC.

MCGANN JOHN AN INDIVIDUAL

MCCANN PROPERTY MANAGEMENT INC. ERRONEOUS

BRIDGESTONE/FIRESTONE INC.

HON INDISTRIES INC.

SAADEH MICHELLE

SANTA FE-FIRESTONE LLC

YANGER JEROME

BRIDGESTONE/FIRESTONE INC

BRIDGESTONE AMERICAS TIRE OPERATIONS

SANTA FE-FIRESTONE LLC A CALIF. LIMITED

HON INDUSTRIES INC.

Defendants and Cross Defendants

BRIDGESTONE/FIRESTONE INC.

DOES 1 - 50

HON INDISTRIES INC.

LOS ANGELES COMMUNITY COLLEGE DISTRICT

MCCANN JOHN

MCCANN PROPERTY MANAGEMENT INC.

SAADEH MICHELLE

SANTA FE-FIRESTONE LLC

YANGER JEROME

MCGANN ASSET MANAGEMENT INC.

BRIDGESTONE/FIRESTONE INC

BRIDGESTONE AMERICAS TIRE OPERATIONS

MCGANN JOHN AN INDIVIDUAL

SANTA FE-FIRESTONE LLC A CALIF. LIMITED

MCCANN PROPERTY MANAGEMENT INC. ERRONEOUS

HON INDUSTRIES INC.

HNI CORPORATION

YANGER JEROME AN INDIVIDUAL

MCCANN JOHN AN INDIVIDUAL ERRONEOUSLY

Defendant and Respondent

DOES 1 - 50

14 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

SHAPERO MARTIN M. ESQ.

SHAPERO & SHAPERO

Cross Plaintiff and Defendant Attorneys

BEST BEST & KRIEGER

WIEZOREK & PAYNE LAW OFFICES OF

PAYNE GEORGE S. ESQ.

TANAKA GENE ESQ.

FRASER JAMES D. ESQ

MURRAY EMILY

LARSON GARRICK & LIGHTFOOT LLP

GRISCOM BENJAMIN DAKOTAH RAPHAEL

LOVE AVRIL DIONNE GROS

TUCKER ELLIS LLP

LARSON ARNOLD DOUGLAS

LEWIS BRISBOIS BISGAARD & SMITH LLP

ALLEN MATKINS LECK GABMLE MALLORY&NATSIS

TUCKER ELLIS & WEST LLP

PAYNE GEOFFREY SCOTT

Defendant and Respondent Attorneys

FRASER JAMES D. ESQ

MURRAY EMILY

LARSON GARRICK & LIGHTFOOT LLP

Plaintiff, Cross Defendant and Defendant Attorneys

SHAPERO & SHAPERO

TANAKA GENE ESQ.

SHAPERO STEVEN

3 More Attorneys Available

 

Court Documents

Other -

2/16/2017: Other -

Case Management Statement

4/25/2017: Case Management Statement

Minute Order

6/20/2017: Minute Order

Proof of Service (not Summons and Complaint)

8/28/2017: Proof of Service (not Summons and Complaint)

Request for Judicial Notice

12/1/2017: Request for Judicial Notice

Declaration

12/1/2017: Declaration

Legacy Document

1/8/2018: Legacy Document

Application

1/31/2018: Application

Legacy Document

2/6/2018: Legacy Document

Notice of Settlement

3/8/2018: Notice of Settlement

Order

7/9/2018: Order

Reply

10/26/2018: Reply

Notice

2/11/2019: Notice

Order

2/13/2019: Order

Answer

3/15/2019: Answer

DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S ANSWER TO PLAINTIFF THOMAS O'BRIEN'S COMPLAINT

9/10/2015: DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S ANSWER TO PLAINTIFF THOMAS O'BRIEN'S COMPLAINT

ANSWER OF THOMAS O'BRIEN TO CROSS COMPLAINT OF MCGANN PROPERTY MANAGEMENT, INC. AND JOHN MCGANN

10/21/2015: ANSWER OF THOMAS O'BRIEN TO CROSS COMPLAINT OF MCGANN PROPERTY MANAGEMENT, INC. AND JOHN MCGANN

DEFENDANT AND CROSS-COMPLAINANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S ANSWER TO CROSS-COMPLAINT OF MCGANN ASSET MANAGEMENT, INC., AND JOHN MCGANN

12/1/2015: DEFENDANT AND CROSS-COMPLAINANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S ANSWER TO CROSS-COMPLAINT OF MCGANN ASSET MANAGEMENT, INC., AND JOHN MCGANN

218 More Documents Available

 

Docket Entries

  • 06/21/2019
  • Trial Setting Order; Filed by Clerk

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  • 06/19/2019
  • Notice (of Trial, FSC and MSC); Filed by THOMAS O'BRIEN (Cross-Complainant)

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  • 06/18/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Trial Setting Conference - Held

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  • 06/18/2019
  • Minute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 05/17/2019
  • Notice of Entry of Dismissal and Proof of Service; Filed by McCANN PROPERTY MANAGEMENT INC.,erroneous (Cross-Complainant); John McCann (Cross-Complainant)

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  • 05/17/2019
  • Request for Dismissal (With Prejudice as to the First Amended Cross-Complaint filed by McGann Asset Management, Inc. and John McGann); Filed by McCANN PROPERTY MANAGEMENT INC.,erroneous (Cross-Complainant); John McCann (Cross-Complainant)

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  • 03/25/2019
  • Request for Refund / Order; Filed by THOMAS O'BRIEN (Plaintiff)

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  • 03/19/2019
  • Answer to revised Second Amended Complaint; Filed by BRIDGESTONE/FIRESTONE INC (Defendant)

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  • 03/18/2019
  • at 09:30 AM in Department F, Margaret Miller Bernal, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 03/15/2019
  • Answer to Second Amended Complaint; Filed by LOS ANGELES COMMUNITY COLLEGE DISTRICT (Cross-Defendant); LOS ANGELES COMMUNITY COLLEGE DISTRICT (Defendant)

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543 More Docket Entries
  • 06/26/2015
  • Complaint filed-Summons Issued; Filed by Attorney for Plaintiff

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  • 06/26/2015
  • Complaint filed-Summons Issued

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  • 06/26/2015
  • Complaint; Filed by null

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  • 06/26/2015
  • COMPLAINT FOR DAMAGES: 1. NEGLIGENCE; ETC

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  • 06/26/2015
  • SUMMONS

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  • 06/26/2015
  • Summons; Filed by Plaintiff

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  • 07/09/2010
  • Order (ORDER GRANTING DEFENDNT/CROSS- COMPLAINANT L.A. COMMUNITY COLLEGE DIST.'S GOOD FAITH SETTLEMENT APPLICATION ); Filed by Atty for Defendant and Cross-Compl

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  • 07/09/2010
  • Order; Filed by LOS ANGELES COMMUNITY COLLEGE DISTRICT (Defendant)

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  • 02/02/2001
  • Opposition (SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO HNI CORP. MSJ/MSA ); Filed by Atty for Defendant and Cross-Compl

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  • 02/02/2001
  • Opposition; Filed by McGANN ASSET MANAGEMENT INC., (Defendant); JOHN McGANN (Legacy Party); JOHN McCANN (Defendant) et al.

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Tentative Rulings

Case Number: BC586440    Hearing Date: July 09, 2020    Dept: SEC

O’BRIEN v. LOS ANGELES COMMUNITY COLLEGE

CASE NO.: BC586440

HEARING: 07/09/2020

[Remote appearances are encouraged and will be given priority.]

#7

TENTATIVE ORDER

I. Defendant/Cross-Complainant LOS ANGELES COMMUNITY COLLEGE DISTRICT’s motion for summary judgment is GRANTED.

II. Defendant BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC’s motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT.

Moving party(s) to give notice.

Defendant BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not as to any hearsay statements contained therein. Cal. Ev. Code §452.

Plaintiff THOMAS O’BRIEN’s Omnibus Request for Judicial Notice is GRANTED as to the existence of documents, but not as to any hearsay statements contained therein. Cal. Ev. Code §452.

This personal injury action was filed by Plaintiff THOMAS O’BRIEN on June 26, 2015. Plaintiff’s “Revised Second Amended Complaint” (“SAC”) was FILED on February 15, 2019.

The relevant facts, as alleged, are as follows: “In or about 1993, plaintiff leased space for the purpose of conducting a warehouse business at 2403 and 2415 E. Firestone Blvd., South Gate, CA 90280 and similarly described addresses (‘the Property’) …. Over the next several decades, Plaintiff continued to lease space from a variety of owners, including Meredith Firestone LLC, Firestone LLC, Santa Fe Firestone LLC, and the Los Angeles Community College District.” (SAC ¶3.) “A predecessor of Defendant Bridgestone/Firestone, Inc., owned the Property and operated a tire manufacturing facility thereon from 1928 to 1980. Plaintiff is informed and believes and based thereon alleges that defendants, including Bridgestone/Firestone, Inc. deposited contaminants on the site, including volatile organic compounds….” (SAC ¶4.) “Plaintiff used the subject property for his warehousing business since the time Plaintiff originally leased the property until he vacated the Property.” (SAC ¶16.) “Plaintiff observed a black oily substance oozing through the walls of the basement area. Plaintiff periodically cleaned the oozing substance.” (SAC ¶18.) “Plaintiff asked the representative of the landlord, Michelle Saadeh, about the black oozing substance, and Saadeh responded that it was not harmful.” (SAC ¶19.) “Plaintiff met with Edwin Van Ginkel, a representative of the landlord LACCD, on August 11, 2014, in connection with a Notice to Vacate given by the landlord to Plaintiff. Van Ginkel advised Plaintiff that the reason the landlord was terminating the lease was that ‘the College was losing money leasing to [Plaintiff]’. Plaintiff questioned this rationale, in that the College did not spend any money for Plaintiff’s tenancy, and Plaintiff paid substantial amounts in monthly rents to the College” (SAC ¶21.) “Van Ginkel realized that his statement was not logical, and stated to Plaintiff ‘If Firestone would turn on the system that removes the toxic gases from the basement, then things might be different’. Plaintiff was dumbstruck, as Plaintiff had not been advised in any way that ‘toxic gases’ were present in the area.” (SAC ¶22.) “Van Ginkel [ ] advised Plaintiff that the California Department of Toxic Substances was requiring the defendant Los Angeles Community College District to install a system [that removes toxic gases from the basement] under the entire basement to replace the Firestone system that was not running.” (SAC ¶23.) “Prior to August 11, 2014, Plaintiff had no knowledge of any toxic contamination in the basement dangerous to his health. Prior to August 11, 2014, Plaintiff had no knowledge of any fact that would put a reasonable person on notice of any toxic contamination in the basement dangerous to his health.” (SAC ¶24.) “Unbeknownst to Plaintiff, the Property was contaminated by Volatile Organic Compounds, including but not necessarily limited to benzene, 1,2- dichloroethylene; tricholorethene, benzyl chloride, carbon tetrachloride, 1,2 dibromoethene, 1,2 dichloroethene, naphthalene, tetrachloroethene, trichloroethene, vinyl chloride (collective, ‘VOC’s’).” (SAC ¶27.) Plaintiff alleges to have suffered significant damages arising from his exposure to various contaminants while leasing the Property.

The SAC asserts the following causes of action: (1) Negligence; (2) Fraudulent Concealment; (3) Dangerous Condition of Public Property; (4) Intentional Infliction of Emotional Distress; and (5) Negligence Per Se.

Defendant/Cross-Complainant LOS ANGELES COMMUNITY COLLEGE DISTRICT (“the District”) moves for summary judgment.

Defendant BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (“BATO”) separately moves for summary judgment, or alternatively for summary adjudication, or for judgment on the pleadings.

I. The District’s Motion for Summary Judgment

The only claim being asserted against the District is the third cause of action for Dangerous Condition of Public Property. Consequently, the District moves for summary judgment on the following grounds: (i) Plaintiff’s entire action against the District is barred by the statute of limitations set forth in Gov. Code §911.2; and (ii) Plaintiff cannot establish the necessary elements to maintain a cause of action for dangerous condition of public property under Gov. Code §835.

The Court has not previously ruled on the District’s Motion for Summary Judgment with respect to Plaintiff’s cause of action for Dangerous Condition of Public Property.

Statute of Limitations

Gov. Code §911.2 requires that a claim for damages be filed “not later than six months after the accrual of the cause of action.” (Id; See Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1263-1264.)

The District argues that it is entitled to summary judgment because Plaintiff failed to submit a tort claim within six months of the accrual of his cause of action where “the undisputed material facts establish that [Plaintiff] was aware of his injury and was concurrently aware, or should have been aware, of contamination at the Site, for years prior to submitting his tort claim and filing suit.” (District Motion 8:25-28.) The District submits evidence to establish that Plaintiff should have known about the alleged toxic contaminants on the Subject Property as early as 2005 where Plaintiff began to suffer from the medical symptoms that he alleges was caused by the toxic contamination of the Subject Property at or around 2005. (See District UMF No. 26.) The District also submits evidence to establish in 2005, 2007, and 2008, Plaintiff acknowledged the existence of “environmental issues” on the Subject Property. (District’s UMF Nos. 6-7, 9-11, 12-14, and 16.) Lastly, the District submits evidence indicating that Plaintiff should have been aware of the alleged toxic contamination by no later than June 14, 2012. (See District UMF Nos. 19-20.) “In March and June 2012, District’s consultant conducted indoor air sampling at the Site, including within [Plaintiff’s] leasehold.” (District UMF. No. 19.) “On or around June 14, 2012, District mailed a letter to tenants at the Site, including [Plaintiff] describing the results of its indoor air sampling, and stating that the ‘preliminary test results detected chemicals in the air in certain locations in the basement.” (emphasis added.) (District UMF No. 20.) Therefore, the District contends that Plaintiff’s third cause of action is barred by the statute of limitations because Plaintiff’s tort claim was untimely filed in 2015.

In Opposition, Plaintiff argues: (1) there is evidence of active concealment of the facts from Plaintiff; (2) triable issues of fact exist as to whether the action is time-barred; and (3) triable issues of fact exist as to the District’s liability for a dangerous condition of public property. To rebut the District’s evidence, Plaintiff submits his own declaration. Plaintiff declares, under penalty of perjury, that “[p]rior to August 11, 2014, [he] had no knowledge of any toxic contamination in the basement dangerous to [his] health. Prior to August 11, 2014, [he] had no knowledge of any fact that would put a reasonable person on notice of any toxic contamination in the basement dangerous to his health. In fact, prior to August 11, 2014, defendants, and each of them, affirmatively concealed the presence of toxic gases in the basement and the property was subject to on-going toxic clean up orders.” (O’Brien Decl., ¶8.) Importantly, Plaintiff does not dispute that the District mailed a letter to tenants on or around June 14, 2012 alerting tenants that chemicals in the air were present in certain location on the Subject Property. (See Plaintiff’s Opp. SS UMF. No. 20.) However, Plaintiff does indicate that he “[does] not recall receiving a warning letter.” (O’Brien Decl., ¶13.)

The delayed discovery rule delays the commencement of the running of the applicable statute until the plaintiff “is aware of his/her injury”. (Jolly v. Eli Lilly (1988) 44 Cal.3d 1103.) “A cause of action under this discovery rule accrues when ‘plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence’ [Citation.] The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. [Citation.] Subjective suspicion is not required. If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation. [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251.)

The facts of this case are analogous to Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, wherein certain Appellants sought redress for personal injuries allegedly caused by exposure to contamination of real property. In Alexander, “the Housing Authority sent a letter [in May 2007] advising all Ujima residents that it was ‘considering the possibility’ of closing the complex ‘due to the age and obsolescence of the property, the substantial economic cost of rehabilitation, and the significant disruption to the daily lives of residents to remediate environmental concerns.’” (Id. at 1242.) The Alexander action was not filed until April 2010. (Id at 1243-1244.) The Court of Appeal held that the Appellants claims were not barred by the statute of limitations because the notices of environmental contamination sent to Ujima residents in 2007 were not sufficient to place on notice of their personal injury claims—“The May 1, 2007 letter merely references a forthcoming environmental remediation as one of several factors underlying the Housing Authority’s decision to consider closing Ujima. It does not explain the nature of these unspecified ‘environmental concerns’ or provide any additional facts about the issue….. A trier of fact might legitimately infer that a letter from a government entity telling residents to stay in their homes until further notice was not, standing alone, sufficient to raise a suspicion that unspecified ‘environmental concerns’ posed a risk to their health or safety. [Cite.]” (Id. at 1256.)

Similarly, here, the District relies on certain Lease Addendums entered into by Plaintiff and the District’s predecessor in 2007 and 2008. Attached as Exhibits F and G to the instant Motion are Addendums to the Lease Agreement executed by Plaintiff and Santa Fe-Firestone, LLC. The addendums each state, “Lessee acknowledges that the project, including the Premises, is subject to a California DTSC Control Order dated April 28, 1994….” (District Exs. F-G.) The DTSC Control Order expressly states, “that there may be an imminent or substantial endangerment to the public health or welfare or to the environment, because of ac release or a threatened release of a hazardous substance.” (District. Ex. B, 1:23-26.) Akin to Alexander, the Addendums at issue do not explain the nature of the DTSC Control Order. Indeed, the DTSC Control Order is not attached to the Leases/Addendums, and its terms are not articulated/explained anywhere within the Leases/Addendums. Therefore, the Court finds that a trier of fact might legitimately infer that these Lease Addendums are insufficient to raise a suspicion that the DTSC Control Order or contents thereof, explained that any alleged toxic contamination of the Subject Property posed a risk to Plaintiff’s health or safety. Indeed, Plaintiff declares that he does not remember certain addendums to the lease citing to the existence of DTSC Control Orders, did not know what DTSC stood for prior to this action, and does not know what a Control Order is. (O’Brien Decl., ¶10.)

Moreover, the Court finds that the 2012 Letter to residents is insufficient to establish that Plaintiff’s claim is barred by the statute of limitations. The Letter states:

Dear Tenants:

The Los Angeles Community College District (District) retained Parsons, an environmental consultant firm, to perform indoor air quality testing. Specifically, Parsons took air samples in the basements of Buildings 1 and 3 on the above referenced property (Property). Parsons’ preliminary test results detected chemicals in the air in certain locations in the basement. [¶] The District has notified the Department of Toxic Substances Control (DTSC), a state regulatory agency, of its preliminary findings and is working with DTSC to identify sources and to determine appropriate action, if necessary. In addition, the District is evaluating prompt installation of a temporary ventilation system in locations in Buildings 1 and 3. The health and safety of the workers on the Property is of paramount importance to the District. The District will keep you informed of all steps in this process.” (District’s Ex. M.)

Akin to the 2007 Letter to tenants referenced in the Alexander case, the District’s Letter of 2012 fails to explain the nature of the referenced “airborne chemicals”, or to provide any additional facts about the issue. Importantly, the Letter fails to indicate that any such exposure to the airborne chemicals might result in a health or safety risk.

Lastly, the District fails to submit evidence to establish that Plaintiff and/or his treating physicians knew or should have known that any of his ailments/injuries were being caused by Plaintiff’s exposure to the alleged toxic chemicals prior to 2014.

Summary judgment is not granted on the basis that Plaintiff’s third cause of action is barred by the statute of limitations.

Dangerous Condition of Public Property

“A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition, or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition.” (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 123; Govt. Code §835.) “A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. [Citations.]” (emphasis added.) (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 66.)

It is undisputed that the District did not “cause” the alleged dangerous condition where both parties admit that the alleged toxic contamination existed prior to the District becoming Plaintiff’s landlord. Rather, the District argues that it is entitled to summary judgment where Plaintiff cannot establish that the District had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition a sufficient time before Plaintiff’s injuries occurred. The District maintains that because Plaintiff cannot establish that he began to suffer from any “new” medical symptoms or ailments after the District took ownership over the Subject Property, the District could not have caused any of Plaintiff’s alleged damages. “O’Brien does not allege that he began suffering from new ailments, or that his Medical Symptoms were exacerbated, or that he experienced some other injury, subsequent to District’s purchase of the Site.” (Motion 12:1-6.)

Plaintiff does not address the District’s argument in Opposition. Further, Plaintiff admits in his declaration that he began to suffer from his alleged injuries in 1995. (O’Brien Decl., ¶22.) Therefore, it is undisputed that Plaintiff’s injuries occurred years before the District ever became Plaintiff’s landlord, and that there is no way for the District to have taken preventative measures to protect against the alleged dangerous condition before Plaintiff’s injuries occurred.

On this basis, the District’s Motion for Summary Judgment is GRANTED.

II. BATO’s Motion for Summary Judgment/Adjudication/Judgment on the Pleadings

BATO moves for summary judgment, or alternatively summary adjudication, or for judgment on the pleadings as to Plaintiff’s first, second, fourth, and fifth causes of action.

This is BATO’s second Motion for Summary Judgment. BATO initially moved for summary judgment on the ground that Plaintiff could not prove causation. In the alternative, BATO moved for summary adjudication as to the following causes of action: Fraudulent Concealment; Strict Liability – Ultrahazardous Activity; and Intentional Infliction of Emotional Distress. BATO’s original Motion for Summary Judgment/Adjudication did not expressly address Plaintiff’s causes of action for Negligence and Negligence Per Se, except on the limited issue of causation. The Court ruled that a triable issue of material fact exists with respect to causation, and denied summary judgment. The Court granted BATO’s motion for summary adjudication as to Plaintiff’s claim for Strict Liability – Ultrahazardous Activity; and the Court treated BATO’s arguments pertaining to Fraudulent Concealment and Intentional Infliction of Emotional Distress as a Motion for Judgment on the Pleadings—which was GRANTED with 30 days leave to amend. The Court did not rule on BATO’s Motion for Summary Adjudication with respect to Plaintiff’s claims for Fraudulent Concealment and Intentional Infliction of Emotional Distress.

First Cause of Action – Negligence

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes , to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (CCP §437c(f)(2).)

With respect to BATO’s original Motion for Summary Judgment as to Plaintiff’s cause of action for Negligence, the only arguments presented to the Court were limited to the issue of causation. Here, BATO seeks summary adjudication of the first cause of action pursuant to Plaintiff’s purported inability to prevail on the issue of duty. Thus, the Court may properly exercise its discretion in determining that the instant Motion for Summary Adjudication of the First Cause of Action is not barred by CCP §437c(f)(2) “because the operative motion address[es] an issue not raised by the prior motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72.)

BATO manufactured tires at the Subject Property from approximately 1928 until the late 1970’s, then sold the Property to Hon Industries in 1981. Plaintiff did not become a tenant on the Subject Property until around 1992. Therefore, BATO argues that, because Plaintiff had no contractual relationship or contact with BATO throughout the course of his tenancy, BATO owed no duty to Plaintiff as a former owner of the Subject Property.

The essential elements of a negligence claim against a property owner are: (1) the defendant owned the property; (2) the defendant was negligent in using or maintaining the property; and (3) the defendant’s negligence was a substantial factor in causing Plaintiff’s injury. (See Cal. Civ. Code §1714(a).) Generally, landlords are not subject to liability for harm caused by dangerous conditions on the premises after they have sold the property and transferred possession. (See Lewis v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 690, 695-696.) “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citations.]” (Preston v. Goldman (1986) 42 Cal.3d 108, 119.) However, liability may continue despite a change in title if: (1) the landlord-seller concealed or failed to disclose to the buyer (successor landlord) a condition on the premises involving an unreasonable risk of harm to others; (2) the buyer neither knew nor had reason to know of the condition or risk involved; and (3) the landlord-seller knew or had reason to know of the condition, realized or should have realized the risk involved, and had reason to believe the buyer would not discover the condition or realize the risk. (Id. at 115.)

Here, Plaintiff does not dispute that BATO did not own and/or control the Subject Property throughout the course of Plaintiff’s tenancy. (See Plaintiff’s Opp. SS UMF. Nos. 4-7.) Further, no evidence has been presented that BATO concealed any alleged contamination of the Subject Property from Hon Industries or subsequent owners. Where it is undisputed that BATO had no control (or ownership) of the Subject Property after Hon Industries took possession in 1981, BATO cannot be held liable to Plaintiff due to said lack of ownership or control.

The Motion for Summary Adjudication of the first cause of action for negligence is GRANTED.

Second Cause of Action – Fraudulent Concealment

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damages a s a result of the concealment or suppression of the fact. [Citations.]” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) There is, however, no duty to disclose material facts known to one party and not the other, unless there is a fiduciary or confidential relationship that gives rise to a duty to disclose. (La Jolla Village Homeowners Ass’n v. Superior Court (1989) 212 Cal.App.3d 1131, 1151.) In the absence of a fiduciary relationship, a duty to disclose arises when a defendant: (1) discloses some facts, but intentionally fails to disclose other facts, thus making the disclosure deceptive; (2) intentionally fails to disclose facts within its exclusive knowledge; or (3) actively conceals discovery from the plaintiff. (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.)

BATO argues it is entitled to summary adjudication of the second cause of action where it owed Plaintiff no duty to disclose. This argument is well-taken.

It is undisputed that BATO did not own and/or control the Subject Property throughout the course of Plaintiff’s tenancy, and that Plaintiff did not have any contractual relationship with BATO or its predecessor to lease the Subject Property. (See Plaintiff’s Opp. SS UMF. Nos. 15-18.) BATO cannot be held liable for fraudulent concealment as a matter of law, where it is undisputed that no confidential or fiduciary relationship existed between BATO and Plaintiff. Because BATO owed Plaintiff no duty to disclose, the Motion for Summary Adjudication of the second cause of action is GRANTED.

Fourth Cause of Action – Intentional Infliction of Emotional Distress

“[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.)

As indicated above, BATO owed Plaintiff no duty to disclose. Therefore, any failure of BATO to disclose any facts to Plaintiff pertaining to an alleged toxic contamination cannot constitute extreme and outrageous conduct sufficient to maintain the claim for IIED. Moreover, it is undisputed that “[a]t no time prior to this litigation did Plaintiff communicate with anyone from BATO or its predecessor.” (Plaintiff’s Opp. SS No. 25.) Therefore, it is also unclear as to how BATO acted with the intention to cause, or with reckless disregard of the probability of causing, Plaintiff to suffer emotional distress.

The Motion for Summary Adjudication of the fourth cause of action is GRANTED.

Fifth Cause of Action – Negligence Per Se

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes , to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (CCP §437c(f)(2).)

With respect to BATO’s original Motion for Summary Judgment as to Plaintiff’s cause of action for Negligence Per Se, the only arguments presented to the Court were limited to the issue of causation. Here, BATO seeks summary adjudication of the fifth cause of action pursuant to Plaintiff’s inability to establish that BATO acted in violation of any statutes by using products containing TCE during the time BATO owned and operated the property. Thus, the Court may properly exercise its discretion in determining that the instant Motion for Summary Adjudication of the First Cause of Action is not barred by CCP §437c(f)(2) “because the operative motion address[es] an issue not raised by the prior motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72.)

The elements of negligence per se are: “(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.” (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1285.)

BATO contends that it is entitled to summary adjudication of the fifth cause of action where “[t]here is no evidence that BATO violated any of the statutes referenced in Plaintiff’s Cause of Action for Negligence Per Se.” (BATO UMF No. 28.) BATO submits the expert declaration of Plaintiff’s expert— Dr. Betancourt— to support its contention that BATO did not violate the statutes or regulations cited by Plaintiff in the SAC. (See Larson Decl., Ex. B.) Although Dr. Betancourt opines, to a reasonable degree of medical certainty, that Plaintiff suffered long term exposure to high levels of toxic contaminants for a long period of time, Dr. Betancourt does not opine that BATO’s purported contamination of the Subject Property was in violation of any of the statutes or regulations cited in the SAC. (Id.)

In Opposition, Plaintiff generally cites to the Declarations of Plaintiff, Attorney Shapero, and Exhibits of Environmental Reports, which Plaintiff maintains confirms that BATO violated the statutes referenced in Plaintiff’s SAC. Importantly, none of these documents explicitly state that BATO violated any statute or regulation. Moreover, Plaintiff does not specify that BATO was ever cited for the violations of any of the statutes or regulations referenced in Plaintiff’s SAC.

Where Plaintiff has failed to show that BATO violated a statue, ordinance, or regulation, BATO is entitled to summary adjudication of the fifth cause of action as a matter of law. The Motion for Summary Adjudication of the fifth cause of action is GRANTED.

Where there are no claims remaining against BATO, summary judgment is GRANTED.

BATO’s Evidentiary Objections to the Declaration of Thomas O’Brien:

1. Sustained

2. Sustained

3. Sustained

4. Overruled

5. Overruled

6. Overruled

7. Overruled

8. Overruled

9. Overruled

10. Overruled

11. Overruled

12. Sustained

13. Overruled

14. Sustained

15. Sustained

16. Overruled

17. Overruled

18. Overruled

BATO’s Evidentiary Objections to the Declaration of Steven J. Shapero:

1. Overruled

2. Overruled

3. Overruled

4. Overruled

5. Sustained

6. Sustained

7. Sustained

8. Sustained

9. Sustained

10. Sustained

11. Sustained

12. Sustained

13. Sustained

14. Sustained

15. Sustained

16. Sustained