ABEL MONTES ET AL VS YOUNG MEN'S CHRISTIAN ASSN OF GLENDALE

Tentative Rulings

Case Number: ****8158    Hearing Date: July 09, 2020    Dept: 17

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 17

TENTATIVE RULING

YMCA’s motion for summary judgment is GRANTED.

On December 26, 2017, Plaintiff Abel Montes aka Abel Montes Sr., Angela Reisner, and the Estate of Abel Montes Jr., by and through Alma Abel Montes, filed suit against the Young Men’s Christian Association of Glendale, California (YMCA), Eric Perrodin, National Council of Young Men’s Christian Associations of the United States of America, and YMCA of Glendale, alleging: (1) premises liability; (2) negligence, including negligent supervision; (3) continuation of decedent’s causes of action (survival action).

On December 10, 2018, YMCA’s motion for summary judgment was denied. On Appeal, the court reversed, based on a finding that there had not been a consideration of the threshold argument as to whether YMCA owed a legal duty to protect Mr. Abel Montes (Mr. Montes) from the obvious risk of falling from a roof.

This Court received the Order and Alternative Writ in this matter filed by the Court of Appeal on February 25, 2020 and indicated on March 4, 2020 its intention to comply with alternative (a) of the Alternative Writ.

Factual Background

Mr. Montes was a resident at the YMCA in Glendale, California. On January 1, 2016, Mr. Montes fell from the roof of the building. The fall resulted in his death.

I. Discussion

The issue before the Court on Summary Judgment is whether YMCA owed a legal duty to protect Mr. Montes from the obvious risk of falling from the roof.

The existence of a duty of care is an “essential element “of causes of action for negligence and premises liability. (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478.) The failure to fulfill a legal duty is negligence, and the existence of a duty is an issue of law for the court to determine. (Barnes, supra, 71 Cal.App.4th at p. 1478.)

Landowners, in particular, owe a duty to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury. (Barnes, supra, 71 Cal.App.4th at p. 1478.) The following factors determine the scope of the landowner's duty of care:

(1) the foreseeability of harm to the injured party;

(2) the degree of certainty he or she suffered injury;

(3) the closeness of the connection between the defendant's conduct and the injury suffered;

(4) the moral blame attached to the defendant's conduct;

(5) the policy of preventing future harm;

(6) the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and

(7) the availability, cost, and prevalence of insurance for the risk involved. 

(Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 (Rowland), superseded by statute on another ground as stated in Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 722.)

A finding of foreseeability is insufficient, by itself, to establish the existence of a duty. However, a finding that an injury suffered was not foreseeable is sufficient to establish that a landowner did not owe a duty to the injured party. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306.

To determine whether a harm is foreseeable, Courts look, in part, to the obviousness of the danger presented by a condition. Where the danger is “so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673.) However, injury from an obvious danger is still considered foreseeable, “if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.” (Ibid.)

In Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 445, defendant realtor company was showing a house on the market with an empty swimming pool and diving board (Id. at p. 440.) One of the plaintiffs, a potential buyer, stood on the diving board to get a better view of a fence. (Id. at p. 442.) The diving board broke loose from its base, and plaintiff fell into the empty swimming pool, sustaining serious injuries. (Id. at p. 442). Plaintiffs argued that the defendant was liable for “failing to correct, warn of, or otherwise protect [plaintiff prospective buyer] from the dangerous condition of the diving board.” (Id. at p. 446). The Court found that Defendant did not owe a duty to plaintiffs because the injury was not foreseeable—the “dangers of the empty swimming pool were per se obvious to any adult” and there was no evidence that suggested that “as a practical necessity, [Plaintiff[ was foreseeably required to expose himself to the danger of falling into a pool.” (Id. at p. 447.)

In Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393, a construction worker was killed after the boom truck he was operating came in contact with a power line negligent placed by a utility company across a private landowner’s property. Despite the obviousness of the danger of electrocution posed by contact with high voltage wires, the Court found that the landowner still owed a duty of care because the harm was reasonably foreseeable, given the practical necessity of encountering the danger. Specifically, the Court wrote:

Viewing the evidence in the light most favorable to plaintiffs, as we must, we believe the harm—electrocution caused by the boom coming into contact with overhead power lines—was reasonably foreseeable by Whitaker. In our view, the practical necessity of encountering the danger (i.e., the necessity of using the boom truck to move materials), when weighed against the apparent risk involved (electrocution by contact with electrical

Here, YMCA argues it owed no legal duty to protect Mr. Montes from the danger of falling off the roof because the harm was not foreseeable. Specifically, the harm was not foreseeable because the risk of falling off the roof is an open and obvious danger and there was no practical necessity to encounter this danger. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673.)

In opposition, Plaintiffs argue that a property owner has a duty to eliminate all dangerous conditions on a property, and that “[t]he obviousness of a condition does not necessarily excuse the duty of a landowner to rectify the condition, although it may eliminate a duty to warn.” Applied to the facts here, Plaintiffs argue that while YMCA may not have owed a duty to warn Mr. Montes of the danger, they owed a duty of care to eliminate the danger posed by the roof. (Motion, 14: 8-12.)

The parties do not dispute that the subject roof presented an open and obvious danger (“I think we have all essentially conceded standing on top of a sloped roof with no guardrail is essential dangerous,” Plaintiff’s counsel, Siepler Decl., Exh. A). The dispositive question therefore is, like in Jacobs, whether there is evidence that, as a practical necessity, Mr. Montes was foreseeably required to expose himself to the danger of falling off the roof. The Court finds that there is not.

Plaintiffs devote a large portion of their supplemental briefings to a discussion of comparative fault, and to distinguishing between the duty to warn of a dangerous condition and a duty to remedy that dangerous condition. Plaintiffs correctly note that “recent authority makes clear that while a readily apparent danger may relieve the property owner of a duty to warn, it no longer necessarily absolves him of the duty to remedy that condition.” (Donahue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 656.) However, the very case law cited by Plaintiffs to argue that YMCA owed a duty to remedy, even if it did not owe a duty to warn, makes clear that YMCA did not owe either. For example, Plaintiffs cite to Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184 as standing for the proposition that “the obviousness of a condition does not necessarily excuse the duty of a landowner to rectify the condition, although it may eliminate a duty to warn.” However, Plaintiffs do not include the entire quote which reads:

However, that the hazard was open and obvious did not relieve defendant of all possible duty, or breach of duty, with respect to it. In the trial court and again here, defendant argued only that the obvious appearance of the wet pavement excused defendant from a duty to warn of it. That was most likely so. But the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it. The modern and controlling law on this subject is that “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability....”

(Martinez, supra, 121 Cal.App.4th at p. 1184, emphasis added.)

In other words, the duty to remedy, despite no duty to warn, arises when it is practically necessary to encounter a danger. The Court in Krongos, another case cited by Plaintiff, conducts an identical analysis, writing:

Viewing the evidence in the light most favorable to plaintiffs, as we must, we believe the harm—electrocution caused by the boom coming into contact with overhead power lines—was reasonably foreseeable by Whitaker. In our view, the practical necessity of encountering the danger (i.e., the necessity of using the boom truck to move materials), when weighed against the apparent risk involved (electrocution by contact with electrical

Unlike the slippery steps in Martinez which were obvious but likely to “still attract pedestrian use,” or the overhead power lines which were obvious but likely to be encountered by the boom truck moving materials, Plaintiffs have submitted no evidence that the YMCA roof was a dangerous condition which had to be encountered out of practical necessity. Because there was no practical necessity for Mr. Montes, or any individual, to encounter this open and obvious danger, the harm here, i.e., Mr. Montes’ fatal fall from the roof, is not foreseeable as a matter of law. Based on this finding, the Court need not consider additional factors before concluding that YMCA did not owe a duty to warn or remedy Mr. Montes the dangerous nature of the roof. (“While we characterize foreseeability as a consideration, it is more than that. If the court concludes the injury was not foreseeable, there was no duty. There is no need to discuss the remaining considerations.” Sturgeon, supra, 29 Cal.App.4th at p. 306.)

As discussed above, the existence of a duty of care it an “essential element “of causes of action for negligence and premises liability. (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478.) Given the Court’s conclusion that YMCA did not owe Mr. Montes a duty to warn of, or remedy, of the open and obvious danger posed by the roof, Plaintiffs have not carried their burden with respect to their causes of action.

Based on the foregoing, YMCA’s motion for summary judgment is granted.

It is so ordered.

Dated: July , 2020

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via CourtCall. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: ****8158    Hearing Date: February 20, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented. 

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH CENTRAL DISTRICT, JUDGE HOFER presiding in DEPT. D of the GLENDALE COURTHOUSE, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.  

The Order is signed and filed this date, and incorporated herein by reference.  Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.

DATED: February 10, 2020 ___________________________

Case Number: ****8158    Hearing Date: February 10, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

After review of the court file, the Court makes the following order:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH CENTRAL DISTRICT, JUDGE HOFER presiding in DEPT. D of the GLENDALE Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

The Order is signed and filed this date, and incorporated herein by reference. Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.

DATED: February 10, 2020 ___________________________

Hon. Jon Takasugi

Judge of the Superior Court

Case Number: ****8158    Hearing Date: December 10, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiffs, Abel Montes, Angela Reisner, and the Estate of Abel Montes, Jr. filed this action against Defendants, Young Men’s Christian Association of Glendale, Eric Perrodin, National Council of Young Men’s Christian Associations of the United States of America, and YMCA of Glendale for damages arising out of wrongful death (premises liability), wrongful death (negligence), and survival claims.  Plaintiffs allege their son, Abel Montes, Jr. died when he fell off Defendants’ roof. 

2. Motion for Summary Judgment

a. Parties’ Positions

Defendant, Young Men’s Christian Association of Glendale, California (hereafter “Defendant”) moves for summary judgment on the complaint, contending (a) Plaintiffs have no evidence of a dangerous condition on the roof that caused Decedent’s fall, (b) Plaintiffs do not know how Decedent fell, (c) There was no special relationship between Decedent and Defendant, (d) Defendant was legally barred from denying Decedent access to his room, and (e) The survival cause of action fails as a matter of law.  Defendant, in the alternative, seeks summary adjudication of four issues that will be discussed below.

Plaintiffs oppose the motion.  Plaintiffs argue there were various aspects of the roof, including access to the roof itself, that constitute a dangerous condition.  Plaintiffs argue the Declaration of Avrit raises triable issues of material fact concerning how the fall occurred.  Plaintiffs argue Defendant’s own policy, and the parties’ contract, should have precluded Defendant from allowing Decedent access to his room on the night in question. 

b. Undisputed Facts

Most of the facts relating to the action are not disputed.  Decedent was a resident at Defendant’s YMCA on the night in question.  Decedent went to a party with two co-workers on New Year’s Eve, 2015. Decedent consumed alcohol and marijuana during the course of the night.  Decedent returned to the YMCA at approximately 2 a.m., at which time Eric Perrodin was working at the front desk.  Decedent told Perrodin he had consumed a pot brownie and was high.  He initially said he would like Perrodin to call 911, but changed his mind.  Around 4 a.m., Decedent came back to the lobby and was acting erratically.  Decedent then indicated he was returning to his room.  At approximately 6 a.m. Perrodin went outside to check for transients and found Decedent lying on the windshield of his vehicle; he was alive, but was later pronounced dead at the hospital. 

c. Continuance of Hearing

The Court was originally scheduled to hear this motion on 11/07/19.  The Court continued the hearing to 12/10/19 and ordered, among other things, the parties to file briefs in two issues.  Specifically, the Court ordered:

· The parties must each file a brief, no more than three pages in length, about the condition of the roof WHERE THE FALL OCCURRED.  The Court notes that Plaintiffs appear to be relying on photographs of the roof from the opposite side of the roof, which are not relevant.  The Court asks the parties to submit authenticated evidence of a photo or photos of the roof WHERE THE FALL OCCURRED with the brief if the parties are in possession of such evidence.

· The parties must each file a separate brief, no more than three pages in length, concerning the interplay between landlord-tenant law and the YMCA of Glendale Resident Rules and Regulations and Applicant Statement. 

o Was the parties’ relationship governed by civil landlord-tenant law?

o What effect did the Statement have on Defendant’s ability, or lack of ability, to exclude Decedent from the premises on the night of the incident?

d. Condition of the Roof

Defendant takes the position, in its moving papers, that Plaintiffs do not have and cannot reasonably expect to obtain evidence that the roof itself was in a dangerous condition at the time of the fall.  Defendant contends the photographs Plaintiffs submitted in support of their position that the roof was dangerous are of the opposite side of the roof from where Decedent landed, such that the photographs cannot support the conclusion that the roof in the area where Decedent fell was dangerous.

The Court finds the moving papers are sufficient to meet the moving burden to show Plaintiffs do not have and cannot reasonably expect to obtain evidence that the roof, in the area where Decedent fell, was dangerous.  As noted above, the Court continued the hearing on the motion to permit Plaintiffs to submit evidence concerning the condition of the roof in the area where Decedent fell.  Plaintiffs submitted the Supplemental Declaration of Avrit in this regard.  Avrit, in his supplemental declaration, explains at length the various areas of the roof from which Decedent could have fallen, and then explains why he believes Decedent most likely fell from a specific area of the roof.  Avrit provides various exhibits, each of which appear to be artist-rendered depictions of the roof, in order to show where the fall likely occurred.  Avrit then states, “Black Circle #2 has the same dangerous characteristics as previously described in my prior declaration.  Not only was the roof sloped at an angle, but it was covered with slippery, brittle, broken, and unstable Spanish tiles that, if stepped on, could cause a person to slip, fall, and sustain serious – even fatal – injuries such as the injuries and death suffered by Mr. Abel Montes Jr.  The portion of the roof at the YMCA of Glendale residential building from which the fall occurred (Black Circle #2) is sloped and covered with slippery, brittle, broken, and unstable Spanish tiles and more likely than not caused Abel Montes, Jr.’s fall.” 

Taking the evidence in the light most favorable to Plaintiffs, as the Court must do on summary judgment, the Court finds the supplemental declaration of Avrit sufficient to raise triable issues of material fact concerning whether the roof, at the location of the fall, was in a dangerous condition. 

e. How Decedent Fell

Defendant also contends it is entitled to judgment as a matter of law because Plaintiffs cannot show any condition on the roof caused Decedent to fall.  Defendant contends it is equally possible Decedent jumped from the roof, or fell without any dangerous condition.  At ¶16 of the Avrit Declaration in support of the opposition to the motion, Avrit explains why he believes it is more probable than not that Decedent fell, as opposed to jumped, from the roof.  He opines that the resting position of Decedent was consistent with a slip and fall over a jump.  Taking this statement in the light most favorable to Plaintiffs, as the Court must do on summary judgment, the Court finds there are triable issues of material fact concerning whether Decedent jumped or fell to his death. 

f. Additional Issues

Because there are triable issues of material fact concerning whether Decedent fell and whether the condition of the roof was dangerous, the Court need not consider the other issues discussed by the parties, such as whether Defendant had a legal obligation to prevent Decedent, in an intoxicated condition, from entering the premises and whether or not access to the roof should have been prevented. 

g. Motion for Summary Adjudication 

Defendant made an alternative motion for summary adjudication.  The motion for summary adjudication fails to comply with CRC 3.1350(d)(2), which provides, “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.”  Defendant merely re-states each of the same 36 facts in support of its motion for summary judgment in connection with each issue to be adjudicated.  The entire purpose of the separate statement in connection with an alternative motion for summary adjudication is to restrict the Court’s attention to the facts that relate directly to the issue presented, rather than the facts that relate to the entire action.  The alternative motion for summary adjudication is therefore also denied.

h. Conclusion

There are triable issues of material fact concerning whether the condition of the roof where the fall occurred was dangerous, and whether or not Decedent fell, as opposed to jumped, from the roof.  The motion for summary judgment is therefore denied.  The motion for summary adjudication is denied as procedurally improper. 

Defendant is ordered to give notice.

Case Number: ****8158    Hearing Date: November 07, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

The hearing on Defendant’s motion for summary judgment/adjudication is continued from 11/07/19 to Tuesday, 12/10/19 at 1:30 p.m. in Department 3 of the Spring Street Courthouse. On or before Friday, 11/22/19, the parties are ordered to do the following:

· Plaintiff correctly notes certain defects in Defendant’s citation to evidence in its separate statement. Defendant must submit a corrected separate statement citing the relevant corresponding evidence. Defendant must not make any other changes to the separate statement.

· The Court’s First Amended General Order Re: Mandatory Electronic Filing for Civil, dated 5/03/19, ¶9(b)(vi, requires parties to lodge tabbed courtesy copies of all papers in support of or opposition to a summary judgment motion.

o Defendant submitted un-tabbed courtesy copies of its moving papers. Defendant must submitted tabbed courtesy copies of its moving and reply papers.

o Plaintiffs did not submit courtesy copies of the opposition papers. Plaintiffs must submit tabbed courtesy copies of their opposition papers.

On or before Tuesday, 12/03/19, the parties are ordered to do the following:

· Plaintiff must file a responsive separate statement. The separate statement should update the responses to the corrected evidence, but must make no other changes.

· The parties must each file a brief, no more than three pages in length, about the condition of the roof WHERE THE FALL OCCURRED. The Court notes that Plaintiffs appear to be relying on photographs of the roof from the opposite side of the roof, which are not relevant. The Court asks the parties to submit authenticated evidence of a photo or photos of the roof WHERE THE FALL OCCURRED with the brief if the parties are in possession of such evidence.

· The parties must each file a separate brief, no more than three pages in length, concerning the interplay between landlord-tenant law and the YMCA of Glendale Resident Rules and Regulations and Applicant Statement.

o Was the parties’ relationship governed by civil landlord-tenant law?

o What effect did the Statement have on Defendant’s ability, or lack of ability, to exclude Decedent from the premises on the night of the incident?

All supplemental briefs, evidence, and separate statements must be served on the opposing party by personal delivery or overnight mail. The parties may use e-mail or fax as an alternative method of service if and only if the parties have agreed to such service. The parties must deliver courtesy copies of all of the briefs, evidence, and separate statements (as well as the tabbed courtesy copies, discussed above), directly to Department 3.

The trial date is advanced to today’s date and continued to Friday, 1/10/20 at 8:30 a.m. in Department 3 of the Spring Street Courthouse. The FSC is advanced to today’s date and continued to 12/27/19 at 10:00 a.m. in Department 3.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.