This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 06:34:24 (UTC).

CHRISTOPHER CLARKE VS ALBERT ROSEN ET AL

Case Summary

On 12/15/2017 CHRISTOPHER CLARKE filed a Personal Injury - Other Personal Injury lawsuit against ALBERT ROSEN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7236

  • Filing Date:

    12/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

CLARKE CHRISTOPHER

Defendants and Respondents

ROSEN ALBERT

ROSEN MYRA

DOES 1 THROUGH 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

CHEONG DENOVE ROWELL & BENNETT

Defendant Attorney

ANGSTADT TODD A. ESQ.

 

Court Documents

DECLARATION OF NON SERVICE

2/15/2018: DECLARATION OF NON SERVICE

PROOF OF SERVICE SUMMONS

3/12/2018: PROOF OF SERVICE SUMMONS

DEFENDANT ALBERT ROSEN'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

4/6/2018: DEFENDANT ALBERT ROSEN'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

DEFENDANT MAYA ROSEN'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

4/6/2018: DEFENDANT MAYA ROSEN'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

Proof of Service

5/1/2018: Proof of Service

NOTICE OF CHANGE OF FIRM NAME

6/28/2018: NOTICE OF CHANGE OF FIRM NAME

Unknown

1/30/2019: Unknown

Ex Parte Application

2/15/2019: Ex Parte Application

Minute Order

2/19/2019: Minute Order

Declaration

5/10/2019: Declaration

Declaration

5/10/2019: Declaration

Declaration

5/10/2019: Declaration

Request for Judicial Notice

5/10/2019: Request for Judicial Notice

Request for Judicial Notice

5/10/2019: Request for Judicial Notice

Motion for Summary Judgment

5/10/2019: Motion for Summary Judgment

Motion for Summary Judgment

5/10/2019: Motion for Summary Judgment

SUMMONS

12/15/2017: SUMMONS

COMPLAINT FOR DAMAGES

12/15/2017: COMPLAINT FOR DAMAGES

10 More Documents Available

 

Docket Entries

  • 06/10/2019
  • at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary Judgment - Not Held - Vacated by Court

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  • 05/31/2019
  • at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/10/2019
  • Separate Statement

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  • 05/10/2019
  • Declaration (NON-PARTY JASON PARRY?S DECLARATION IN SUPPORT OF DEFENDANTS? MOTION FOR SUMMARY JUDGMENT); Filed by Myra Rosen (Defendant)

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  • 05/10/2019
  • Declaration (NON-PARTY MAURA TOUSIGNANT?S DECLARATION IN SUPPORT OF DEFENDANTS? MOTION FOR SUMMARY JUDGMENT); Filed by Myra Rosen (Defendant)

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  • 05/10/2019
  • Motion for Summary Judgment; Filed by Myra Rosen (Defendant)

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  • 05/10/2019
  • Declaration (OF DEFENSE COUNSEL MATTHEW A. GARDNER IN SUPPORT OF DEFENDANTS? MOTION FOR SUMMARY JUDGMENT); Filed by Albert Rosen (Defendant)

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  • 05/10/2019
  • Declaration (NON-PARTY JASON PARRY?S DECLARATION IN SUPPORT OF DEFENDANTS? MOTION FOR SUMMARY JUDGMENT); Filed by Albert Rosen (Defendant)

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  • 05/10/2019
  • Declaration (NON-PARTY MAURA TOUSIGNANT?S DECLARATION IN SUPPORT OF DEFENDANTS? MOTION FOR SUMMARY JUDGMENT); Filed by Albert Rosen (Defendant)

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  • 05/10/2019
  • Separate Statement; Filed by Albert Rosen (Defendant)

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14 More Docket Entries
  • 03/12/2018
  • PROOF OF SERVICE SUMMONS

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  • 03/12/2018
  • Proof-Service/Summons; Filed by Christopher Clarke (Plaintiff)

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  • 03/12/2018
  • Proof-Service/Summons; Filed by Christopher Clarke (Plaintiff)

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  • 02/15/2018
  • DECLARATION OF NON SERVICE

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  • 02/15/2018
  • DECLARATION OF NON SERVICE

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  • 02/15/2018
  • Declaration; Filed by Christopher Clarke (Plaintiff)

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  • 02/15/2018
  • Declaration; Filed by Christopher Clarke (Plaintiff)

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  • 12/15/2017
  • Complaint; Filed by Christopher Clarke (Plaintiff)

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  • 12/15/2017
  • COMPLAINT FOR DAMAGES

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  • 12/15/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC687236    Hearing Date: November 25, 2019    Dept: 5

de

Superior Court of California

County of Los Angeles

Department 5

christopher clarke,

Plaintiff,

v.

albert rosen, et al.,

Defendants.

Case No.: BC687236

Hearing Date: November 25, 2019

[TENTATIVE] order RE:

Defendants’ MOTION FOR SUMMARY JUDGMENT, or, in the alternative, summary adjudication

BACKGROUND

Plaintiff Christopher Clarke (“Plaintiff”) filed this action after he fell off the roof of an apartment complex at which he resided. The apartment complex was owned and operated by Defendants Albert Rosen and Myra Rosen (“Defendants”). Plaintiff asserts causes of action for negligence and premises liability. Defendants move for summary judgment on Plaintiff’s complaint. Plaintiff opposes the motion. The Court previously held a hearing on July 25, 2019, but continued the hearing to afford Plaintiff an opportunity to conduct discovery. The Court now denies Defendants’ motion for summary judgment.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

DISCUSSION

A. Elements

To state a claim for negligence, Plaintiff must show that Defendant had a duty to Plaintiff, that Defendant breached that duty, and that the breach caused damages to Plaintiff. To state a claim for premises liability, Plaintiff must demonstrate that Defendant failed to exercise ordinary care in its management of the premises. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

B. Plaintiff’s Alleged Suicide Attempt

Defendants move for summary judgment, arguing that Plaintiff attempted suicide, meaning that they owed Plaintiff no duty. A defendant has a duty to prevent a foreseeable suicide only when a special relationship existed between the defendant and the plaintiff. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293.) Defendants proffer the following evidence that Plaintiff attempted suicide:

- Shortly after midnight on January 4, 2016, Plaintiff exited his apartment on the third floor and went onto the roof. (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, ¶ 19.)

- Plaintiff was diagnosed as having Bi-Polar Disorder in 2012. (Id., ¶ 20.) Plaintiff’s objection to this evidence is overruled, as it is relevant for purposes of the motion.

- Plaintiff was under the care of a mental health professional when the incident occurred. (Id., ¶ 21.) Plaintiff was on medication to treat his Bi-Polar disorder when the subject incident occurred. (Id., ¶ 22.) Plaintiff’s objections to this evidence is overruled, as the evidence is relevant for purposes of the motion.

- Plaintiff had been on the roof before and felt there was nothing dangerous about the roof but stayed away from the edge of the roof on prior occasions. (Id., ¶ 23.) Plaintiff had been on the roof at night and was able to see where the edge was located. (Id., ¶ 24.) Plaintiff testified that he knew where the edge of the roof was located. (Declaration of Matthew A. Gardner, Exh. B, at p. 166.)

- According to Plaintiff’s neighbor, Kathryne Bruce, Plaintiff said something leading her to believe that he was “wrapping up his life,” though she was not sure whether he was planning to move or commit suicide. (Id., Exh. F, at p. 51.)

- Plaintiff has no memory of how he accessed the roof on the night of the incident. (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, ¶ 27.) Plaintiff testified that he did not recall leaving his apartment or accessing the roof, and he did not recall anything about the incident prior to waking up in the hospital. (Declaration of Matthew A. Gardner, Exh. B, at p. 152.)

- After the incident, the police found Plaintiff’s sweater and wallet (which contained his driver’s license), as well as some money atop the sweater, on the roof. (Id., ¶ 34.)

- After the incident, Eugene Travnikoff attempted to open the door to the roof, but it was stuck because a cinder block had been placed behind the door, which blocked it from opening. (Id., ¶ 39.)

Defendants’ evidence is sufficient to demonstrate the Plaintiff attempted suicide, in which case they had no duty to protect him. In response, Plaintiff relies on his own declaration stating that he did not intend to commit suicide. (Plaintiff’s Declaration, ¶¶ 5-6.) Plaintiff also relies on the declaration of Plaintiff’s brother, which states that Plaintiff was planning to move to Florida (which may explain his “wrapping up his life” comments) and that he never saw any indication that Plaintiff was suicidal. (Declaration of Lance Clark, ¶¶ 3-4.) Plaintiff has also proffered evidence to suggest that results of the urine toxicology screen performed on Plaintiff at the hospital after his accident is not evidence that Plaintiff was intoxicated at the time of his accident. (Declaration of Jonathan D. Weaver, M.D., ¶¶ 4-6.)

Plaintiff’s evidence is sufficient to give rise to a triable issue. Indeed, while Defendant’s evidence presents a compelling case that Plaintiff attempted suicide, Defendant does not proffer any expert testimony that Plaintiff was suicidal or that suicidal ideations are a result of Plaintiff’s condition. The Court cannot consider Jason Parry’s declaration discussing his conversation with Kathryne Bruce because it contains a double layer of hearsay (and it is contradicted by Kathryn Bruce’s deposition testimony anyway). Therefore, the Court must deny summary judgment on this basis.

C. Plaintiff’s Alleged Fall

Defendants also move for summary judgment, arguing that they did not have a duty of care or, in the alternative, they satisfied any such duty. Defendants rely on the declaration of Maura Tousignant (“Tousignant”), who is the on-site manager of the apartment building. Tousignant states that she was not aware of any tenants going to the roof. (Declaration of Maura Tousignant, ¶¶ 4-5.) Tousignant states that the door to the roof of the apartment building has a metal box with a glass panel around the door handle, with a padlock that prevents anyone without the key from opening the box. (Id., ¶¶ 6-7.) She also states that the only way to access the door handle is to break the glass box, or to use the key to the padlock, and that no residents had a key to the padlock. (Ibid.)

Defendants also rely on Plaintiff’s deposition testimony. Plaintiff testified at deposition that no one who worked at the apartment building ever told him he could go on the roof. (Declaration of Matthew A. Gardner, Exh. B, pp. at 72-73.) Plaintiff testified that “there’s nothing dangerous about the roof” because it’s “total[ly] flat.” (Id., Exh. B, at p. 165.) Plaintiff further testified that the edge of the roof was clearly visible because “the rooftop’s lit up . . . .” (Id., Exh. B, at p. 166.)

Defendants’ evidence, taken together, is sufficient to show that they did not have a duty to prevent Plaintiff from accessing the roof, because it was not foreseeable that a tenant would access the roof, or, in the alternative, they satisfied any such duty with the precautions they took. In opposition, Plaintiff relies on his own deposition testimony. As discussed, Plaintiff testified that he accessed the roof on prior occasions, because the door to the roof would be left ajar. (Declaration of Shane V. Hapuarachy, Exhibit 2, pp. 49-50.) Plaintiff testified that he would see other tenants using the roof to smoke cigarettes. (Declaration of Shane V. Hapuarachy, Exh. B, pp. 53-54.) Plaintiff testified that he told Jason Parry, the property supervisor for the apartment building, tenants were walking on the roof. (Declaration of Shane V. Hapuarachy, Exhibit 2, pp. 65-66.) Plaintiff also relies on an email from Tousignant to Parry on January 4, 2016, the date of Plaintiff’s accident. In it, Tousignant states that “[t]he glass was removed from the case that covers the lock” on the door to the roof. (Declaration of Shane V. Hapuarachy, Exhibit 5.)

Taken together, this evidence is sufficient to raise triable issues of material fact as to whether Defendants had a duty to prevent Plaintiff from accessing the roof and breached that duty. The evidence on which Plaintiff relies suggests that Defendants were on notice that tenants were accessing the roof. Further, the evidence suggests that tenants were able to access the roof without breaking the glass case around the door handle, either because the door was frequently ajar or because someone could simply remove the glass panel. The Court need not reach the declaration of Brad Avrit since the remaining evidence is sufficient evidence to create a triable issue.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is denied. Defendants shall provide notice and file proof of such with the Court.

DATED: November 25, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court