This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:46:35 (UTC).

GLEN A BARENSFEED VS W CLARK SMITH ET AL

Case Summary

On 01/19/2018 GLEN A BARENSFEED filed a Personal Injury - Other Personal Injury lawsuit against W CLARK SMITH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are STEVEN J. KLEIFIELD and RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0930

  • Filing Date:

    01/19/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEVEN J. KLEIFIELD

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiffs and Petitioners

BARENSFEED GLEN A.

BARENSFELD GLEN A.

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

LANE BRUCE MERRIFIELD

SMITH JONI

DOES 1 TO 100

SMITH W. CLARK

THE CITY OF LOS ANGELES

MERRIFIELD LANE BRUCE

Respondents, Defendants, Cross Plaintiffs and Cross Defendants

SMITH JONI

THE CITY OF LOS ANGELES

JONI SMITH AS TRUSTEE UNDER DECLARATION OF TRUST

MERRIFIELD LANE BRUCE

LANE BRUCE MERRIFIELD AS TRUSTEE OF THE BRUCE JOELLE HOLDINGS TRUST

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LINDE DOUGLAS A. ESQ.

LINDE DOUGLAS ADAM

Defendant and Cross Plaintiff Attorneys

WAX NANCY ELLEN

FERRON SEAN

GRUPPIE GUY ROBERT

Defendant and Cross Defendant Attorneys

FERRON SEAN

BERGER ABRAHAM

 

Court Documents

Notice of Posting of Jury Fees

6/28/2019: Notice of Posting of Jury Fees

Answer

7/25/2019: Answer

Minute Order

5/29/2018: Minute Order

ANSWER TO COMPLAINT

6/20/2018: ANSWER TO COMPLAINT

DECLARATION OF NANCY E. WAX EXTENDING DEADLINE TO DEMUR TO THE FIRST AMENDED COMPLAINT

6/28/2018: DECLARATION OF NANCY E. WAX EXTENDING DEADLINE TO DEMUR TO THE FIRST AMENDED COMPLAINT

PROOF OF SERVICE OF SUMMONS

7/5/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

7/5/2018: PROOF OF SERVICE OF SUMMONS

CASE MANAGEMENT STATEMENT

7/13/2018: CASE MANAGEMENT STATEMENT

Minute Order

7/18/2018: Minute Order

NOTICE OF FILING NOTICE OF RELATED CASE

8/3/2018: NOTICE OF FILING NOTICE OF RELATED CASE

NOTICE OF HEARING ON DEMURRER AND DEFENDANT CITY OF LOS ANGELES' DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NANCY E. WAX PER C.C.P. 430.41

8/14/2018: NOTICE OF HEARING ON DEMURRER AND DEFENDANT CITY OF LOS ANGELES' DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NANCY E. WAX PER C.C.P. 430.41

DEFENDANT CITY OF LOS ANGELES' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THE FIRST AMENDED COMPLAINT

8/14/2018: DEFENDANT CITY OF LOS ANGELES' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO THE FIRST AMENDED COMPLAINT

NOTICE RE: CONTINUANCE OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO FIRST AMENDED COMPLAINT

8/24/2018: NOTICE RE: CONTINUANCE OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO FIRST AMENDED COMPLAINT

Minute Order

10/18/2018: Minute Order

Case Management Order

10/18/2018: Case Management Order

Substitution of Attorney

11/2/2018: Substitution of Attorney

Notice of Case Management Conference

11/9/2018: Notice of Case Management Conference

Declaration

12/21/2018: Declaration

43 More Documents Available

 

Docket Entries

  • 10/13/2020
  • Hearingat 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/06/2020
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/21/2020
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 07/25/2019
  • DocketAnswer; Filed by Lane Bruce Merrifield as trustee of the Bruce Joelle Holdings Trust (Cross-Defendant)

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  • 06/28/2019
  • DocketNotice of Posting of Jury Fees; Filed by Joni Smith (Cross-Complainant)

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  • 06/28/2019
  • DocketNotice of Posting of Jury Fees; Filed by The City of Los Angeles (Cross-Defendant)

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  • 06/27/2019
  • DocketAnswer; Filed by The City of Los Angeles (Defendant)

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  • 06/27/2019
  • DocketAnswer; Filed by The City of Los Angeles (Cross-Complainant)

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  • 06/21/2019
  • DocketSummons (on Cross Complaint); Filed by Joni Smith (Cross-Complainant); Joni Smith, as Trustee under declaration of Trust Dated September 13, 1992 (Cross-Complainant)

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  • 06/21/2019
  • DocketCross-Complaint; Filed by Joni Smith, as Trustee under declaration of Trust Dated September 13, 1992 (Cross-Complainant); Joni Smith (Cross-Complainant)

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76 More Docket Entries
  • 04/02/2018
  • DocketFirst Amended Complaint; Filed by Glen A. Barensfeld (Plaintiff)

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  • 03/23/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/23/2018
  • DocketOSC-RE Other (Miscellaneous); Filed by Clerk

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  • 03/23/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/23/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 01/19/2018
  • DocketSUMMONS

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  • 01/19/2018
  • DocketNotice of Related Case; Filed by Glen A. Barensfeld (Plaintiff)

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  • 01/19/2018
  • DocketNotice of Related Cases

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  • 01/19/2018
  • DocketComplaint; Filed by Glen A. Barensfeld (Plaintiff)

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  • 01/19/2018
  • DocketCOMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. NUISANCE

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Tentative Rulings

Case Number: BC690930    Hearing Date: September 11, 2020    Dept: 47

Glen A. Barensfeld v. W. Clark Smith, et al.

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

(1) DEFENDANT JONI SMITH’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

(2) DEFENDANT LANE BRUCE MERRIFIELD’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: (1) Joni Smith; (2) Lane Bruce Merrifield

RESPONDING PARTY(S): (1) Plaintiff Glen A. Barensfeld; (2) Plaintiff Glen A. Barensfeld and Defendant Joni Smith

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff’s property sustained damage from a landslide. The Cross-Complainants seek equitable contribution and/or indemnity from each other.

Defendants/Cross-Complainants Lane Bruce Merrifield and Joni Smith separately move for summary judgment.

TENTATIVE RULING:

Defendant Joni Smith’s motion for summary judgment is DENIED.

Defendant’s alternative motion for summary adjudication is DENIED without prejudice.

Defendant Lane Bruce Merrifield’s motion for summary judgment is DENIED.

Defendant’s alternative motion for summary adjudication is DENIED.

DISCUSSION

Motion for Summary Judgment: Joni Smith

The third amended complaint (“3AC”) alleges two causes of action against the moving defendant, Joni Smith: (1) negligence, and (2) nuisance. To show that she is entitled to summary judgment, Defendant would have to show either that (1) one or more of the elements of both causes of action cannot be established, or (2) there is a complete defense to both causes of action. (CCP § 437c(p)(2).)

Defendant has not even attempted to make this showing. Defendant focuses solely on arguing that Plaintiff’s damages from an alleged break-in were not reasonably foreseeable and that Defendant’s acts or omissions were not a substantial factor in causing Plaintiff’s damages from the break-in. (Notice of Motion, at p. 2; Motion at pp. 1-15.) Yet Plaintiff alleges damages from other acts or omissions on the part of Defendant and alleges other types of damage beyond those flowing from the alleged break-in. (3AC ¶¶ 9, 13, 16, 20.) Even if Defendant prevailed on every issue she raises, that would still not be enough to show that any particular element of either cause of action could not be established, let alone both.

The motion for summary judgment is DENIED.

Alternative Motion for Summary Adjudication: Joni Smith

Defendant’s alternative motion for summary adjudication fails for the same reason as the motion for summary judgment: Defendant is seeking summary adjudication of only part of each of the two causes of action alleged against her, without following the procedure outlined in CCP § 437c(t), which is required whenever summary adjudication is sought as to a “legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action.” (CCP § 437c(t).)

Contrary to Defendant’s assertions, this section does not apply only to a standalone motion for summary adjudication, as opposed to an alternative motion for summary adjudication brought together with a motion for summary judgment. Indeed, the statute itself states that a “motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (CCP § 437c(t)(5).)

Neither is it the case that the failure to comply with this procedure is not a proper basis on which to deny a motion. In fact, the Court has no statutory authority to summarily adjudicate issues that do not completely dispose of a cause of action, affirmative defense, claim for damages, or issue of duty, outside of the procedure outlined in CCP § 437c(t). (Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 593-594 [holding that a trial judge “had no authority under the new statute,” CCP § 437(f)(1), to find that there was “no triable issue with respect to certain issues of fact” that did not purport to “completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty”].) Indeed, a “motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437(f)(1), bold emphasis added.) A “claim for damages,” for purposes of this provision, means punitive damages. (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 92.) The only exception to this requirement of CCP § 437(f) is if the procedure in CCP § 437c(t) is followed, and here it was not. (CCP § 437c(t) [“Notwithstanding subdivision (f) . . . .”].)

Accordingly, Defendant’s alternative motion for summary adjudication is DENIED, without prejudice to Defendant’s ability to request that the Court exercise its discretion to allow a motion on this basis by following the procedure outlined in CCP § 437c(t).

Motion For Summary Judgment: Lane Bruce Merrifield

As discussed below, Defendant has not demonstrated that he is entitled to prevail as to each cause of action asserted against him. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Alternative Motion For Summary Adjudication: Lane Bruce Merrifield

Request for Judicial Notice

Defendant requests that the Court take judicial notice of a Los Angeles Police Department Investigative Report, DR 170605861. This request is DENIED, as this document is irrelevant to the portions of this motion that could be considered on the merits. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].) The Court also notes that the first page of this document was completely illegible as attached to Defendant’s courtesy copy, and the other pages were not much more legible. The document could be read as filed on eCourt, but barely. In any case, it was not relevant to the decision herein.

Plaintiff’s Evidentiary Objections (August 28, 2020)

Pursuant to CCP§ 437c(q), the Court only rules upon those evidentiary objections as to the following evidence which the Court deems to be material to the disposition of this action:

Exhibit to Declaration of Sean Ferron

No. 1 [sole unnumbered objection]: OVERRULED. Not inadmissible hearsay.

Defendant Lane Bruce Merrifield’s Evidentiary Objections (September 3, 2020)

Pursuant to CCP§ 437c(q), the Court only rules upon those evidentiary objections as to the following evidence which the Court deems to be material to the disposition of this action:

Exhibits to Declaration of Douglas A. Linde

None of this evidence was deemed material.

Defendant Joni Smith’s Evidentiary Objections (August 28, 2020)

Pursuant to CCP§ 437c(q), the Court only rules upon those evidentiary objections as to the following evidence which the Court deems to be material to the disposition of this action:

Exhibits to Declaration of Douglas A. Linde

No. 1: OVERRULED. Relevant, at least in part. Not inadmissible hearsay. Other objections go to weight.

No. 3: OVERRULED. Relevant, at least in part. Not inadmissible hearsay. Other objections go to weight. Document is capable of being authenticated and admitted at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

Defendant Joni Smith’s Evidentiary Objections (September 4, 2020)

Pursuant to CCP§ 437c(q), the Court only rules upon those evidentiary objections as to the following evidence which the Court deems to be material to the disposition of this action:

Exhibits to Declaration of Douglas A. Linde

None of this evidence was deemed material.

Analysis

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary adjudication. (Ibid.)

When a defendant moves for summary adjudication, it must show that one or more elements of the cause of action at issue cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) If the defendant meets its burden to show, by a preponderance of the evidence, that an essential element of a cause of action cannot be established, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law as to that cause of action or affirmative defense. (Ibid.)

Issue No. 1: “There is no triable issue of material fact as to [Plaintiff’s] cause of action for negligence against [Defendant] as a matter of law because he did not owe a legal duty to [Plaintiff] for the landslide, as the risk was not foreseeable.”

“Liability for negligence is based on a defendant’s breach of its duty of care to the plaintiff, and damages caused by that breach.” (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1237.)

Plaintiff alleges damages arising from a landslide on January 30, 2017 in this action. (3AC ¶ 6.) Defendant argues that the risk of the landslide was not foreseeable and therefore that Plaintiff cannot prove the duty element of negligence.

At the outset, it is important to note that “[f]oreseeability is not coterminous with duty” . . . , but merely one factor to be considered in determining whether a landowner owes a duty in a particular case.” (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 393.)

The other factors to be balanced in determining the existence of duty are: “[T]he degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” . . . Expressed otherwise, “ ‘the magnitude of the harm likely to result from defendant's conduct must be balanced against the social value of the interest which he is seeking to advance, and the ease with which he may take precautions to avoid the risk of harm to plaintiff.’”

(Onciano, supra, 219 Cal.App.3d at 393–394.)

To show that the risk was not foreseeable in this case, Defendant presents evidence that (1) he was not aware he owned any portion of the slope until after the landslide; (2) that he was not aware of any prior landslides involving his property or that hillside; and (3) that the portion of his property that failed is steep and inaccessible. (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) Nos. 15, 16, 17; Merrifield Depo. 9:1-23, 11:23-25, 12:1-6, 12:21-25.)

This evidence is insufficient to establish Defendant’s prima facie case that Plaintiff cannot show that he had a duty. Defendant primarily relies on the fact that he was unaware of any previous landslides involving this hillside. However, “[w]hile the occurrence of prior similar incidents is an important factor to be considered in determining foreseeability, the lack of such incidents does not by itself negate the element of foreseeability as a matter of law.” (Onciano, supra, 219 Cal.App.3d at 393 [holding that the plaintiff’s assault and robbery were reasonably foreseeable even though there had not been any criminal activity on the premises for over six years].)

Nor has Defendant presented any authority supporting his argument that he did not have a duty to Plaintiff because he did not know he owned that part of his land until after the landslide. It is true, for example, that summary judgment may properly be granted in premises liability cases “where a defendant unequivocally establishes its lack of ownership, possession, or control of property alleged to be in a dangerous or defective condition.” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714.) Here, however, it is undisputed that Defendant did own the land.

As for the land being steep and inaccessible, it is counterintuitive for Defendant to argue that this renders the risk to Plaintiff reasonably unforeseeable. Defendant appears to argue, instead, that this was actually unforeseeable to him because he did not know that he owned that part of the hill. But the relevant standard is whether the risk was reasonably foreseeable, and reasonableness is “inherently factual.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 373.)

Accordingly, the motion is DENIED as to Issue No. 1.

Issue No. 2: “There is no triable issue of material fact as to [Plaintiff’s] cause of action for nuisance against [Defendant] as a matter of law as no conduct by [Defendant] was unreasonable or a substantial factor in causing harm to Plaintiff.”

In San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938, 55 Cal.Rptr.2d 724, 920 P.2d 669 (San Diego Gas & Electric Co.), the Supreme Court outlined the elements of an action for private nuisance. First, the plaintiff must prove an interference with his use and enjoyment of his property. (Ibid.) Second, “the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer ‘substantial actual damage.’” (Ibid.) Third, “‘[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’” (Ibid., italics omitted.)

(Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262–63.)

The relevant jury instruction divides a private nuisance claim into nine elements:

1. That plaintiff owned/leased/occupied/controlled the property;

2. That defendant, by acting or failing to act, created a condition or permitted a condition to exist that: was harmful to health; or was indecent or offensive to the senses; or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; or . . . was a fire hazard/other potentially dangerous condition to plaintiff’s property;

3. That defendant’s conduct in acting or failing to act was intentional and unreasonable/unintentional, but negligent or reckless/the condition that defendant created or permitted to exist was the result of an abnormally dangerous activity;

4. That this condition substantially interfered with plaintiff’s use or enjoyment of his/her land;

5. That an ordinary person would reasonably be annoyed or disturbed by defendant’s conduct;

6. That plaintiff did not consent to defendant’s conduct;

7. That plaintiff was harmed;

8. That defendant’s conduct was a substantial factor in causing plaintiff’s harm; and

9. That the seriousness of the harm outweighs the public benefit of defendant’s conduct.

(Judicial Council of California [CACI] Civil Jury Instruction 2021.)

Defendant argues that he cannot be liable for nuisance because there is no evidence that his conduct was unreasonable or that it was a substantial factor in causing harm to Plaintiff. In other words, he argues that Plaintiff cannot prove the third and eighth elements listed above.

Plaintiff argues that the Court cannot even consider Defendant’s first argument – that Plaintiff cannot demonstrate his conduct was unreasonable – on the ground that Plaintiff is not required to prove negligence to show nuisance. It is true that, in general, a “nuisance and liability for injuries occasioned thereby may exist without negligence.” (City of Pasadena, supra, 228 Cal.App.4th at 1236.) However, “where liability for the nuisance is predicated on the omission of the owner of the premises to abate it, rather than on his having created it, then negligence is said to be involved.” (Ibid.) In City of Pasadena, the allegation that the City failed to “prevent and/or stop the collapse” of a tree was based on failure to abate the nuisance, and therefore negligence was involved. (Id. at 1237.) Here, in contrast, Plaintiff does not solely allege that Defendant failed to abate the nuisance; he alleges that Defendant “created or permitted a condition to exist” that was harmful to Plaintiff. (3AC ¶ 16(c).) Thus, Plaintiff is correct that he is not required to show negligence for purposes of his nuisance cause of action.

As to whether Defendant’s conduct was a substantial factor in causing Plaintiff’s harm, as Defendant recognizes, causation is generally a question of fact. (Sparks v. City of Compton (1976) 64 Cal.App.3d 592, 603.) Here, in arguing that there is “no evidence” that his conduct was a substantial factor in causing Plaintiff’s harm, Defendant has not met his burden to show that Plaintiff “not only does not have but cannot reasonably expect to obtain a prima facie case.” (Hagen v. Higgenbottom (1995) 41 Cal.App.4th 168, 186, superseded by statute on unrelated grounds.)

Accordingly, the motion is DENIED as to Issue No. 2.

Issue No. 3: “[Defendant] is not liable to [Plaintiff] for any damages attributed to the break-in because the break-in was a later intentional and criminal act to [sic] which [Defendant] could not have reasonably foreseen.”

As discussed in connection with Defendant Joni Smith’s motion for summary judgment or, alternatively, motion for summary adjudication above, the Court cannot consider this issue, given that Defendant did not follow the procedure outlined in CCP § 437c(t).

Accordingly, the motion is DENIED as to Issue No. 3.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 11, 2020 _____________________________

Randolph M. Hammock

Judge of the Superior Court

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