HTSC HOMES, INC., A CALIFORNIA CORPORATION VS STAR AALEEYAH BANKS

Tentative Rulings

Case Number: *******8396 Hearing Date: November 22, 2022 Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 17, 2021, Plaintiff HTSC Homes, Inc. filed this action against Defendant Star Aaleeyah Banks, alleging breach of contract and negligence.

On September 2, 2022, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

REQUEST FOR JUDICIAL NOTICE

Defendant’s request for judicial notice of the complaint is granted.

EVIDENTIARY OBJECTIONS

Plaintiff and Defendant each inserted improper objections and argument in their responses to the other party’s separate statement of material facts. That is not the proper place for objections or argument. The separate statement in opposition to a motion for summary judgment is supposed to “unequivocally state whether the fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (California Rules of Court, rule 3.1350(f)(2).)

BACKGROUND FACTS

On April 9, 2020, Plaintiff and Defendant entered into a lease agreement for the property at 14548 Morrison Street Sherman Oaks, California (“Property”) for one year. (Undisputed Material Facts “UMF” 1.)

On May 30, 2020, Defendant was in possession of an HP laptop that was inside the Property. (UMF 4.) Prior to the fire, Defendant had used laptop computers, including this HP laptop, for years and on thousands of occasions. (UMF 5.) In her years of using laptop computers, Defendant never experienced a laptop catching fire. (UMF 6.) Defendant never heard of any warning stating that a laptop and charger, when left plugged into power, could catch fire, and before this lawsuit, she did not have any knowledge that laptops, when left charging, posed any risk of fire whatsoever. (UMF 7-8.)

DISCUSSION

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

A. Negligence

The second cause of action alleges that Defendant negligently allowed the Property to catch fire. A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “[I]n analyzing duty, the court’s task is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1273, quotation marks and emphasis omitted.) “Ordinarily, foreseeability is a question of fact for the jury. [Citation.] It may be decided as a question of law only if, ‘under the undisputed facts there is no room for a reasonable difference of opinion.’” (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56.)

Defendant declares that she had used laptop computers for years and on thousands of occasions. (Banks Decl. 4.) She has never experienced a laptop catching fire, and prior to the May 30, 2020 fire, she was not aware of any warning stating that a laptop and charger, when left plugged into power, could catch fire. (Banks Decl. 5-6.) She did not know or have reason to believe that leaving a laptop and charger on a bed or other soft surface while connected to a power source posed a fire risk. (Banks Decl. 7-8.)

Defendant’s declaration establishes only what she knew and what she believed was reasonable or foreseeable. Defendant provides no evidence of what a reasonable person would know or believe under similar circumstances. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 [“‘Ordinary negligence’—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”].) Accordingly, Defendant has failed to meet her initial burden.

If even Defendant’s declaration were sufficient to meet her moving burden, “summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (Code Civ. Proc., 437c, subd. (e).) For this additional reason, summary adjudication of the second cause of action is denied.

Although the Court concludes that Defendant has not met her initial moving burden and therefore it need not consider Plaintiff’s opposing evidence, it is worth noting that Plaintiff did not submit admissible evidence that could have created a triable issue of fact. Plaintiff provides an HP laptop owner’s manual that contains a warning about heat-related injuries or overheating the computer when the air vents are obstructed. (Gharib Decl. 9 & Ex. 2.) This does not demonstrate a known risk of fire such that Defendant and reasonable consumers could reasonably foresee that risk. Additionally, Plaintiff’s counsel does not set forth an adequate foundation for this exhibit, and there is no indication that this is the same manual that accompanied Defendant’s laptop. Plaintiff’s counsel also “did a google search and found numerous articles and warnings throughout the nation, of laptops being left on beds causing house fires.” (Gharib Decl. 11.) The six articles provided are from 2013 to 2022; were published in Miami, Washington DC, Los Angeles, Boston, and Portland news websites, plus “NotebookCheck.net News”; and describe fires in Maine, Virginia, California, Massachusetts, and England. (Gharib Decl. 11 & Exs. 3-8.) There is no indication that Defendant or other reasonable consumers saw these articles and would be aware of the risk. The articles also refer to faulty, recalled, incompatible, or counterfeit batteries—a fact not alleged or proven here. Moreover, the articles are hearsay if presented to prove the truth of their contents: that leaving a laptop charging on a bed or other soft surface can cause fires. Had Defendant successfully shifted the burden, then with this evidence, Plaintiff would have failed to create a triable issue of material fact to defeat summary adjudication.

B. Breach of Contract

The first cause of action alleges that Defendant breached the lease by failing to reimburse Plaintiff for the damage caused to the Property, specifically citing Paragraphs 9 and 20 of the lease. The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Paragraph 9, titled “MAINTENANCE AND CONDITION,” states in part, “Tenant will pay for all damage to the Premises and repairs required due to the misuse or negligence of Tenant or Tenant’s guests. . . . Tenants are responsible for all repairs and damages during the lease.” (Complaint, Ex. A at 9.) Defendant argues that because she was not negligent, she is not responsible for paying under this provision. (Motion at pp. 8-9.) However, because Defendant did not meet her burden regarding negligence and the Court denies summary adjudication of the second cause of action, she also has not met her burden here based on the same argument and evidence.

Paragraph 20, titled “INDEMNIFICATION,” states “Unless caused by the negligence of Landlord, Landlord will not be liable for any loss or damage of any property or injury or death to Tenant or any person occurring on or about the Premises. Tenant agrees to indemnify and hold Landlord harmless from all claims, expenses, damages and liabilities of whatever nature, including attorney’s fees, relating to the foregoing.” (Complaint, Ex. A at 20.) Defendant notes that this paragraph concerns “loss or damage of any property or injury or death to Tenant,” and no claims are being made against the landlord for such damage. (Motion at p. 9.) Although this paragraph does not appear support Defendant’s breach and her liability, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action.” (Code Civ. Proc., 437c, subd. (f)(1).)

Summary adjudication of the first cause of action is denied.

CONCLUSION

The motion for summary judgment, or in the alternative summary adjudication, is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Dated this 22nd day of November 2022

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Case Number: *******8396 Hearing Date: November 10, 2021 Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

On August 11, 2021, the Court entered a default against Defendant Star Aaleeyah Banks, and on September 9, 2021, the Court entered a default judgment. On September 29, 2021, Defendant filed a motion to vacate entry of the default and default judgment.

The Court may relieve a party or counsel from a judgment resulting from mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., ; 473, subd. (b).) The application for relief must be made within a reasonable time, not to exceed six months, after the judgment. (Ibid.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citation.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston).) Additionally, the Court may set aside a default or default judgment upon a motion and affidavit attesting that the lack of actual notice was not caused by the party’s avoidance of service or inexcusable neglect. (Code Civ. Proc., ; 473.5.)

Defendant timely filed this motion less than two months after entry of the default and less than a month after entry of the default judgment. Defendant argues she was never served with the summons and complaint. According to the filed proof of service, Defendant was served with the summons and complaint by substituted service. Substituted service requires leaving a copy of the summons and complaint either at the individual’s dwelling house or usual place of abode, usual place of business, or usual mailing address other than a post office box. (Code Civ. Proc., ; 415.20, subd. (b).) Plaintiff must also mail a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. (Ibid.) Here, the summons and complaint were left with “John Doe,” identified as a co-occupant, on May 23, 2021 at 2:11 p.m. at 1856 Navarro Avenue, Pasadena, CA 91103, and the documents were mailed to Defendant at the same address.

Defendant declares she has been living at another address in Woodland Hills, CA for almost a year. (Banks Decl. ¶ 4.) No one living at the 1856 Navarro Avenue address notified her about the lawsuit. (Ibid.) Accordingly, Defendant has shown that service of the summons and complaint by substituted service was not made at her dwelling house or usual place of abode and was improper.

Plaintiff argues Defendant has posted pictures on Instagram of herself standing in front of the 1856 Navarro Avenue residence as recently as June 2021. (Opposition at p. 3; Ghilb Decl. ¶¶ 11-12.) Plaintiff provides copies of photographs posted in March 2020 and June 2021 that show Plaintiff standing in front of a door and a copy of a Google Maps image of 1856 Navarro Avenue with a similar door. (Ghilb Decl., Exs. 2-4.) But Plaintiff does not have evidence that the photograph was taken at the same time it was posted in June 2021.

Plaintiff also argues Defendant is the sole member of Barbie Hair Extensions, LLC, and its June 10, 2020 statement of information lists Defendant’s address as 1856 Navarro Avenue. (Motion at p. 3; Doss Decl. ¶¶ 4-5 & Ex. B.) This does not prove that 1856 Navarro Avenue was still Defendant’s address as of the May 23, 2021 attempted service.

The Court finds Defendant submitted sufficient evidence that she was not properly served and promptly sought relief. Plaintiff has not shown sufficient prejudice if the default is set aside. (See Elston, supra, 38 Cal.3d at p. 233.) Accordingly, the motion to vacate the entry of default and default judgment is GRANTED. Defendant is to file and serve her answer within 10 days. The Court sets a Case Management Conference for January 11, 2022 at 8:30 a.m.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.