On 04/04/2018 MICHELE BARNETT filed a Personal Injury - Other Personal Injury lawsuit against 22301 S WESTERN AVENUE LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
DANIEL M. CROWLEY
22301 S. WESTERN AVENUE LLC
AZIZI DAVID ESQ.
SIMPSON VENESSA PEARL
DRAKE VENESSA PEARL
9/21/2020: Notice - NOTICE OF NON-RECEIPT OF OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT
6/26/2020: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil
6/30/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/30/2020
7/8/2020: Proof of Service by Mail
3/24/2020: Notice of Continuance - NOTICE OF CONTINUANCE OF HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
3/20/2020: Minute Order - MINUTE ORDER (COURT ORDER)
12/23/2019: Declaration - DECLARATION OF STEVEN P FECHNER
12/23/2019: Motion for Summary Judgment
12/23/2019: Notice of Lodging - NOTICE OF LODGING OF EXHIBITS IN SUPPORT
12/23/2019: Separate Statement
2/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 02/10/2020
2/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER CONTINUING MOTION FOR SUMMARY JUDGMENT) OF 02/10/2020
2/10/2020: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)
8/7/2019: Declaration - DECLARATION NON-OPPOSITION DECLARATION OF JASON SMITH IN RESPONSE TO DEFENDANT'S MOTIONS TO COMPEL AND REQUEST FOR SANCTIONS
8/13/2019: Reply - REPLY IN SUPPORT OF MOTION TO COMPEL
8/16/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
7/12/2018: SUBSTITUTION OF ATTORNEY -
4/4/2018: COMPLAINT FOR DAMAGES
Hearing04/05/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing03/25/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
Hearing03/11/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 2:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Summary Judgment - Held - Motion DeniedRead MoreRead Less
DocketMinute Order ( (Defendant's Motion for Summary Judgment)); Filed by ClerkRead MoreRead Less
DocketNotice (OF NON-RECEIPT OF OPPOSITION TO DEFENDANT?S MOTION FOR SUMMARY JUDGMENT); Filed by 22301 S. Western Avenue, LLC (Defendant)Read MoreRead Less
DocketNotice (NOTICE OF ERRATA REGARDING DECLARATION OF STEVEN P. FECHNER IN SUPPORT OF DEFENDANT MOTION FOR SUMMARY JUDGMENT); Filed by 22301 S. Western Avenue, LLC (Defendant)Read MoreRead Less
DocketProof of Service - Order Granting Attorney's Motion to be Relieved as Counsel; Filed by Michele Barnett (Plaintiff)Read MoreRead Less
DocketDeclaration (DECLARATION OF JASON SMITH RE PROOF OF SERVICE OF MOTION TO WITHDRAW); Filed by Michele Barnett (Plaintiff)Read MoreRead Less
Docketat 2:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketSubstitution of Attorney; Filed by Michele Barnett (Plaintiff)Read MoreRead Less
DocketNOTICE OF ATTORNEY LIENRead MoreRead Less
DocketNotice of Lien (by Attorney); Filed by Michele Barnett (Plaintiff)Read MoreRead Less
DocketANSWER-PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATHRead MoreRead Less
DocketAnswer; Filed by 22301 S. Western Avenue, LLC (Defendant)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Michele Barnett (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Michele Barnett (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
Case Number: BC700780 Hearing Date: September 28, 2020 Dept: 28
Motion for Summary Judgment
Having considered the moving papers, the Court rules as follows.
On April 4, 2018, Plaintiff Michele Barnett (“Plaintiff”) filed a complaint against Defendant 22301 South Western Avenue, LLC (“Defendant”). Plaintiff alleges negligence and premises liability in her complaint for a trip-and-fall that occurred on May 24, 2017.
On December 23, 2019, Defendant filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.
On February 10, 2020, the Court continued the hearing on Defendant’s motion for summary judgment to March 19, 2020.
On February 14, 2020, the Court continued the hearing on Defendant’s motion for summary judgment to April 8, 2020.
On March 20, 2020, the Court continued the hearing on Defendant’s motion for summary judgment to May 6, 2020.
On April 16, 2020, the Court continued the hearing on Defendant’s motion for summary judgment to August 5, 2020.
On June 30, 2020, the Court continued the hearing on Defendant’s motion for summary judgment to September 28, 2020.
Trial is set for March 25, 2021.
Defendant asks the Court to enter summary judgment in its favor and against Plaintiff because: (1) Defendant did not have possession or control of the property that Plaintiff was injured on and (2) Plaintiff’s exclusive remedy is workers’ compensation benefits.
The purpose of a motion for summary judgment “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.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, 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 judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
Lack of Possession and Control
The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)
“Historically, the public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition.” (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510; Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 778.) “As the court explained in Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131-1132, disapproved in part on another ground in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 247-250: ‘Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’” In addition, “limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.’” (Stone v. Center Trost Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.)
“A written release may exculpate a tortfeasor from future negligence or misconduct.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356 [discussing this law in the context of negligence][citation omitted]; see also, Mora, supra,. 210 Cal.App.3d at p. 781 [implying a written release may exculpate a commercial landlord of being liable for premises liability to a third party despite the cause of action being labelled as negligence].) “To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ [Citation] The release need not achieve perfection.” (Benedek, supra, 104 Cal.App.4th at p. 1356 [citations omitted].) “In the absence of extrinsic evidence, the scope of a release is determined by the express language of the release.” (Id. at p. 1357 [citation omitted].)
However, “. . . a commercial landowner cannot totally abrogate its landowner responsibilities merely by signing a lease. renewal[,] a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions.” (Mora, supra, 210 Cal.App.3d at p. 781 [citations omitted].) Id. at p. 782 [citations and quotation omitted].)
“The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord’s obligation is only to do what is reasonably under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” (Id. at p. 782.)
Defendant’s undisputed material facts establish the following. On April 5, 2002, HealthCare Partners entered into a lease agreement with Alameda Properties, LTD. (UMF No. 1.) The third extension of the lease shows Defendant overtook Alameda Properties, LTD. as the lessor. (Fechner Decl., p. 26.) In a fourth amendment to the lease, HealthCare Partners and Defendant agreed to extend the lease from June 1, 2015 to May 31, 2017. (Fechner Decl., pp. 28-31.) Defendant cleaned, repaired, and conducted a reasonable inspection of the property for any unsafe conditions before giving possession of the property to HealthCare Partners. (UMF No. 7.) All areas of the property were clean, free of debris, and in good operating condition at the time that possession of the property was delivered to HealthCare Partners. (UMF No. 9.) Plaintiff alleges that, on May 24, 2017, Plaintiff tripped and fell from an improperly maintained metal strip on a staircase located at the leased property. (UMF Nos. 13-15.)
Pursuant to paragraph 7.1 of the lease, HealthCare Partners was required to keep the property located at 22301 S. Western, Torrance, California 90501 “in good order, condition and repair . . . whether or not the need for such repairs occurs as a result of [HealthCare Partners’s] use [or] any prior use . . . .” (UMF No. 3; Lease, pp. 1, 3.) This includes, but is not limited to, all floors. (Ibid.) HealthCare Partners’ obligation to keep the property in good order, condition and repair is expressly limited in the lease by Defendant’s obligations in paragraph 7.2 of the lease. (Lease, pp. 3-4.)
Pursuant to paragraph 7.2 of the lease, Defendant was required to keep the leased property “in good order, condition and repair the . . . walkways . . . serving the Common Areas and all parts thereof . . . .” (Ibid.) “Common Areas” is defined in paragraph 2.7 of the lease as “all areas and facilities outside the Premises and within the exterior boundary line of the Industrial Center and interior utility raceways with the Premises that are provided and designated by the Lessor from time to time for the general non-exclusive use of [Defendant] . . . .” (Lease p. 2.)
The Court finds Defendant has not met its burden . The pivotal question is whether the stairs that Plaintiff tripped on are within HealthCare Partners’ preview as defined in paragraph 7.1 of the lease or within Defendant’s preview as defined in paragraph 7.2 of the lease. Defendant states in undisputed material fact number 19 that Plaintiff alleges in the complaint that Plaintiff tripped and fell on the stairs inside of the leased building. However, a review of the complaint reveals that Plaintiff does not distinguish whether the stairs Plaintiff tripped on were inside or outside the leased building on the property Defendant owns. It then becomes immaterial that the property was defect free at the time it was delivered to HealthCare Partners because the defect may have arisen after this delivery on property under Defendant’s exclusive control. In sum, the evidence does not show that HealthCare Partners had exclusive possession and control of the subject stairs such that Defendant could not be liable for Plaintiff’s harm.
Workers’ Compensation Exclusive Remedy
The Workers Compensation Act governs compensation to employees for injuries incurred in the course and scope of their employment. (Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201.)
California Labor Code section 3602 states “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer.”
California Labor Code section 3600, subdivision (a) provides, in pertinent part, as follows:
Liability . . . shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment . . . in those cases where the following conditions of compensation concur:
(1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.
(2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment . . .
(3) Where the injury is proximately caused by the employment, either with or without negligence.
Under Labor Code section 3852, an injured employee whose exclusive remedy against his or her employer is workers’ compensation may still sue a third-party tortfeasor. (See Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 208 Cal.App.4th 286, 290.)
Defendant’s undisputed material facts establishes the following. Plaintiff was an employee of HealthCare Partners at the time of Plaintiff’s trip-and-fall. (UMF No. 17.) Plaintiff was acting within the course and scope of Plaintiff’s employment with HealthCare Partners when she suffered injuries from the trip-and- fall. (UMF No. 16.)
Defendant cites the Privette doctrine and its progeny for the proposition that a landlord cannot be liable for the leasee’s employee’s injuries suffered at the property within the course and scope of the employee’s employment. (Motion, pp. 15:14-16:24.) The Privette doctrine holds that employees of independent contractors cannot sue the party that hired the contractor when injured in the workplace. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) “[i]t would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over the safety at the worksite. In fairness, . . . the imposition of tort liability depends on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Kinsman v. Unocal (2005) 37 Cal.4th 659, 670.)
The Court is unwilling to extend the reach of the Privette doctrine. Case law firmly establishes a landlord’s responsibility to ensure its property is safe from dangerous conditions. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) Labor Code section 3852 firmly establishes an injured employee’s ability to sue a third-party tortfeasor regardless of an entitlement to workers’ compensation benefits.
Moreover, the Privette doctrine has been repeatedly applied in the context of a defendant hiring an independent contractor to perform work at the defendant’s property where and when the independent contractor’s employee was injured. (See SeaBright Ins. Co., supra, 52 Cal.4th 590, 598-603.) Defendant does not cite authority showing a landlord may apply the Privette doctrine against its leasee’s employee’s claims against the landlord.
Defendant’s citation to Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445 is not on point. In that case, Zamudio was a laborer who was injured at the City and County of San Francisco’s property. (Id. at pp. 447-448.) Zamunio was an employee of a company hired to perform construction work at City and County of San Francisco’s property. (Ibid.) As such, the Privette doctrine clearly applied in that context. The facts are distinguishable here because Plaintiff is not an employee of a contractor who is to preform work at Defendant’s property. Defendant essentially is asking the Court to invalidate Plaintiff’s right to sue Defendant under Labor Code section 3852 right by virtue of Plaintiff’s employment, which would essentially invalidate section 3852’s purpose. Further, even if Defendant did provide on-point authority, summary judgment would still be improper because Defendant failed to submit evidence that the stairs were under Plaintiff’s employer’s exclusive control.
The motion for summary judgment is DENIED.
Defendant is ordered to give notice of this ruling.
The parties are directed to the header of this tentative ruling for further instructions.
Case Number: BC700780 Hearing Date: August 05, 2020 Dept: 28
Motion to be Relieved as Counsel
Having considered the moving papers, the Court rules as follows. No opposing papers have been filed.
On April 4, 2018, Plaintiff Michele Barnett (“Plaintiff”) filed a complaint against Defendant 22301 S. Western Avenue, LLC (“Defendant”). Plaintiff alleges negligence and premises liability in the complaint for a trip and fall that occurred on May 24, 2017.
On June 26, 2020, Plaintiff’s counsel, David Azizi, Esq., filed a motion to be relieved as counsel pursuant to California Rules of Court rule 3.1362.
On June 30, 2020, the Court scheduled the motion to be heard on August 5, 2020.
A trial setting conference is scheduled for August 5, 2020.
Plaintiffs’ counsel, David Azizi, Esq. (“Counsel”), asks the Court to relieve him as counsel.
California Rules of Court, rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil form (MC-053)).
The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)
Counsel filed completed forms MC-051, MC-052, and MC-053. Counsel declares that a breakdown in the attorney-client relationship requires Counsel to no longer represent Plaintiff. Counsel served the completed forms on Plaintiff and Defendant.
The motion appears to be properly granted. There is no showing that Plaintiff would be prejudiced or the orderly process of justice would be disrupted because trial is not set.
However, there is no evidence showing Counsel gave Plaintiff or Defendant notice of the Court’s June 30, 2020 order setting the August 5, 2020 hearing date for this motion. As such, it is in the interest of justice to continue the hearing to afford the parties due process.
The hearing on the motion is CONTINUED to September 28, 2020 at 2:30 p.m. in Department 28 in Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.
Counsel is ordered to give notice of this ruling.
The parties are directed to the header of this tentative ruling for further instructions.