This case was last updated from Los Angeles County Superior Courts on 08/04/2020 at 13:36:23 (UTC).

SHANAY CHEATHAM VS SHLOMO BOTACH

Case Summary

On 04/11/2018 SHANAY CHEATHAM filed a Personal Injury - Other Personal Injury lawsuit against SHLOMO BOTACH. 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, STEPHEN M. MOLONEY and DANIEL M. CROWLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1756

  • Filing Date:

    04/11/2018

  • 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 Judges

CHRISTOPHER K. LUI

STEPHEN M. MOLONEY

DANIEL M. CROWLEY

 

Party Details

Plaintiff and Petitioner

CHEATHAM SHANAY

Defendants and Respondents

BOTACH SHLOMO

DOES 1 TO 20

BOTACH SHLOMO DBA BOTACH MANAGMENT

Defendant and Cross Plaintiff

BOTACH SHLOMO DBA BOTACH MANAGMENT

Cross Defendants

AHMAD MOHAMED HAJ

BOTHAC MANAGEMENT

QUARUM ABBA HAIRDRY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

MARCHIONDO PHILIP L. ESQ.

Defendant, Respondent and Cross Plaintiff Attorneys

MANNING & KASS ELLROD RAMIREZ TRESTER

ROSENTHAL SHARI LYNNE

Cross Defendant Attorney

BENSON MARVIN LLOYD

 

Court Documents

Order - ORDER PROPOSED ORDER

2/10/2020: Order - ORDER PROPOSED ORDER

Objection - OBJECTION OBJECTIONS TO EVIDENCE FILED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

12/13/2019: Objection - OBJECTION OBJECTIONS TO EVIDENCE FILED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Separate Statement

12/5/2019: Separate Statement

Notice of Ruling

10/31/2019: Notice of Ruling

Request for Entry of Default / Judgment

6/20/2019: Request for Entry of Default / Judgment

Minute Order - Minute Order (Hearing on Motion for Order to Compel Responses to Requests f...)

1/17/2019: Minute Order - Minute Order (Hearing on Motion for Order to Compel Responses to Requests f...)

Certificate of Mailing for - Certificate of Mailing for [Minute Order (Hearing on Motion for Order to Compel Responses to Requests f...)]

1/17/2019: Certificate of Mailing for - Certificate of Mailing for [Minute Order (Hearing on Motion for Order to Compel Responses to Requests f...)]

Declaration - Declaration of PHILIP L. MARCHIONDO IN OPPOSITION TO DEFENDANT'S MOTION FOR AN ORDER TO DEEM THE TRUTH OF MATTERS IN REQUESTS FOR ADMISSIONS ADMITTED AND CONCLUSIVELY ESTABLISHED

1/4/2019: Declaration - Declaration of PHILIP L. MARCHIONDO IN OPPOSITION TO DEFENDANT'S MOTION FOR AN ORDER TO DEEM THE TRUTH OF MATTERS IN REQUESTS FOR ADMISSIONS ADMITTED AND CONCLUSIVELY ESTABLISHED

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

12/13/2018: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Notice of Rejection - Fax Filing

11/29/2018: Notice of Rejection - Fax Filing

Proof of Personal Service - Proof of Service of Summons

11/9/2018: Proof of Personal Service - Proof of Service of Summons

Proof of Personal Service - Proof of Service of Summons

11/9/2018: Proof of Personal Service - Proof of Service of Summons

Proof of Personal Service - Proof of Service of Summons

11/9/2018: Proof of Personal Service - Proof of Service of Summons

Order - Order Re: Motion for leave to file cross-complaint

10/25/2018: Order - Order Re: Motion for leave to file cross-complaint

Notice of Ruling - Notice of Ruling on Defendant's Motion for Leave to File Cross-Complaint

10/26/2018: Notice of Ruling - Notice of Ruling on Defendant's Motion for Leave to File Cross-Complaint

Notice of Change of Address -

9/4/2018: Notice of Change of Address -

SUMMONS -

4/11/2018: SUMMONS -

47 More Documents Available

 

Docket Entries

  • 04/12/2021
  • Hearing04/12/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Order for Sale of Dwelling

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  • 11/05/2020
  • Hearing11/05/2020 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 10/23/2020
  • Hearing10/23/2020 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 03/16/2020
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 03/02/2020
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Held - Continued

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  • 03/02/2020
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 02/28/2020
  • DocketWitness List; Filed by Quarum Abba Hairdry (Cross-Defendant)

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  • 02/27/2020
  • DocketWitness List; Filed by Quarum Abba Hairdry (Cross-Defendant)

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  • 02/10/2020
  • DocketOrder (Proposed order); Filed by Shlomo Botach (Defendant)

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  • 02/04/2020
  • DocketNotice (Notice of filing proof service of application for order determining good faith settlement); Filed by Shlomo Botach (Defendant)

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60 More Docket Entries
  • 09/07/2018
  • DocketMotion for Leave; Filed by Shlomo Botach (Defendant)

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  • 09/04/2018
  • DocketNotice of Change of Address

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  • 09/04/2018
  • DocketNotice of Change of Address or Other Contact Information; Filed by Shanay Cheatham (Plaintiff)

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  • 07/11/2018
  • DocketDEFENDANT SHLOMO BOTACH'S ANSWER TO COMPLAINT FOR PREMISES LIABILITY

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  • 07/11/2018
  • DocketAnswer; Filed by Shlomo Botach (Defendant)

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  • 06/13/2018
  • DocketProof-Service/Summons; Filed by Shanay Cheatham (Plaintiff)

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  • 06/13/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/11/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 04/11/2018
  • DocketComplaint; Filed by Shanay Cheatham (Plaintiff)

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  • 04/11/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC701756    Hearing Date: December 19, 2019    Dept: 4A

Motion for Summary Judgement

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 11, 2018, Plaintiff Shanay Cheatham (“Plaintiff”) filed a complaint against Defendant Shlomo Botach alleging negligence and premises liability for a trip-and-fall that occurred on April 11, 2016.

On September 17, 2018, Plaintiff filed amendments to the complaint renaming Doe 1 as Defendant Botach Management, Doe 2 as Defendant Mohammed Haj Ahmad, and Doe 3 as Defendant Qamar Abbas Hairdry.

On October 26, 2018, Defendant/Cross-Complainant Shlomo Botach dba Botach Management Company filed a cross-complaint against Defendant/Cross-Defendant Mohamed Haj Ahmad and Cross-Defendant Qamar Abbas Haidry.

On June 20, 2019, the Court entered default against Defendant Mohamed Haj Ahmad.

On September 30, 2019, Defendant/Cross-Complainant Shlomo Botach dba Botach Management Company filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

Trial is set for March 16, 2020.

PARTYS REQUEST

Defendant/Cross-Complainant Shlomo Botach dba Botach Management Company (“Moving Party”) asks the Court to grant summary judgment in its favor and against Plaintiff arguing that (1) Moving Party did not control or possess the property where Plaintiff was injured, (2) Moving Party did not have actual knowledge of the alleged dangerous condition, and (3) Moving Party inspected the property before executing the leases on the property.

LEGAL STANDARD

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(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.”  (Id.)  “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).)

DISCUSSION

The elements for premises liability are: 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 to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  The existence and scope of duty are legal questions for the court.  (Id. at p. 36.)  If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their [customers’] use or to give a warning adequate to enable them to avoid the harm.”  (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

The general Civil Code §1714(a) duty of care requires landlords to conduct a reasonable safety inspection of the leased premises before transferring possession.  (Becker v. IRM Corp. (1985) 28 Cal.3d 454, 468-69 (overturned on other grounds in Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1210); see also Mora v. Baker Commodities Inc. (1989) 210 Cal.App.3d 771, 780 (in a commercial lease, if the property “was safe when transferred to the tenant, used in the manner for which it was intended and the lessor/owner has given up control of the property, the commercial landlord cannot be held responsible for accidents occurring after the property is transferred.”))

Moving Party’s undisputed material facts establish the following. The buildings at 5569 S. Sepulveda and 5571 S. Sepulveda share this parking lot.  (UMF No. 5, p. 3:13-3:16.)  

Moving Party’s undisputed material facts also establish the following.  On August 5, 2009, Defendant executed a lease with Defendant/Cross-Defendant Mohamed Haj Ahmad (“Ahmad”) for 5569 S. Sepulveda.  (UMF No. 6, p. 3:18-3:24.)  Ahmad took possession of this property in August of 2009.  (UMF No. 8, p. 4:5-4:8.)  On January 12, 2016, Defendant executed a lease with Defendant/Cross-Defendant Abbas Haidry (“Haidry”) for 5571 S. Sepulveda.  (UMF No. 9, p. 4:9-4:16.)  Haidry took possession of this property in February of 2016.  (UMF No. 11, p. 4:22-4:25.)  On April 11, 2016, Ahmad was in possession of 5569 S. Sepulveda and Haidry was in possession of 5571 S. Sepulveda.  (UMF Nos. 12-13, pp. 4:27-5:11.)

Moving Party’s undisputed material facts further establishes the following.  Paragraph 2.4 of both Ahmad’s and Haidry’s leases states “Lessee acknowledges that . . . it has been given an opportunity to inspect and measure the Premises, . . . [and] it has been advised by Lessor and/or Brokers to satisfy itself with the condition of the Premises.”  (UMF No. 14, p. 5:13-5:21.)  Paragraph 7.1(a) of both Ahmad’s and Haidry’s leases states “Lessee shall . . . keep the Premises . . . in good order, condition and repair . . . including . . . parking lots . . . located in, on, or adjacent to the Premises.”  (UMF No. 15, pp. 5:22-6:4.)  Paragraph 7.2 of both Ahmad’s and Haidry’s leases states “it is intended by the Parties hereto that Lessor [has] no obligation in any manner whatsoever, to repair and to maintain the Premises . . . all of which obligations are intended to be that of the Lessee.”  (UMF No. 16, p. 6:6-6:14.)

Moving Party’s undisputed material facts lastly establish the following.  Moving Party inspected the subject parking lot before the execution Ahmad’s lease and Haidry’s lease.  (UMF Nos. 17, 19, pp. 6:15-6:23, 7:8-7:16.)  Moving Party was never notified by either Ahmad or Haidry of potholes in the subject parking lot after executing their respective leases and before the filing of this action.  (UMF Nos. 18, 20, pp. 6:25-7:7, 7:18-7:26.)  Moving Party did not exercise control over the property leased to Ahmad or Haidry after granting possession to each of them.  (UMF Nos. 21, 24, p. 8:2-8:6, 8:22-8:26.)  Moving Party did not know there were any potholes in the parking lot from the times that Moving Party gave Ahmad and Haidry possession of the property through the date Plaintiff filed her lawsuit.  (UMF No. 27, p. 9:17-9:24.)

The Court finds Moving Party has met its burden.  Based on his undisputed facts, Moving Party did not have possession or control over the parking lot when Plaintiff tripped and fell.  Rather, Ahmad and Haidry had possession and control over the parking lot at that time.  Additionally, it was Ahmad’s and Haidry’s responsibility to maintain the parking lot under their leases.  Moving Party received no notice of potholes in the parking lot since the relinquishment of control and possession of the parking lot to Ahmad and Haidry.  Moreover, Moving Party conducted a reasonable inspection of the parking lot before transferring control and possession of the parking lot to Ahmad and Haidry.  As such, the burden shifts to Plaintiff.

Plaintiff submitsthe declaration of her attorney in opposition to Moving Party’s motion for summary judgment.  Plaintiff’s attorney declares that his law firm was located close to the subject parking lot for 15 years prior to 2017.  (Marchiondo Decl., ¶ 3.)  Plaintiff’s attorney declares that he hit the subject pothole many times in 2014 and 2015 while getting lunch at a Buffalo Wings & Pizza in that shopping center.  (Ibid.)

The Court finds Plaintiff has met her burden of demonstrating triable issues of fact with respect to Moving Party actual or constructive notice of the pothole during a time when he had possession and control over the parking lot.  Plaintiff’s attorney’s declaration shows that the pothole that Plaintiff tripped and fell from existed on Moving Party’s parking lot before the execution of the lease to Haidry in 2016.  As such, Plaintiff raises triable issues of fact about whether Moving Party had actual notice of the potholes based on the inspection of the parking lot he conducted before conveying possession and control of the parking lot to Haidry and, if not, whether the inspection he conducted at that time was reasonable.  Accordingly, Plaintiff has met her burden.

The Court notes that it does not consider Moving Party’s objections because they relate to evidence the Court does not consider here.

The motion is DENIED.

Moving Party is ordered to give notice of this ruling.