Jenkins v. 130 Woodruff Apartment Co.

Filed 8/25/08 Jenkins v. 130 Woodruff Apartment Co. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

^{APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Sahagun, Judge. Reversed.}

^{Samuel O. Ogbogu, Inc. and Samuel O. Ogbogu for Plaintiff and Appellant.}

^{Law Offices of Lydia Bouzaglous-Newcomb and Robert Cohen for Defendants and Respondents.}

^{____________________}

Uchenna Jenkins appeals from the judgment entered after the trial court granted summary judgment in favor of 130 Woodruff Apartment Company and Santa Fe Management, Inc. (collectively Woodruff) in her wrongful death action arising from the electrocution of her daughter. Jenkins contends the trial court erred in ruling, as a matter of law, Woodruff had no duty to replace unprotected electrical outlets with protected outlets in the bathroom of Jenkinss apartment. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Isioma Ufele, Jenkinss 11-year-old daughter, was killed in June 2003 while using an electric shaver in the bathtub. In March 2005 Jenkins filed a wrongful death lawsuit, alleging causes of action for premises liability and general negligence against Woodruff, as well as a claim for negligent infliction of emotional distress on behalf of Ufeles sister, who had witnessed the electrocution. As developed during pretrial proceedings, Jenkins alleged Woodruff was negligent in failing to replace traditional outlets or receptacles in the Jenkinss bathroom with ground fault circuit interrupter (GFCI) receptacles ‑‑ which are designed in part to protect against electrocution of the type that killed Ufele ‑‑ during several maintenance projects in the apartment.

After answering Jenkinss complaint, Woodruff moved for summary judgment, arguing, as a matter of law, it had had no duty to install GFCI receptacles in the bathroom under either the common law negligence standard of care or the requirements of the City of Bellflowers building and safety code, relied upon by Jenkins and her expert witness to assert a theory of negligence per se. In opposition to the motion for summary judgment, Jenkins presented evidence the maintenance projects in her apartment had included the replacement of various receptacles, some with GFCIs and others with new, non-GFCI receptacles. In particular, an invoice from Santa Fe Management dated December 1, 1999 indicated one such rehabilitation project included the replacement of light fixtures in the Jenkinss bathroom; the invoice also contained a line-item reading, Change all outlets and switches.

The trial court granted Woodruffs motion, concluding Jenkinss expert had misread the statute and there was, in fact, no governing law requiring Woodruff to replace non-GFCI receptacles with GFCIs while performing maintenance or rehab projects on the Jenkins apartment. The court also ruled Woodruff had no common law duty to replace the receptacles.

DISCUSSION

1. Standard of Review

We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc., 437c, subd. (c).) When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiffs cause of action. Alternatively, the defendant may present evidence to show[] that one or more elements of the cause of action . . . cannot be established by the plaintiff. (Code Civ. Proc.,  437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).)

[T]he defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence. (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1002-1003.) Once the defendants initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action. (Code Civ. Proc., 437, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)

On review of an order granting summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing partys evidence and strictly scrutinizing the moving partys. (ORiordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)

2. The Trial Court Erred in Granting Woodruffs Motion for Summary Judgment

a.       A property owners duty to exercise reasonable care

The liability of property owners for injuries sustained by individuals on their premises is generally governed by ordinary negligence principles, as set forth in Civil Code section 1714, subdivision (a).[1] (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The controlling question is whether the property owner has acted as a reasonable person in the management of his or her property in view of the probability of injury to others. (Ortega v. KMart Corp. (2001) 26 Cal.4th 1200, 1205.)

A landowner is negligent if he or she fails to use reasonable care to discover any unsafe conditions on the property and to repair, replace or give adequate warnings of anything that could reasonably be expected to harm others. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 [property owners must maintain land in reasonably safe condition]; see Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [[b]roadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on property or failed to take reasonable steps to secure its property against criminal acts by third parties]; Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590 [[a]n owner of property is not an insurer of safety, but must use reasonable care to keep the premises in a reasonably safe condition and must give warning of latent or concealed perils]; see generally Judicial Council of Cal. Civ. Jury Instns. (2006) CACI No. 1001.) Whether the property owner has acted as a reasonable person in the management of the property depends on a number of factors including the likelihood of injury and the probable seriousness of such injury. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371-372.)

b.      Woodruff owed a duty of care to Jenkins and failed to establish it exercised reasonable care as a matter of law

Although the trial court and the parties phrase the ground on which summary judgment was granted as one of duty, in fact the issue presented was one of breach. There is no question as a landowner Woodruff owed a duty of care to Jenkins to ensure her property was reasonably safe, for [a] landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises. (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134; see Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435 [[a]s a general principle, a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous]; Lundy v. California Realty (1985) 170 Cal.App.3d 813, 819 [same]; see generally Rest.2d Torts, 343 [[a] possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he [] (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and [] (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and [] (c) fails to exercise reasonable care to protect them against the danger].)[2]

To ask specifically, as the trial court did, whether all landlords who have buildings constructed prior to 2002 are under an obligation, under a duty, to change the outlets to GFCI outlets is to confuse the question of the existence of a duty with the question whether the duty to exercise reasonable care has been breached under particular circumstances. To be sure, confusing these two inquiries is common in both the informal vernacular of practicing lawyers and the usually more precise language of judicial opinions. But if the concept of duty ‑‑ a question of law for the court (see Rowland v. Christian, supra, 69 Cal.2d at pp. 112-113) ‑‑ can be so described, then the notion of breach ‑‑ generally a question of fact for the trier of fact (see, e.g., Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278; Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838) ‑‑ would be virtually stripped of all meaning. (See Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1223-1224 (dis. opn. of Kennard, J.) [[i]n treating breach as if it were part of the duty analysis, and thus an issue of law for the trial court to decide, the court usurps the role of the jury as trier of fact.].)[3]

In Pineda v. Ennabe, supra, 61 Cal.App.4th 1403, cited by Woodruff, the court held a property owner was not liable for the death of a child who fell through a screen as he was jumping on a bed beside a window because, as a matter of law, the property owner did not owe a duty to warn the childs parents of the danger or to provide a window screen that would have prevented the fall: A parent oblivious to the obvious danger posed to an unsupervised child near an open upper story window would likely be equally oblivious to a warning. Latches on screens potentially could be left unfastened by careless tenants, or could be unfastened by unsupervised children. Bars, or permanently closed screens, might reduce the risk of falling out but create a new, serious risk of trapping occupants during a fire. The risk of being trapped during a fire, unlike the falling hazard, could not be minimized by parental care and common sense. Thus a legally imposed duty to install bars could cause as much harm as it avoided. (Id. at p. 1408.) This analysis may be sound, but it is the analysis of breach, not of duty. The weighing of the probability of harm, the extent of the harm if it were to occur and the burden on the defendant to avoid the harm is the archetypal reasonableness, or breach, analysis. (See, e.g., Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 372 [question of reasonableness requires examination of myriad factors, including, at a minimum, [t]he likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessors degree of control over the risk-creating condition]; see generally Rest.2d Torts, 291-293.)

In light of the unassailable proposition that Woodruff, as the owner and manager of the apartment complex, owed a duty of care to Jenkins and her child to ensure their apartment was reasonably safe, the trial courts order granting summary judgment can be affirmed only if we conclude on this record, as a matter of law, it was reasonable for Woodruff not to replace traditional receptacles with GFCIs during the course of performing maintenance on the apartment. (Cf. Victor v. Hedges (1999) 77 Cal.App.4th 229, 243-244 [undisputed facts establish defendant did not subject plaintiff to unreasonable risk of harm; no reasonable trier of fact could come to different conclusion].) However, as discussed, to satisfy its initial burden as the moving party seeking summary judgment, Woodruff had to present sufficient evidence to conclusively negate this element of Jenkinss common law negligence cause of action or demonstrate Jenkins could not establish that Woodruffs conduct was unreasonable. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1002-1003; Aguilar, supra, 25 Cal.4th at pp. 849, 855, fn. 23.)

Woodruffs moving papers offered insufficient proof to satisfy either of those requirements with respect to the element of reasonableness. At most, Woodruff established it had responded adequately to all of Jenkinss specific requests for repairs to the apartment and Jenkins never reported any electrical problems; in addition, it proffered evidence that suggested it had, in general, reasonably maintained the apartment building. Woodruff also presented evidence and argument to the effect that neither the County of Los Angeles nor the City of Bellflower required installation of GFCI receptacles in existing, non-conforming buildings. Although this evidence, if credited and considered in the aggregate, may be sufficient to persuade a jury Woodruff had acted reasonably in not converting the Jenkinss bathroom electrical outlets, it fails to conclusively establish that Woodruffs failure to upgrade the receptacles was reasonable or demonstrate an absence of ability on Jenkinss part to prove this element of her negligence cause of action. As a result, Woodruff failed to meet its initial burden and shift to Jenkins the obligation to demonstrate a triable issue of material fact on the question of breach. (See, e.g., Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 373 [reversing summary judgment where evidence does not conclusively establish that no rational inference of negligence can be drawn under the circumstances of this case]; Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1838 [breach of duty generally presents a factual question preventing summary judgment].) Summary judgment was therefore improper.[4]

c.      The trial court erred in granting summary judgment on the negligence per se claim based on its finding no statutory duty required Woodruff to replace non-GFCI receptacles in Jenkinss bathroom

Under the negligence per se doctrine, codified in Evidence Code section 669, violation of a statute gives rise to a presumption of negligence ‑‑ the failure to exercise due care ‑‑ in the absence of justification or excuse, provided the person suffering the death or injury . . . was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Evid. Code, 669;[5] see Ramirez v. Nelson (Aug. 4, 2008, S143819) __ Cal.4th ___, ___ [2008 Cal. Lexis 9474].) To the extent use of the doctrine in a particular case involves statutory interpretation or the application of the statute to undisputed facts, it is, of course, a question of law for the court. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Scottish Rite Cathedral Assn. of Los Angeles v. City of Los Angeles(2007) 156 Cal.App.4th 108, 115.) Whether the defendant violated a statute, on the other hand, is normally a question for the trier of fact. (Ramirez, at p. ___.)

In granting Woodruffs motion for summary judgment, the trial court accepted Woodruffs argument ‑‑ and rejected that of Jenkinss expert ‑‑ that no statute or ordinance required Woodruff to replace non-GFCI receptacles with GFCIs when performing maintenance on the Jenkins apartment. Yet examining the relevant code provisions submitted to the trial court, it is apparent, if Woodruff replaced non-GFCI receptacles in the bathroom with other non-GFCI receptacles, it did so in violation of the City of Bellflowers municipal code. Specifically, section 9-2.1 of the Bellflower Municipal Code, adopted June 14 1999, provides: [T]he Los Angeles County Electrical Code[], adopting by reference . . . the 1998 California Electrical Code . . . is hereby adopted by reference as the Electrical Code of the City of Bellflower. The 1998 California Electrical Code, in turn, incorporates, verbatim, sections of the National Electrical Code (NEC), including section 210-7, subdivision (d)(2), which states: Ground-fault circuit-interrupter protected receptacles [GFCIs] shall be provided where replacements are made at receptacle outlets that are required to be so protected elsewhere in this code.[6] NEC section 210-8, subdivision (a), also incorporated in the 1998 California Electrical Code, expressly provides all 125-volt, single-phase, 15- and 20-ampere receptacles installed in bathrooms shall have ground-fault circuit interrupter protection for personnel.

These requirements were in place at the time the maintenance or rehab work was done on the Jenkinss bathroom in December 1999. Accordingly, replacement of existing non-GFCI receptacles with new, non-GFCI receptacles would have violated Bellflowers Electrical Code, creating a rebuttable presumption of negligence on the part of Woodruff. (See Evid. Code, 669, subd. (b).) As discussed, Jenkins presented evidence that the project included replacement of the bathroom light fixtures and a related invoice indicated the workers also changed all outlets and switches. However, since its motion for summary judgment was predicted on the contention it had no obligation to replace the receptacles, there was no reason for Woodruff to address whether the outlet used by Ufele for the electric shaver was a new, non-GFCI outlet replaced during Jenkinss tenancy. Because the governing code provisions require only that a replacement outlet shall be a GFCI, not that existing non-GFCI outlets, left untouched, be replaced with GFCIs, a triable issue of material fact must be resolved before it can be determined if Woodruff violated its statutory obligation to replace non-GFCI receptacles with GFCIs in the Jenkinss bathroom.[7] Accordingly, as to this claim, as well, the trial court erred in granting Woodruffs motion.

DISPOSITION

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Jenkins is to recover her costs on appeal.

^{NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS}

^{PERLUSS, P. J.}

^{We concur:}

^{WOODS, J.}

^{ZELON, J.}

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[1] Civil Code section 1714, subdivision (a), provides, Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully by want of ordinary care, brought the injury upon himself or herself.

[2] Woodruff itself acknowledged this duty in its moving papers in the trial court, arguing it had fulfilled [its] duty of care to the plaintiff by keeping the property reasonably safe.

[3] This is not a case where an exception to the general principle of duty may be warranted by public policy. (Rowland v. Christian, supra, 69 Cal.2d at p. 112 [[a]lthough it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy]; see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [shopping center owner did not owe duty to tenants employee, who was raped on tenants premises, to provide security guards in common areas].)

[4] Jenkins also asserts Woodruffs failure to replace the non-GFCI receptacles was per se negligent as a breach of the Civil Code provision creating an implied warranty of habitability in rental housing. (See Civ. Code, 1941 [[t]he lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable].) However, at least in the circumstances of this case, whether the non-GFCI receptacles constituted a dangerous condition that rendered the premises uninhabitable turns on a reasonableness standard similar to that of common law negligence. (See, e.g., Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205-1206 [implied warranty of habitability gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling and corrected any defects disclosed by that inspection that would render the dwelling uninhabitable [and] that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable. [Fn. omitted.] A tenant injured by a defect in the premises, therefore, may bring a negligence action if the landlord breached its duty to exercise reasonable care.]; see generally Rest.2d Property, 17.6 [landlord is subject to liability for physical harm caused to the tenant . . . by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: [] (1) an implied warranty of habitability . . .].) In light of our conclusion that summary judgment was improper on Jenkinss negligence claim, this closely related claim, if pursued, must also be resolved by the trier of fact.

[5] Evidence Code section 669, subdivision (a), provides, The failure of a person to exercise due care is presumed if: [] (1) He violated a statute, ordinance, or regulation of a public entity; [] (2) The violation proximately caused death or injury to person or property; [] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

[6] From the initial complaint through her reply brief on appeal, Jenkins has improperly cited to the 2002 version of this NEC provision, section 406.3, which as Woodruff observes ‑‑ and the trial court found ‑‑ was not in place in 1999 when the maintenance work in question occurred at the Jenkins apartment. Notwithstanding this miscitation, the exhibits attached to each document citing the Bellflower Electrical Code or the NEC included section 210-7 of the 1996 version of the NEC, the predecessor to section 4.06.3. Section 210-7 was in effect at the time of the electrical work at issue and was incorporated by reference into the Bellflower code. Although this repeated error by Jenkinss counsel is hard to explain, because the correct, controlling 1996 NEC section was attached to the documents filed by Jenkins, Woodruff was not denied an adequate opportunity to address the relevant provision.

[7] Woodruff cites section 81-2, subdivision (b)(1), of the City of Bellflower Electrical Code, which states an electrical permit shall not be required for [m]inor repair work such as the replacement of lamps, switches, receptacle devices and sockets which were previously permitted and inspected under a valid electrical permit. Whether the maintenance or rehab project was minor is a question of fact, but is not, in any event, material to a determination of Jenkinss negligence per se theory. Whether or not a permit from the city is required for a project does not determine whether the replacement of old, non-GCFI outlets with new, non-GCFI outlets violated other provisions of the citys electrical code.