Stoltzman v. Kruger

Filed 1/3/08 Stoltzman v. Kruger CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gerald Rosenberg, Judge. Affirmed.

Law Offices of William J. Houser and William J. Houser for Plaintiff and Appellant.

Gibbs, Giden, Locher & Turner, Theodore L. Senet, Gary E. Scalabrini and Philip C. Zvonicek for Defendants and Respondents.

_________________________

I.

INTRODUCTION

Plaintiff and appellant David Stoltzman (appellant) tripped and fell on property owned by defendants and respondents Dietmar Kruger and Gonzalo Espinoza (collectively respondents). At the time of the accident, the property was not in possession of respondents, but in the possession of subtenants.

In appellants personal injury lawsuit against respondents, the trial court granted summary judgment to respondents. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.[1]

a. The property.

In 1978, respondent Kruger bought 10100 National Boulevard and 10120 National Boulevard, Los Angeles. In 1979, respondent Espinoza purchased an undivided one-half ownership interest in these properties. Respondents entered into an oral agreement providing that respondent Kruger would have possession of the portion of the property located at 10120 National Boulevard and respondent Espinoza would have possession of the portion of the property located at 10100 National Boulevard. Respondents also orally agreed that each would have exclusive use of their respective portions of the property. Since 1978, respondent Kruger has had exclusive use of 10120 National Boulevard, where he operated a construction company.

The two portions of the property were separated by a metal fence that had been installed in approximately 1996 or 1997.

In January 2002, respondent Espinoza entered into a written lease with Concord Towing for 10100 National Boulevard for a period of three years, beginning January 1, 2002. The leased premises consisted of a parking area and a small office. Clause 23 of the written lease permitted respondent Espinoza to enter the property to inspect, show the property to purchasers or lenders, and make necessary or desirable repairs, improvement or additions.[2]

Prior to entering into the lease, respondent Espinoza conducted a visual inspection of the leased premises. He inspected the parking area and the office, as well as the offices entry and exit. During the inspection, respondent Espinoza did not find any visible defects or hazards on the leased premises. He also was not aware of any visible defects or hazards.

At the commencement of the lease, there was a shallow depression in front of the leased office on the leased premises. This acted as a drain. There was no concrete elevation at the doorway. Prior to January 2002, the property located at 10100 National Boulevard had been leased for nearly 20 years and there had been no problems.

The leased portion of the property (10100 National Boulevard) was enclosed by a metal fence. Access into this property was through a sliding metal gate with a lock located on the side of the property.

Upon entering into the lease, Concord Towing was given exclusive use and control of the parking area and the office located at 10100 National Boulevard. Concord Towing put its own padlock on the gate. Respondents did not have a key for the metal gate.

In February 2002, respondent Espinoza entered 10100 National Boulevard to do some painting and tile work. At the time, he saw that the shallow depression was still located in front of the office. He did not observe any visible defects or hazards on the property.

Sometime after January 2002, Concord Towing subleased the property to Metro Towing.

b. The accident.

On the evening of March 22, 2003, appellant went to 10100 National Boulevard to retrieve his vehicle that had been impounded by Metro Towing. A sign on the property read Metro Road Service. The entrance gate was closed and locked. Appellant gained entrance when someone opened the gate. Appellant walked into the property through the parking area and entered the office. Appellant did not trip as he entered the office.

As appellant left the office, he tripped and fell on a two to four inch concrete lip that ascended outside the office door threshold.

In September 2003, appellant notified respondents that he had sustained injuries when he tripped and fell at the Metro Towing office. Thereafter, respondent Espinoza inspected the premises. During this inspection, respondent Espinoza discovered, for the first time, that the entrance to the office had been altered. The drainage depression in front of the office had been filled with a concrete patch. This was the first time respondent Espinoza had entered the property since February 2002.

Between January 1, 2002 and December 2003, respondent Kruger never entered the leased premises at 10100 National Boulevard.

After the accident, the current tenants removed the concrete patch and installed a grate over the drainage depression.

2. Procedure.

Appellant sued respondents alleging they negligently owned, maintained, managed and operated the leased property at 10100 National Boulevard.

Respondents filed a motion for summary judgment. Respondents asserted they could not be liable for appellants injuries because they did not possess or control the premises, did not construct any improvements on the leased property, and had no constructive or actual notice of the condition that caused appellants injuries. Respondents attached to their motion their declarations, as well as one from their attorney. They also attached to the summary judgment motion excerpts from appellants deposition.

In opposing the motion, appellant contended respondents were liable for his injuries because respondents breached their duty to repair a dangerous and illegal drainage condition existing on the property. Appellant argued respondents were liable because they had a duty to inspect the property and because respondents knew or should have known of the dangerous condition. Appellant further asserted that the drainage problem was an obvious and known dangerous condition and it was foreseeable that repairs thereto would be done dangerously. Appellant claimed the depression in the ground was not shallow and it was approximately 26 inches from the building wall. He claimed that the slope of the property was downhill. Appellant reasoned as follows: (1) the depression was insufficient to catch the water that came from the buildings roof that had no gutters; (2) the rain would drop from the roof to the ground, flow downhill and into the office; and (3) in an attempt to fix this drainage problem, an open trench had been dug into the pavement approximately 26 inches from the building, which was later filled with concrete. Appellant claimed that a visual inspection on January 24, 2002, easily would have shown this dangerous condition and that it required repair.

In opposing the summary judgment motion, appellant submitted his declaration, as well as those from his attorney (William J. Houser), and a civil engineer, Steve Norris. Appellant also attached photographs.

Respondents filed a reply and objected to the declarations and photographs submitted by appellant.

The trial court sustained almost all of respondents evidentiary objections. By its evidentiary rulings, the trial court eliminated from consideration most of the evidence appellant had submitted to support his factual theory.[3] As part of its evidentiary rulings, the trial court indicated that paragraphs 11, 12, and 13 of Norriss declaration were not admissible. However, the trial court also stated in its ruling that these paragraphs were admissible and they explained that the area where appellant fell was improperly configured and dangerous as there was inadequate drainage. (In these paragraphs, Norris explained that a reasonable inspection of the premises in January 2002 would have revealed that the depression was positioned approximately 26 inches from the buildings wall, and in light of the buildings overhang and the expected flow of rain water, the depression would have been inadequate to handle rain water.)

The trial court ruled that appellant had raised a triable issue of fact as to the reasonableness of respondent Espinozas inspection of the premises in January 2002. However, the trial court ruled it was undisputed that sometime after the January 2002 inspection, the premises was altered with the pouring of concrete. The trial court ruled that appellant had not presented any evidence raising a triable issue of fact as to whether respondent Espinoza knew or should have known that the tenant or the subtenant had altered the condition of the premises. Given that respondents did not occupy, possess, or maintain the property at the time of the accident, the trial court granted summary judgment to respondents.

Appellant appeals from the subsequently entered judgment. We affirm.

III.

DISCUSSION

A. Standard of review.

Following the applicable standard, we review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citations.] (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368, 374; Davis v. Marin (2000) 80 Cal.App.4th 380, 384.)

B. Landlords responsibility to third persons.

Landowners are bound by the duty of ordinary care in the management of their property. (Civ. Code, 1714, subd. (a).) However, [t]he general duty of care owed by a landowner in the management of his or her property is attenuated when the premises are let because the landlord is not in possession, and usually lacks the right to control the tenant and the tenants use of the property. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369.)

[T]he landlords relinquishment of the rental premises to a tenant generally imposes on the tenant, not the landlord, the duty to protect others from dangerous conditions on those premises. (Uccello v. Laudenslayer [(1975)] 44 Cal.App.3d [504,] 510-511; Prosser & Keeton, Law of Torts (5th ed. 1984) 63, p. 434 [In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee. . . .]; see Rowland v. Christian (1968) 69 Cal.2d 108, 119-120 [residential tenant liable for dangerous condition within area of leasehold].) (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1176-1177.)

Thus, landlords generally are not liable for injuries from conditions that arise after the tenant has taken control of leased property, and over which the landlord has no control. (Alcaraz v. Vece, supra, 14 Cal.4th at pp. 1157-1159; Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 511; Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 101-102; Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1133, fn. 4.) Landlords do not have any responsibility for accidents occurring after their property is transferred to a tenant if the property was not dangerous when transferred to the tenant, used in the manner for which it was intended, and the lessor-owner had given up control of the property. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1605-1606; Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 780-782; Bisetti v. United Refrigeration Corp. (1985) 174 Cal.App.3d 643, 650.)

However, turning the property over to a tenant does not totally abrogate the landlords liability in all situations. (Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at p. 781.)

In the exercise of reasonable care, landlords must make a reasonable inspection of property when they transfer property to their tenants and when the lease is renewed or assigned. (Resolution Trust Corp. v. Rossmoor Corp., supra, 34 Cal.App.4th at pp. 102-103; Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at p. 781; Portillo v. Aiassa, supra, 27 Cal.App.4th at p. 1134.)

The landlords duty to inspect the premises after the tenant takes possession is not absolute, but depends upon whether he or she had some reason to know there is a need for an inspection. (Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at p. 781; Bisetti v. United Refrigeration Corp., supra, 174 Cal.App.3d at p. 649.) Whether a landowner has a duty of inspection is a question of law. (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1162, fn. 4 [duty question of law]; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 & fn. 15.) When the case involves the liability of a landowner, the determination of duty involves balancing a number of factors, the most important of which is the foreseeability of harm.[4] (Delgado, supra, at p. 237, fn. 15; Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

Any duty of the landlord to inspect the premises within the possession and control of the tenant is limited to an obligation to act reasonably. Landlords are subject to liability if a reasonable inspection would have revealed the dangerous condition or if the landlord could remedy the problem. (Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at pp. 781-782.)

If the landlord has such degree of control over the premises such that the landlord can obviate the presence of the danger of which the landlord knows or should know, then the landlord must exercise reasonable care in remedying the problem. (Resolution Trust Corp. v. Rossmoor Corp., supra, 34 Cal.App.4th at p. 101; Uccello v. Laudenslayer, supra, 44 Cal.App.3d at pp. 511-512; Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at pp. 781-782.) However, no liability will be imposed on a landlord if the landlord did not know nor should have known of the dangerous condition in the exercise of reasonable care. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206;cf. Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.)

Assuming a landlord has a duty to inspect, whether that landlord breached that duty and whether the dangerous condition would be discovered by a reasonable inspection, are questions of fact. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 131, overruled on other grounds in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678; Mora v. Baker Commodities, Inc., supra, 210 Cal.App.3d at p. 782, fn. 9.)

Lastly, even if a landowner has breached a duty owed to a person coming onto the landowners property, liability is not imposed unless that breach of duty caused the persons injuries. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 773-774; Sandoval v. Bank of America(2002) 94 Cal.App.4th 1378, 1383-1384.) Causation is generally a question of fact, but may be decided as a matter of law if reasonable minds cannot differ. (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 9.)

C. The trial court properly granted summary judgment.

Appellants theory is that respondents knew or should have known that there was a dangerous condition on the leased premises at the time the property was leased. According to appellant, the depression in the ground was obviously inadequate to deal with the drainage problem and, thus, it was foreseeable that anyone who leased the property would take measures to fix this condition, and it was foreseeable that the remedial measures would be done negligently. Thus, according to appellant, it was foreseeable that a tenant would, for example, negligently pour concrete into the drainage depression.

For purposes of discussion, we accept the trial courts conclusion that the facts raise a triable issue of fact as to the reasonableness of respondent Espinozas January 2002 inspection. However, appellant has not presented sufficient evidence to raise a triable issue of fact as to whether a reasonable inspection would have revealed a dangerous condition or respondents should have remedied any problem. Rather, the only evidence in this regard is that there had been no problems with the leased property for some 20 years before it was leased to Concord Towing.[5] Further, there is no evidence respondents knew the premises had been altered, they should have expected it to be altered, or they knew concrete had been poured into the trench. Respondents had no information that the flow of water caused a problem warranting correction. There was no information that the drainage depression created a danger or that the drainage problem might cause anyone harm. There was no information that there was an unreasonable risk of harm to anyone who might come on the property. Thus, respondents are not liable to appellant as there are no triable issues of fact as to whether appellant breached any duty owed.

Even though appellant did not discuss causation in the trial court, appellants opening brief on appeal focuses on causation. As noted above, causation may be decided as a matter of law if reasonable minds cannot differ. (Milligan v. Golden Gate Bridge Highway & Transportation Dist., supra, 120 Cal.App.4th at p. 9.) Because appellant has not demonstrated that he raised a triable issue as to breach, we need not discuss causation.[6] We note, however, it is a stretch for appellant to suggest respondents should have known that the purported drainage problem required altering the drainage depression, and that anyone doing so would pour cement into it, such that a two- to four-inch cement lip would create a tripping hazard. The link between any potential failures of respondents and appellants accident is too attenuated. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 775-776 [mere possibility of causation is insufficient; speculation and conjecture cannot be sufficient].)

IV.

DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] In that the matter comes to us upon the granting of a summary judgment motion, we construe the facts in the light most favorable to appellant as he opposed the motion. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 148; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) However, the trial court sustained objections to the content of much of the evidence submitted by appellant. Thus, we may not consider that evidence. (Code Civ. Proc.,  437c, subd. (d).)

[2] Clause 23 of the written lease, entitled Landlords Right to Inspection stated in part: Landlord and Landlords agent shall have the right to enter the Premises at reasonable times for the purpose of inspecting same, showing the same to prospective purchasers or lenders, and making such alterations, repairs, improvements or additions to the Premises or to the building of which the Premises are a part as Landlord may deem necessary or desirable.

[3] On appeal, appellant does not contest these evidentiary rulings.

[4] Some factors that courts consider in determining the existence and scope of a duty in a particular case are: [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants 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. [Citation.] (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5, citing Rowland v. Christian, supra, 69 Cal.2d at p. 113; see also, Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at p. 237, fn. 15.)

[5] A photograph shows that there was a sign on the property reading, Metro Towing. For purposes of discussion, weassume that this would have put respondents on notice that the property was sublet to Metro Towing and at that time, respondents would have had an obligation to inspect the property. However, appellant does not argue that an inspection at the time of the sublease would have revealed information different than that revealed in the January 2002 inspection. Thus, this fact does not alter our analysis.

[6] Appellant discusses duty in his reply brief.