Geolin Trading v. Luc















Filed 2/21/13 Geolin Trading v. Luc CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE




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GEOLIN TRADING, INC., et al., Plaintiffs and Appellants, v. KENNY LUC, Defendant and Respondent.

B237530 (Los Angeles County Super. Ct. No. BC446864)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Rolf M. Treu, Judge.
Affirmed in part and reversed in part.

Kenner Law
Group and Jason J.L. Yang for Plaintiffs and Appellants Geolin Trading, Inc.
and Linda Xiang.

Early,
Maslach & O’Shea, Thomas J. Conroy; Law Offices of Roxanne Huddleston and
Roxanne Huddleston for Defendant and Respondent Kenny Luc.

——————————

>

Plaintiffs
Geolin Trading, Inc. (Geolin) and Linda Xiang (Xiang) appeal summary judgment
in favor of Kenny Luc, their commercial landlord. Luc leased warehouse premises to plaintiffs
which contained a fire sprinkler system that was triggered when the plaintiffs
opened a rolling door that hit one of the sprinkler heads, causing extensive
flooding of plaintiffs’ inventory. Luc
obtained summary judgment on the
basis that he had no duty to maintain the premises under the terms of the
lease. We reverse with respect to
plaintiffs’ claim for negligence.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

>1. Factual
Background

In February
2008, plaintiffs rented a warehouse from defendant Luc located at 2604
Chico Avenue, South El Monte.
On June 8, 2010, a sprinkler
system that was part of the indoor fire safety system discharged, causing
extensive water damage to plaintiffs’ inventory.

The
sprinkler system consisted of pipes hanging from the ceiling, and a portion of
it was near a rolling door at a loading dock that retracted to the
ceiling. When plaintiffs retracted the
door, the door contacted one of the sprinklers, causing it to discharge. Plaintiffs were unable to turn off the
sprinkler system because the valve was either locked or sealed. The sprinkler system discharged water into
the warehouse for 20 minutes until the fire department turned the valve
off. Plaintiffs suffered $422,269.38 in
damage to their inventory.

Quining
“George” Xu, an employee of Geolin, worked at the warehouse on a regular
basis. If Xu observed a maintenance
issue, he would report it to Xiang, who would call the landlord. Before the flooding incident in June 2010, Xu
did not recall any problems with the sprinkler system, and did not observe
anyone come to inspect it. Xu was
unaware that anyone ever had a problem with the rolling door hitting the
sprinkler system.

However, in
late 2008, Xu observed contractors, who had not been hired by plaintiffs,
repairing and maintaining the rolling door and dock. The workers repaired the door brackets and
oiled the door’s rollers. When the
sprinkler system went off on June 8,
2010, Xu attempted to shut it off at the main fire service valve
but could not do so because it was sealed.

Luc’s
predecessor had the fire protection sprinklers installed in 2002. During plaintiffs’ tenancy, Luc had the
system inspected in April 2009; at the time, no problems were detected. After the sprinkler system flooded the
warehouse, Luc had an independent contractor repair the sprinkler heads. Luc disputed that the shut off valve
contained a lock that could be keyed, and maintained that it was sealed rather
than locked—as Xu’s own testimony demonstrated.

After the
flooding, plaintiffs had the sprinkler system inspected by an expert. The inspection disclosed that the sprinkler
head which the door hit was about one inch away from the door because a bank of
fluorescent lights was in direct contact with one of the pipes. There was damage to the sprinkler head
consistent with being hit by the door.
According to National Fire Protection Association standards, at least
one inch must be maintained between a fire sprinkler head and building
components, but fire sprinkler heads that are near a rolling door need more
clearance. Further, the expert opined
that sprinkler valves are normally locked in an open position with a key and
padlock, and Luc’s failure to provide Geolin with a key was a cause of the
damage.

The lease
between the parties provided at paragraph 3 that “Lessee acknowledges that the
premises are in good order and repair, unless otherwise indicated herein. Lessee shall, at his own expense and at all
times, maintain the premises in good and safe condition, including plate glass,
electrical wiring, plumbing and heating installations and any other system or
equipment upon the premises and shall surrender the same, at termination herein
in as good [a] condition as received, normal wear and tear excepted.”

Paragraph
11 of the lease provided that, “To the extent of the law, Lessor shall not be
liable for any damage or injury to Lessee, or any other person, or to any
property, occurring on the demised premises or any part thereof. Lessee agrees to indemnify and hold Lessor
harmless from any claims for damages which arise in connection with any such
occurrence.”

2. Procedural Background

Plaintiffs’
complaint alleged claims for negligence, breach of contract, and professional
negligence.href="#_ftn1" name="_ftnref1"
title="">[1] Plaintiffs asserted that the sprinkler system
was defective and dangerous; defendant had knowledge of its condition;
defendant had a duty to disclose the condition of the sprinkler system; and
defendant failed to disclose the defects in the sprinkler system.

Defendant
moved for summary judgment, arguing he had no duty to maintain the sprinkler
system, as set forth in paragraph 3 of the lease; and even if the lease did not
exonerate him of any duty to maintain the premises, he had no notice of a
dangerous condition. Plaintiffs
contended that the defects in the premises occurred before they took
possession, and repair of such defects was the responsibility of the
defendants. In reply, defendants
asserted that the language of the lease controlled, and in the lease plaintiffs
acknowledged the premises were in safe condition when they leased them.

The trial
court granted the motion, and entered judgment for defendant.

>DISCUSSION

Plaintiffs
argue that Luc owed them a duty to deliver the premises in a safe condition,
and that he peformed that duty negligently because Luc improperly installed the
sprinkler system; they further argue that Luc breached the lease agreement by
failing to give them access to the sprinkler valve; and they established
triable issues of fact with respect to both of these issues. Luc contends he satisfied his duty to inspect
the sprinkler system; he cannot be liable for unknown defects in the sprinkler
system; the undisputed evidence establishes that the sprinkler discharged
because of faulty maintenance, which was Geolin’s duty to perform; and Luc was
not required to give plaintiffs a key to the sprinkler valve.

I. STANDARD OF REVIEW

“[T]he
party moving for summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that he is entitled to judgment as a href="http://www.fearnotlaw.com/">matter of law.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the
burden shifts to the [other party] to show that a triable issue of one or more
material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1); >Aguilar, at p. 850.) A triable issue of material fact exists where
“the evidence would allow a reasonable trier of fact to find the underlying
fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (>Aguilar, at p. 850.) Where summary judgment has been granted,
“[w]e review the trial court’s decision de novo, considering all of the
evidence the parties offered in connection with the motion (except that which
the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports.” (>Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 476.)

II. DANGEROUS CONDITION OF
PREMISES

The rule
that a landlord is liable for dangerous conditions of property leased to a
tenant generally applies to those conditions that cause personal injury. The law requires a landlord to use ordinary
care to eliminate a dangerous condition on its property over which it has
control. (>Salinas> v. Martin (2008) 166 Cal.App.4th 404,
412.) “A ‘dangerous condition’ [of
public property] is defined as ‘a condition of property that creates a
substantial (as distinguished from a minor, trivial or insignificant) risk of
injury when such property . . . is used with due care in a
manner in which it is reasonably foreseeable that it will be used.’” (Cerna
v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.) “A dangerous condition exists when public
property ‘is physically damaged, deteriorated, or defective in such a way as to
foreseeably endanger those using the property itself,’ or possesses physical
characteristics in its design, location, features or relationship to its
surroundings that endanger users.
[Citation.]” (>Id. at pp. 1347–1348.)

Thus, more precisely applicable
here is the rule that with respect to a tenant’s personal property, absent an
express covenant in the lease, a commercial landlord has no duty to maintain or
repair the premises, which the exception of those common areas used by public
and other tenants, and those areas over which the landlord retains control.> As
a result, duties to repair and responsibility for damage to personal property
are left to the terms of the commercial lease, and may be allocated as the
parties see fit. (Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666,
671.) Thus, although landlords have a
duty to prevent personal injury in both the residential and commercial context,
a commercial landlord has no duty to safeguard the property of his or her
tenant (Royal Neckwear Co. v. Century
City, Inc. (1988) 205 Cal.App.3d 1146, 1151) absent a showing of negligence
on the landlord’s part (Shanander v.
Western Loan & Bldg. Co. (1951) 103 Cal.App.2d 507, 511).

Applying
these principles, in Butt v. Bertola (1952)
110 Cal.App.2d 128, the plaintiff tenant leased a ground floor store for a
sandwich and grocery business. The plumbing
and sewer system was in poor repair, causing sewage water to leak onto
plaintiff’s personal property. The
defendants, after being informed of the leak, undertook inadequate repairs. As a result, sewage water damaged plaintiff’s
inventory. (Id. at pp. 129–131.)
The landlord attempted to rely on an exculpatory clause in the lease
that stated, “‘It is agreed by the parties hereto, that said Lessor shall not
be liable for damages to any goods, property, or effects in or upon said
demised premises, caused by gas, water, or other fluid from any source
whatsoever.’” (Id. at p. 138.) The >Butts court determined that such
language did not exempt the landlord from the consequences of his active
negligence in failing to properly fix the leaks. (Id. at
pp. 138, 140.) Similarly, in >Burnett v. Chimney Sweep (2004) 123
Cal.App.4th 1057, the plaintiff tenant leased a retail shop from defendant
landlord, but soon discovered mold in the property. The plaintiff alleged this constituted a
dangerous condition and requested the landlord to repair it, but the landlord
refused. (Id. at pp. 1061–1062.) In
moving for judgment on the pleadings, the landlord relied on a provision in a
lease that exempted him from liability for damage to the tenant’s
property. (Id. at p. 1062.) The >Burnett court rejected this, finding
that given the broad language of the exculpatory clause, the court must make
“‘an inquiry into the circumstances of the damage or injury and the language of
the contract; of necessity, each case will turn on its own facts.’” (Id. at
p. 1066.) Thus, the landlord was not, as
a matter of law, shielded from active negligence. (Id. at
p. 1068.)

Here,
factual issues exist whether the exculpatory clause of the lease shields Luc
from his own conduct that may have amounted to negligence. Luc entered onto the premises on two
occasions during the term of the lease either to inspect or to make
repairs: once to the sprinkler system,
and once to the door mechanism. This
voluntary assumption of a duty to inspect and repair—performed after execution
of the lease and not required by the lease—nonetheless had to be peformed in a
non-negligent manner, even in the face of the language of paragraphs 3 and 11
of the lease. “[T]he volunteer who,
having no initial duty to do so, undertakes to come to the aid of
another . . . is under a duty to exercise due care in
performance and is liable if . . . the harm is suffered
because of the other’s reliance upon the undertaking. [Citation.]”
(Williams v. State of California (1983)
34 Cal.3d 18, 23.)

As a
result, given that the facts establish Luc, although not obligated by the
lease, may have undertaken inspection and repair of the sprinkler system and/or
rolling door, there was a factual issue concerning what caused the sprinkler
system to go off—whether the sprinkler head was dangerously close to the
rolling door because it was improperly installed or inspected, or whether the
rolling door was repaired negligently causing it to hit the sprinkler head—the
trial court erred in granting summary judgment.href="#_ftn2" name="_ftnref2" title="">[2] Further, factual issues exist whether Luc was
required to give plaintiffs access to the shut off valve, factual issues exist
whether the valve was locked or sealed, and required a key or a tool to open
it, or whether such access was impossible because the valve was sealed in
accordance with standard fire safety practice.
However, these factual issues only extend to plaintiffs’ negligence
claim, as the duties asserted do not arise from the Lease and hence do not
support a claim for breach of contract.

The dissent
argues that plaintiffs did not plead the lack of access to the shut-off valve
in their complaint, and thus cannot raise this fact to defeat summary
judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) Defendants failed to raise this point in the
trial court, thereby waiving the issue.
(Superior Dispatch, Inc. v.
Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 193.) The dissent would counter any finding of
waiver by pointing out that the waiver cases involved defendants raising a
defense for the first time on summary judgment.
This distinction (even if we agree that it is accurate) offers no
rationale for confining the rule to defenses as opposed to causes of action. The scope of summary judgment is framed by the
issues raised in the pleadings, be it a complaint or an answer. (Nieto
v. Blue Shield of California Life & Health Ins. Co. (2010) 181
Cal.App.4th 60, 73.) In any event, even
if we were to agree that defendants did not waive the issue, a party may request
and be granted leave to amend a pleading at any stage of the proceedings if
substantial rights are affected. (>Cruey v. Gannett Co. (1998) 64
Cal.App.4th 356, 367.) Finally, we note
that access to the shut-off valve is not the plaintiffs’ main theory of
liability because the lack of access did not cause their damages, but only
increased them.

>DISPOSITION

The judgment is reversed on the cause of action for
negligence against Luc. In all other
respects, the judgment is affirmed.
Appellants are to recover their costs on appeal.

NOT TO BE PUBLISHED.



JOHNSON,
J.



I concur:



MALLANO, P. J.

Rothschild, J., dissenting:



I believe that the superior court correctly determined
that there are no disputed issues of material fact. I therefore respectfully dissent.

The
undisputed facts show that Luc cannot be held liable for negligently installing
or maintaining the sprinkler system. Luc
had the system professionally inspected in 2009. The system passed inspection and was
certified for five years. The accident
took place in 2010. There is no evidence
that Luc did anything to the sprinkler system or to the garage door between the
inspection and the accident. There is
also no evidence that at any time between the inspection and the accident Luc
had any reason to believe that there might be a problem with the system. Thus, assuming for the sake of argument that
Luc had a duty to maintain the sprinkler system with reasonable care, the
undisputed facts show that he discharged that duty. Defendants raised this argument in their
motion for summary judgment, and the argument is sound.

The only remaining issue is plaintiffs’ claim about
access to the main control valve for the sprinkler system. Plaintiffs did not plead this theory in their
complaint, so it cannot be used to defeat summary judgment. Plaintiffs’ only response to this procedural
point is that Luc waived it by failing to raise it in the trial court. The authorities that plaintiffs cite,
however, involved unpleaded defenses that were first raised by defendants in
their own motions for summary judgment.
Plaintiffs cite no authority for the proposition that a >plaintiff may defeat a >defense motion for summary judgment by
advancing an unpleaded theory of liability, or that the defense’s failure to
raise this procedural point in the trial court forfeits the point for purposes
of appeal. I am aware of no such
authority. The allegations of the
operative complaint frame the issues for summary judgment. “A party cannot successfully resist summary
judgment on a theory not pleaded.” (>Roth v. Rhodes (1994) 25 Cal.App.4th
530, 541.)

I also do not believe that
plaintiffs introduced sufficient evidence to support their unpleaded theory
concerning the main control valve. But
we need not reach that issue, because of the procedural bar.

For all of the foregoing reasons, I respectfully dissent.



ROTHSCHILD,
J.