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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Brandon Rivera vs Hillpointe Construction Inc et al

Case No: 15CV02132
Hearing Date: Fri Jan 05, 2018 9:30

Nature of Proceedings: Motion to Compel; Motion for Summary Judgment

TENTATIVE RULINGS: The motion to compel is granted; Textron is ordered to provide verified responses to the request for production of documents, set one, served upon it by Hollister Business Park, Ltd. and Santa Barbara Capital, without objection, on or before January 16, 2018.

 

The motion for summary judgment filed by defendant and cross-defendant Citrix Systems, Inc., on the complaint, is denied for failure to meet its initial burden of proof. Even had the motion met its initial burden, triable issues of material fact exist which preclude the entry of summary judgment.

 

MOTION TO COMPEL: Defendants and cross-complainants Hollister Business Park, Ltd. and Santa Barbara Capital have moved for an order compelling cross-defendant Textron Systems Corporation to respond to its Request for Production of Documents, Set One, without objection. The demand was served by mail on September 19, 2017, making responses due on October 24, 2017. No extensions of time were requested, and no responses have been provided.

Textron has not opposed the motion. The Court has no information with respect to whether responses have been provided at any time since the filing and service of the motion.

Analysis: The motion to compel Textron to provide verified responses to the request for production of documents served upon it by Hollister Business Park, Ltd. and Santa Barbara Capital is granted. Textron is ordered to provide such verified responses, without objection, on or before January 16, 2018.

MOTION FOR SUMMARY JUDGMENT: Defendant and cross-defendant Citrix Systems, Inc. has moved for summary judgment on plaintiff’s complaint.

(1)        Facts

On and before August 30, 2013, Hollister Business Park, Ltd. (Hollister) owned property at 7406 Hollister Avenue, in Goleta, California. At that time, Santa Barbara Capital (SBC) was the property manager for the property. On June 1, 2006, Hollister leased 52,855 square feet of the property to Innovative Survivability Technologies, Inc. (the Prime Lease Agreement). On July 18, 2006, Innovative Survivability Technologies, Inc. assigned and transferred all of its rights and interests in the property pursuant to the Prime Lease Agreement to Textron Systems Corporation (Textron). At page 13, the Prime Lease Agreement required the Lessee to keep the premises, including but not limited to, “all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and skylights” in good order, condition, and repair. The Lessee’s obligations included “restorations, replacements, or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in such order, condition and state of repair.” It also stated that the lessee would have “non-exclusive rights to the Common Areas . . ., but shall not have any rights to the roof (except as reasonably necessary to access equipment placed on the roof in accordance with the terms of this Lease).”

On July 19, 2012, Textron subleased 26,557 square feet of the property to Citrix Systems, Inc. (Citrix). Pursuant to the Sublease Agreement, the terms and conditions of the Lease Agreement were incorporated into the Sublease and the sublessee was required to comply with the terms of the Prime Lease Agreement in the same manner as the sublessor. On February 28, 2013, Citrix entered into a sub-sublease agreement with Moog, Inc. (Moog) for 7,300 square feet of the property (Sub-Sublease). The Sub-Sublease provided that the terms and conditions of the Sublease Agreement were incorporated in the Sub-Sublease and the Sub-Sublessee was required to comply with all the terms of the Sublease. The Sub-Sublease also attached a copy of the Prime Lease Agreement as an exhibit.

Prior to August 30, 2013, SBC retained the services of Hillpointe Construction, Inc. (Hillpointe) to paint the exterior of the property. As part of the painting process, Hillpointe intended to pressure wash the exterior of the property, which required access to the only available sources of water, located on the roof of the property.

Citrix had no say in who SBC contracted with to paint the property. Hillpointe did not report to anyone at Citrix. Citrix did not contract with Hillpointe. Citrix did not direct the work of Hillpointe. However, Citrix and Moog controlled access to the roof for Hillpointe workers.

At this time, Hollister and SBC were aware that the skylights on the roof of the property were not in good condition and were in need of repair. Hollister attempted to have its tenant, Textron, repair the skylights, but Textron did nothing. Prior to the incident, neither Hollister nor SBC repaired the skylights on the roof of the property, nor did either entity place warning tape or warning signs on the stairwell leading up to the skylights or around the skylights advising individuals to stay away from the skylights.

Oscar Rivera, plaintiff’s decedent, was an employee of Hillpointe. While performing his duties, decedent was required to go on the roof to access the water source and supplies, and to store supplies at the end of the day. Citrix provided Mr. Rivera a badge to gain access to the roof.

While on the roof on August 30, 2013, decedent was caused to approach and/or come dangerously close to a skylight, make contact, and then fell through the skylight. Given the brittle and warn condition of the skylights, when decedent fell on it, the skylight lens compromised the structural integrity of the skylight and any potential to support his weight, which caused him to fall through, suffering fatal injuries. The skylight was located on the roof of the property, above the premises that Moog had sub-subleased from Citrix.

Citrix contends it did not own, possess, maintain or control the roof of the property at any time prior to or at the time of the incident. Citrix contends it did not own, possess, maintain or control the skylight from which plaintiff’s decedent fell at the property either prior to, or at the time of, the incident. While Citrix’s motion contends that Citrix had no notice of an alleged dangerous condition existing on the roof of the property prior to the incident, SBC employee Ryley Schultz testified at deposition that he believed Citrix commissioned a report at the time they moved into the property (prior to the date of the accident), which contained findings that the skylights were in an unsafe condition and required repair.

(2)        Motion

On July 24, 2016, plaintiff Brandon Rivera, decedent’s heir, filed his original complaint in this action for wrongful death. As relevant to this motion, plaintiff asserts his first cause of action for negligence and his third cause of action for premises liability against Citrix.

Defendant Citrix now moves for summary judgment or, alternatively, for summary adjudication. Citrix seeks summary adjudication of the first and third causes of action contending that it did not owe plaintiff or decedent a duty of care, that it did not breach a duty of care, and that it was not a substantial factor in causing harm.

As discussed below, plaintiff opposes the motion.

Analysis: The motion is denied for failure to meet its initial burden of proof. Even had the motion met its initial burden, triable issues of material fact exist which preclude the entry of summary judgment.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “[F]rom commencement to conclusion, the 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 matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

“A defendant … 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff['s] evidentiary submissions and strictly scrutinize defendant['s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff['s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

The principal point of contention, reflected in the separate statement facts, is whether Citrix had a contractual duty to maintain the Skylight. The non-existence of such a contractual duty is essentially the basis of Citrix’s motion; the existence of such a contractual duty is essentially the basis of plaintiff’s opposition.

“It is … solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865; accord, City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395.)

As recited in the facts above, the lease of 52,855 square feet of the property under the Prime Lease Agreement was assigned to Textron. Textron sub-leased 26,557 square feet of its leasehold to Citrix. In turn, Citrix sub-subleased 7,300 square feet of its sub-leasehold, including the portion of the building containing the skylight at issue in this action, to Moog. Each of the lease documents, including the sublease to Citrix, contain a provision in which the sublessee is expressly bound to perform and comply with the terms and obligations of the tenant in the Lease Agreement. One such obligation relates to maintenance:

“Subject to the provisions of Paragraphs 2.2, 2.3, 6.3 (Lessee’s Compliance with Applicable Requirements), 7.2 (Lessors Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee’s sole expense, keep the Premises, Utility Installations (intended for Lessee’s exclusive use, no matter where located), and Alterations in the same order, condition and repair as of the term commencement date (whether or not the portion of the Premises requiring repairs, or the means of repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of Lessee’s use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and skylights but excluding any items which are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices, specifically including the procurement and maintenance of the service contracts required by Paragraph 7.1(b) below. Lessee’s obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in such order, condition and state of repair, subject to reasonable wear and tear, damage by casualty and taking by eminent domain.” (Lease Agreement, § 7.1(a).)

The obligation of section 7.1(a) is contrasted with the lessor’s obligation set forth in section 7.2: “Subject to the provisions of Paragraphs 2.2, 2.3, 4.2, (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee’s Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or smoke detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, as well as providing the services for which there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall not be obligated to paint the exterior or interior surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or replace windows, doors or plate glass of the Premises. Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease.”

The condition of the Premises is the subject of section 2.2: “Lessor shall deliver that portion of the Premises contained within the Building (‘Unit’) to Lessee broom clean and free of debris on the Commencement Date, or the Early Possession Date, whichever first occurs (‘Start Date’), and, so long as the required service contracts described in Paragraph 7.1(b) below are obtained by Lessee and in effect within thirty (30) days following the Start Date, warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems (‘HVAC’), loading doors, if any, and all other such elements in the Unit, other than those constructed by Lessee, shall be in good operating condition on said date and that the structural elements of the roof, bearing walls and foundation of the Unit shall be free of material defects and the Premises do not contain hazardous levels of mold or fungi defined as toxic under applicable federal or state law. If a non-compliance with such warranty exists as of the Start Date, or if one of such systems or elements should malfunction or fail within the appropriate warranty period, Lessor shall, as Lessor’s sole obligation with respect to such matter, except as otherwise provided in this Lease, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, malfunction or failure, rectify same at Lessor’s expense. The warranty periods shall be as follows: one (1) year from the Commencement Date (the ‘Warranty Period’). If Lessee does not give Lessor the required notice within the appropriate warranty period, correction of any such non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee’s sole cost and expense (except for the repairs to the fire sprinkler systems, roof, foundations, and/or bearing walls - see Paragraph 7).”

Reading sections 2.2, 7.1(a), and 7.2 together, the Lease Agreement contemplates that for the first year of the term of the Lease Agreement, commencing June 1, 2006, the lessor warranted that the Premises were in good order, condition and repair, and except for those items for which the lessor expressly continued to have a maintenance and repair obligation, the repair and maintenance obligation for good order, condition, and repair was the obligation of the lessee. Skylights are expressly included as among the elements in the lessee’s maintenance and repair obligation and are not expressly included in the lessor’s obligation.

In support of its argument that no contractual duty of maintenance as to the skylights exist, Citrix points to section 1.2(a) of the Lease Agreement, which provides in full:

“Premises: That certain portion of the Project (as defined below), including all improvements therein or to be provided by Lessor under the terms of this Lease, commonly known by the street address of 7406 Hollister Avenue, located in the City of Goleta, County of Santa Barbara, State of California, with zip code 93117, as outlined on Exhibit A attached hereto (‘Premises’) and generally described as (describe briefly the name of the Premises): approximately 52,855 square feet of R&D space and manufacturing space in a full, separate building together with that certain outside fenced vehicle parking and storage area indicated in Exhibit A. In addition to Lessee’s rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof (except as reasonably necessary to access equipment placed on the roof in accordance with the terms of this Lease), exterior walls or utility raceways of the building, containing the Premises (‘Building’) or to any other buildings in the Project. Neither Lessor nor Lessee shall lease or otherwise provide space on the roof or at the Premises to any third parties for wireless, cellular or other related technology or purposes. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the ‘Project’ (See also Paragraph 2).”

Citrix interprets the “shall not have any rights to the roof” as meaning that Citrix has no obligation of repair of the skylights, which are obviously installed on the roof. The full sentence including this language begins with: “In addition to Lessee’s rights to use and occupy the Premises …, Lessee shall have non-exclusive rights to the Common Areas ….” Thus, the no-rights to the roof phrase is stated as an exception to the “non-exclusive rights to the Common Areas.” “Common Areas” are defined in section 2.7: “The term ‘Common Areas’ is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways and installations within the Unit that are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Leases and other tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas.” When the introductory part of the sentence is included and compared with the definition of “common area,” the no-rights to the roof language excludes the roof from common area to the extent it is otherwise included, with the exception to the exception that the roof may be used for necessary access. Rather than suggesting that the lessee has no obligation to maintain skylights in good order and repair as expressly stated in section 7.1(a), section 1.2(a) provides the lessee with the right to use the roof in order to have access to the skylights notwithstanding not having general access rights to the roof as common area.

On the facts and evidence presented in this motion, considered under the standards applicable to summary judgment, the Court concludes that Citrix has failed to meet its burden on summary judgment to establish, on undisputed facts, that it has obligation to repair or maintain the skylights in its subleased premises in good repair, including that portion it sub-subleased to Moog. Conversely, a reasonable inference from the evidence presented is that Citrix had a contractual duty to repair and maintain the property and, in particular, the skylight at the time of the incident.

Citrix claimed further that it had no notice of any dangerous condition, relying upon the conclusory declaration statement of an employee of one of Citrix’s subsidiaries, who fails to provide any factual basis to support the conclusory claim, simply declaring that “[p]rior to the Incident involving plaintiff’s decedent, Citrix had no notice of an alleged dangerous condition existing on the roof of the Subject Property.” Even had that statement been properly supported by evidentiary facts to establish the employee’s personal knowledge of the conclusion, it has been controverted by evidence submitted by plaintiff in opposition to the motion. Plaintiff relies upon the deposition testimony of Ryley Schultz, an employee of property manager SBC, who testified that he had received a report commissioned by Citrix at about the time it moved into the property, and prior to the date of the accident, which contained findings that the property’s skylights were in an unsafe condition and required repair.

In its reply, Citrix reasserts that it can have no premises liability for plaintiff’s injuries and damages, because it was not the owner, possessor, or controller of the property. It points to Hollister as the “owner”, Moog as the “possessor,” and property manager SBC as the “controller” of the property. It provides no authority to establish that only one entity can be an owner, possessor, or controller, although its argument appears to so contend. Citrix further relies upon a 1930 appellate court decision to argue that, as sub-sublessor, it could have no liability for plaintiff’s injuries and damages, because any liability it might otherwise have had was assumed by Moog when it sub-subleased the premises. The case does not support Citrix’s position, and even militates toward a finding of responsibility under the circumstances in this case.

Specifically, Citrix cites Hamelin v. Foulkes (1930) 105 Cal.App.458, 462, where the First District Court of Appeal stated:

“The lessee and not the lessor is ordinarily liable for injuries to third persons occasioned by the negligence of the lessee or due to a defective condition of the premises occurring after the beginning of the lease. (Citation omitted.) This liability of the lessee exists irrespective of the covenants of the lease relating to repairs, and arises by virtue of his exclusive possession and control of the premises. The right of the lessee to possession and control of the premises is accompanied by a corresponding duty to exercise ordinary care in the use and maintenance of the premises so as not to occasion injuries to third persons.”

First, the case had little to do with exculpating a landlord, and primarily addressed the lessee’s contentions that the lessor, and not the lessee, should have premises liability for plaintiff’s personal injuries. Further, even the portion quoted states that the rule is “ordinarily” that the lessee and not the lessor is liable. Additionally, a later portion of the very paragraph quoted by Citrix states that a landlord is not liable to third persons except for defects in the premises which existed when the property was let to the tenant. Here, there is evidence before the Court that Citrix had notice and knowledge prior to the occurrence of the accident that the skylights—which it had contractually agreed to keep in good repair—were in an unsafe condition and required repair. As a result, even under its cited case, it is not absolved of liability for injuries sustained as a result of the dangerous condition of the skylights, simply because it sub-subleased to Moog the portion of the premises where the incident occurred to Moog.

The Court has reviewed the two evidentiary objections submitted by plaintiff, and sustains both objections.

For all of the foregoing reasons, the motion for summary judgment filed by defendant Citrix is denied.

 
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