Opinion
NOT TO BE PUBLISHED
Received for posting 9/5/07.
Alameda County Super. Ct. No. VG04153398
Haerle, J.
I. INTRODUCTION
Lynette Jones and her son, Joshua Lisenbe, a minor by and through his guardian ad litem, John David Grainger, brought suit against several defendants, alleging injury as a result of exposure to mold in their unit of a new apartment building. They appeal from the trial court’s ruling granting summary judgment to Los Gatos Construction Company, Inc. (Los Gatos), the framing subcontractor for the building. We will reverse.
Appellants inform us that the action continues against the other defendants and was set for trial on May 4, 2007.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellants rented apartment number 102 in a new apartment complex, Owl’s Landing Apartments, on Herman Avenue in Livermore, California, from January 2001 to April 2004. On April 29, 2004, appellants filed a complaint for damages against defendants Eden Housing Management, Inc., Livermore Housing Associates, LP, Baywood Apartments, Inc., and Does 1-100, alleging that they were injured while living in the apartment as a result of exposure to mold.
On May 27, 2005, appellants filed their first amended complaint alleging (1) negligence, (2) breach of the implied warranty of habitability, (3) negligent maintentance of the premises, (4) maintenance of a nuisance, and (5) failure to warn of a latent defect. The complaint alleges that “the roof covering the premises leased by plaintiffs, and its supporting structures, were so defectively and negligently designed, constructed and maintained that the roof allowed water to leak into the cavity above the ceiling in the premises leased by plaintiffs, which thereby caused various toxic molds to grow and flourish in the interior cavities of those premises, such as above the ceiling and behind the walls, with the result that mold spores found their way into the interior of the premises.”
On November 18, 2005, appellants substituted Los Gatos for Doe 44 and, in so doing, alleged that Los Gatos was “in some manner responsible for the design, construction and/or maintenance of the complex.”
On July 21, 2006, Los Gatos moved for summary judgment or, in the alternative, for summary adjudication of issues, contending that there was no merit to any of appellants’ causes of action. Appellants dismissed the second, third, and fourth causes of action as to Los Gatos, and opposed summary judgment on theories of negligent maintenance (first cause of action) and negligent failure to warn (fifth cause of action).
The following evidence was produced in support of this motion. The general contractor for the construction of the Owl’s Landing apartment complex was Bogard Construction Company, Inc. (Bogard Construction). Bogard Construction entered into a subcontract with Los Gatos for the rough framing and finish carpentry of the buildings, including the windows. Los Gatos did not install the roofs. Kuhlman Roofing, Inc. (Kuhlman) was the roofing subcontractor.
Bogard is another defendant in this action. Bogard filed a motion for summary judgment at the same time as Los Gatos. Appellants filed a combined memorandum opposing both motions, but submitted separate statements of undisputed and disputed facts in opposition to each motion. Bogard’s motion for summary judgment was denied by the trial court, and Bogard is not a party to this appeal.
Kuhlman is also a defendant in this action.
Building one of the complex at 842 Herman Avenue had six apartments: three on the first floor and three on the second. Appellants’ unit 102 was the middle unit on the ground floor of that building.
A. The 2001 Roof Leak in Appellants’ Apartment, Unit 102
On January 16, 2001, one month before appellants moved in, the Owl’s Landing resident manager, Shirleen Woodley, faxed a warranty repair request to Bogard Construction. It stated, “Bldg. 1 - Unit 102. In bedroom #2, there is swelling in the ceiling & a crack is next to it.”
On January 17, 2001, Scott Kanode of Bogard Construction faxed the warranty repair request to Los Gatos with a hand-written note to Steve Soltis at Los Gatos: “This unit has shed roof above bedroom w/siding -- please check out ASAP -- (like Catalonia).” The note also stated, “Call me.”
On January 25, 2001, Steve Soltis of Los Gatos faxed a note back to Bogard Construction. It was addressed to “Tony/Scott,” and stated: “We have been on site three times this month 1/17, 1/19 and 1/24 to follow up on leak in unit 102. We think it’s fixed, no water was noticeable on 1/24. We want to check one more time then you can close in.” Soltis testified that Greg Thompson and Brian Sullivan were the Los Gatos foremen who went to the apartment building; Soltis himself was present in the unit once during that time. According to Soltis, Los Gatos thought the bedroom window was leaking, so they took off the trim. They never checked the roof. Greg Thompson remembered going to the apartment building once in response to a report of a leak. He did not recall doing a water test, but did remember a four- to six-inch round stain on the ceiling in the bedroom of the empty apartment. Brian Sullivan recalled investigating a leak at Owl’s Landing Apartments, but he was not sure when; it could have been in 2001 or 2002.
Appellants moved into their apartment in February 2001. The move-in inspection form signed by Woodley and Lynette Jones documented, “Swelling in ceiling in #2 bdrm caused by water leak. (Los Gatos/”
In 2003, appellant Lynette Jones complained of a roof leak above her apartment to Arlene Henry, who was the resident manager from October 2002 until May 2004. Jones called Henry and spoke with her or left voicemails on five separate occasions within a month regarding the leak. Henry inspected the ceiling in the second bedroom of appellants’ apartment, and saw the spot. Jones informed her that the leak had been present since before Henry came to Owl’s Landing, and needed to be repaired. Henry searched the files and found the move-in inspection form that documented the water damage on the ceiling in February 2001. Henry called both Bogard Construction and Los Gatos and was told that the leak had been fixed. Jones continued to complain, but Henry told her the leak had been fixed and that the spot on the ceiling would be repainted. Jones then contacted Henry’s supervisor, Jade White, about the problem. White suggested to Henry that she have a roofing company come and look at the roof.
On April 16, 2003, Dennis Steinmetz of Acker & Guerrero Roofing Co. met with Henry and then inspected the roof above appellants’ apartment and found the leak. Steinmetz advised, “There are two problems related to this leak. The primary reason for leakage is a saddle flashing and step shingle that are improperly installed. The blue pen in the photo is inserted into a small gap where water can pour inside. Several shingles need to be removed and the flashings reworked so they are lapped and installed properly. Shingles will be replaced to complete the repair. [¶] A contributing factor is the adjacent downspout. Water cannot escape quickly enough from the bottom because its [sic] set against the splash block and the flow is partially restricted. About two inches needs to be removed from the bottom of the downspout. We further recommend an elbow be attached to divert water away from this critical area.”
B. The 2002 Roof Leak in Apartment 101
In 2002, appellants’ neighbor in unit 101 complained of a leak in her apartment. Woodley inspected the apartment, saw evidence of damage in the ceiling, and, on March 6, 2002, faxed a warranty repair request to Bogard Construction. It stated, “Bldg 1 Unit 101 Ceiling is leaking in bedroom #2. There are two spots -- one’s dripping the other is bowing.”
On March 7, 2002, Brad Bogard faxed this request to Los Gatos, asking that Los Gatos “look into this leak problem at Owls Landing.”
On March 12, 2002, Steve Soltis of Los Gatos faxed a note, two photographs and the March 6, 2002, warranty repair request back to Bogard Construction. The note stated: “Brad[:] Please find attached photo of leak area above unit 101. We ran water test with hose in down spout from roof above. Water backed up in down spout and ran under outside corner flashing and into unit. Looks like a roofing problem.” A note on the warranty repair request stated: “Water test by [Los Gatos] 3/11/02 roof leaking.”
On October 4, 2006, the motion was heard and taken under submission. On October 19, 2006, the court issued its order granting summary judgment. On November 2, 2006, judgment was entered.
On November 13, 2006, a timely notice of appeal was filed.
III. DISCUSSION
Appellants contend Los Gatos owed them a duty of care as a result of its undertaking to investigate the roof leak, and that there is a triable issue of fact as to whether Los Gatos breached its duty. Respondent contends it undertook nothing beyond the scope of work contained in its contract with Bogard Construction.
Neither the trial court’s order nor either of the parties’ briefs to us (no appellant’s reply brief was filed) separately addresses appellants’ fifth cause of action, i.e., their claim for “negligent failure to warn.” Rather, the order and the briefs address only, as discussed below, the existence or non-existence of a general “duty of care” owing by Los Gatos to appellants. In view of both the state of affairs and our disposition of the case regarding the “duty of care” issue, we conclude that appellants’ fifth cause of action remains viable, too.
A. Standard of Review
Los Gatos’s summary judgment motion was properly granted “ ‘if all the papers submitted show that there is no triable issue as to any material fact and that [Los Gatos] is entitled to a judgment as a matter of law.’ ” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612 (Artiglio), quoting Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained by the court, and we must view the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) To be entitled to summary judgment, Los Gatos must either conclusively negate a necessary element of appellants’ case or demonstrate that “under no hypothesis is there a material issue of fact that requires the process of trial . . . . [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Artiglio, supra, 18 Cal.4th at p. 612.)
B. The Negligent Undertaking Theory of Liability
The essence of appellants’ claim is that Los Gatos negligently performed a duty that it had voluntarily undertaken. Thus, we consider whether there is a triable issue of material fact as to Los Gatos’s liability under the negligent-undertaking theory of liability articulated in the Restatement Second of Torts, section 324A (section 324A).
Section 324A provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if [¶] (a) his failure to exercise reasonable care increases the risk of such harm, or [¶] (b) he has undertaken to perform a duty owed by the other to the third person, or [¶] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
The Supreme Court has previously observed that “[t]he published text of section 324A uses ‘protect’ rather than ‘perform,’ ” which “apparently reflects a typographical error.” (Paz, supra, 22 Cal.4th at p. 558, fn. 6; Artiglio, supra, 18 Cal.4th at p. 613, fn. 4.)
Our analysis is guided by the Supreme Court’s seminal cases on the negligent undertaking theory, which provide that when someone who is under no obligation to provide a service to another voluntarily undertakes to do so, that person will be regarded as having assumed a duty to provide that service, and will be liable for negligent acts or omissions in performing that duty. (Paz v. State of California (2000) 22 Cal.4th 550, 558-559 (Paz); Artiglio, supra, 18 Cal.4th at pp. 612-613; see also 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 868, pp. 234-235.)
“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor [here, Los Gatos] undertook, gratuitously or for consideration, to render services to another [here, Bogard Construction]; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons [appellants]; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor’s failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking.” (Paz, supra, 22 Cal.4th at p. 559, citing Artiglio, supra, 18 Cal.4th at pp. 613-614.) In sum, recovery under this theory requires proof of each of the elements of a negligence cause of action, i.e., duty, breach, proximate cause, and damages. (Paz, supra, 22 Cal.4th at p. 559; Artiglio, supra, 18 Cal.4th at pp. 613-614.)
1. Fact Issue Regarding the Sufficiency of the Undertaking
“ ‘The threshold element in a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court.’ [Citations.]” (Artiglio, supra, 18 Cal.4th at p. 614.)
In addition, for the negligent undertaking theory of liability to be applicable, the actor “ ‘must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking, there can be no correlative duty to perform that undertaking carefully.’ [Citation.]” (Artiglio, supra, 18 Cal.4th at pp. 614-615.) The issue of whether a defendant’s alleged actions, if proven, would constitute an “undertaking” sufficient to give rise to an actionable duty of care is a legal question for the court. (Artiglio, supra, 18 Cal.4th at p. 615.)
However, as the Artiglio court points out, in some cases “there may be fact questions ‘about precisely what it was that the defendant undertook to do.’ That is, while ‘[t]he “precise nature and extent” of [an alleged section 324A] duty “is a question of law . . . ‘it depends on the nature and extent of the act undertaken, a question of fact.’ ” ’ [Citation.] Thus, if the record can support competing inferences [citation], or if the facts are not yet sufficiently developed [citation], ‘ “an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits” ’ [citation], and summary judgment is precluded. [Citations.]” (Artiglio, supra, 18 Cal.4th at p. 615.)
In this case, there is a question of fact about what precisely Los Gatos undertook to do. Los Gatos contends that, “[c]ontrary to Appellants’ interpretation of the Warranty Request, [Los Gatos] never undertook to investigate or to repair the roof. [Los Gatos]’ investigation was as to their scope of work during the original construction, i.e., framing and windows.” Appellants contend, on the other hand, that Los Gatos’s undertaking to investigate the water damage on the ceiling of appellants’ apartment encompassed checking the roof for leaks, and that Los Gatos’s failure to do so constituted a breach of the duty it had assumed.
Appellants rely on evidence of the communications between Owl’s Landing, Bogard Construction, and Los Gatos regarding investigating the water damage on the ceiling of both appellants’ apartment in 2001 and appellants’ neighbor’s apartment in 2002. It is reasonable to infer that water damage on the ceiling could indicate a roof leak. With respect to appellants’ apartment, Los Gatos informed Bogard that it had been out to the site three times and thought “it” was fixed. With respect to the neighbor’s apartment, several days after being notified of the problem by Bogard Construction in March 2002, Los Gatos informed Bogard that it had run a water test and determined that there was a leak in the roof. Los Gatos did not take responsibility for fixing the roof because it was not within the scope of their original work, but at least on that occasion in 2002 Los Gatos ran a water test to see if the roof was leaking. Viewing the evidence and the inferences in the light most favorable to appellants, this evidence is sufficient to raise an inference that Los Gatos undertook to investigate and diagnose the source of appellants’ leak in 2001, and that the investigation was not as narrowly limited in scope as Los Gatos contends. Thus, an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits in which the nature and extent of the undertaking are determined. (Artiglio, supra, 18 Cal.4th at p. 615.)
2. Other Requirements for Section 324A Liability
The trial court granted Los Gatos’s summary judgment motion on a second ground: Even assuming duty, no trial was necessary because appellants could not establish any of the alternative conditions required for tort liability under section 324A. Section 324A requires that, in addition to the elements of a negligence cause of action, a plaintiff establish “either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking.” (Paz, supra, 22 Cal.4th at p. 559, citing Artiglio, supra, 18 Cal.4th at pp. 613-614.) In its written ruling, the trial court stated that it found no evidence which would support an inference that Los Gatos’s action or inaction increased the risk of harm to appellants. The court further found that appellant Jones’s testimony that she was aware as early as March 2001 that Los Gatos had investigated the leak but had not found the cause negated a claim that appellants relied on any undertaking by Los Gatos.
With respect to these alternative conditions, it is not entirely clear to us what appellants argued in the trial court. The issue was not addressed in appellant’s brief. At oral argument before this court, appellants’ counsel argued that either subsection (a) or (b) is satisfied here, and conceded that there was no reliance by appellants.
At the hearing, appellants’ counsel noted that the three conditions are in the disjunctive, and argued, “One would be the undertaker’s failure to exercise reasonable care and increasing the risk of harm. The other would be undertaking a duty or performing a duty owed by a third party. Neither of those apply here. The landlord had the statutory duty under Civil Code 1941 and 1941.1 to maintain a habitable building, namely, one without a roof leak. By having someone go out to investigate, Los Gatos is [sic] has undertaken to perform a part of that duty owed by the landlord to [appellants]. So the issue of reliance that [appellants’ counsel] focuses upon is not even implicated.”
In any event, it appears that the trial court and the parties overlooked the fact that the third alternative condition, subsection (c), could be satisfied if Bogard Construction relied on the undertaking. There is no evidence that, after being advised by Los Gatos that Los Gatos had been on-site three times and thought that “it” was fixed, Bogard Construction did anything further to investigate or repair the leak prior to 2003. A trier of fact could reasonably conclude that Bogard Construction relied upon Los Gatos’s undertaking to get to the bottom of the water damage on the ceiling of appellants’ unit, and, because of that reliance, took no further action itself. (See Paz, supra, 22 Cal.4th at p. 565, dis. opn. of George, C.J.)
Under section 324A, the relevant reliance may be either by the injured person or by the entity for which the defendant undertakes to render the service, here Bogard Construction. The comment to section 324A regarding reliance states: “The actor is also subject to liability to a third person where the harm is suffered because of the reliance of the other for whom he undertakes to render the services, or of the third person himself, upon his undertaking. This is true whether or not the negligence of the actor has created any new risk or increased an existing one. Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk.” (Rest.2d Torts, § 324A, com. e, p. 144.)
We express no opinion regarding the viability of either subsection (a) or (b) under these circumstances.
IV. DISPOSITION
The judgment is reversed.
We concur: Kline, P.J., Lambden, J.