Opinion
C082209
10-26-2017
PK II PINECREEK, LP et al., Cross-Complainants and Appellants, v. SINH DO, Cross-Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CUI4080754)
This case arose out of a fall John Sanders suffered one day in February 2013 at the Pine Creek Shopping Center in Grass Valley (hereafter, the shopping center) as he descended a stairway with a bag of food from the Wonderful III Chinese Restaurant. Sanders sued the restaurant (operated by Sinh Do, also known as Wilson Do) and two entities associated with the shopping center, PK II Pinecreek, L.P. (Pinecreek) and Kimco Realty Corporation (Kimco). In turn, the Pinecreek defendants filed a cross-complaint against Do for declaratory relief, express indemnity, contribution, equitable indemnity, and apportionment.
When appropriate, we will refer to Pinecreek and Kimco jointly as the Pinecreek defendants.
Do moved for summary judgment/summary adjudication on Sanders's complaint and Pinecreek's cross-complaint. The trial court granted both motions, and the Pinecreek defendants appealed both from the judgment in favor of Do on Sanders's complaint and the judgment in favor of Do on their cross-complaint.
On appeal, we conclude: (1) no triable issue was shown as to Sanders's complaint against Do, so there was no error in the grant of summary judgment on that complaint, but (2) Do failed to carry his initial burden of showing that all of the Pinecreek defendants' claims in their cross-complaint were without merit, so there was error in the grant of summary judgment on that cross-complaint. For that reason, we will affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
On the date of Sanders's fall, Pinecreek was one of the owners of the shopping center. The Wonderful III Chinese Restaurant occupied a space on the second floor of a small building on the grounds of the shopping center separate from the main shopping center. The upstairs portion of the building contained two separate spaces, only one of which was occupied by the restaurant; the second space was unoccupied at the time of Sanders's fall. The lease for the space the restaurant occupied (space 716-D) was between Pinecreek and another limited partnership as the landlord and Do as the tenant.
The lease contained the following provisions regarding the "common areas" of the shopping center:
"17.1. Availability. The term 'common areas' means the portions of the Shopping Center which have at the time in question been designated and improved for common use, by or for the benefit of more than one tenant or concessionaire of the Shopping Center, including, without limitation, . . . service corridors and stairways providing access from store premises; . . . exterior walks, arcades, stairways, and/or ramps; interior corridors, stairs, or arcades; . . . but excluding any portion of the Shopping Center so included within the common areas when designated by Landlord for noncommon use . . . . Landlord agrees to maintain and operate, or cause to be maintained and operated (except as hereinafter provided with reference to cost of maintenance), said common areas at all times following completion thereof, for the benefit and use of the customers and patrons of Tenant, and of other tenants, owners and occupants of the land constituting the Shopping Center of which the Premises are a part.
"17.2. Landlord's Management and Control. All common areas shall be subject to the exclusive control and management of the Landlord or such other persons or nominees as Landlord may have delegated or assigned to exercise such management or control, in whole or in part, in Landlord's place and stead. . . .
"[¶] . . . [¶]
"D. Landlord shall at all times during the terms of this Lease have the sole and exclusive control of the common areas . . . .
"[¶] . . . [¶]
"17.4. Payment of Common Area Expenses. Landlord shall keep or cause to be kept said common area in a neat, clean and orderly condition . . . ."
The lease also contained the following indemnity provision:
"13.1. Indemnity. Tenant shall indemnify and hold Landlord harmless from and against any and all claims of liability for any injury or damage to any person or property arising from Tenant's use of the Premises, or from the conduct of Tenant's business, or from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises or elsewhere in the Shopping Center. Tenant shall further indemnify and hold Landlord harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under this Lease, or arising from any negligence or intentional acts of Tenant or Tenant's agents, contractors, employees, concessionaires, subtenants, licensees, customers or business invitees and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. In no event shall Tenant be liable for damage or injury occasioned by the negligence of Landlord and its designated agents, servants, or employees, unless covered by insurance Tenant is required to provide. In the event any such action or proceeding is brought against Landlord by reason of any such claim, Tenant upon notice from Landlord shall defend same at Tenant's expense by counsel reasonably satisfactory to Landlord. This obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expense and liabilities from the first notice that any claim or demand is to be made or may be made. Tenant, as a material part of the consideration of Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises arising from any cause and Tenant hereby waives all claims in respect thereof against Landlord, except in connection with damage or injury resulting from the gross negligence or willful misconduct of Landlord or its authorized agents."
When Do was operating the restaurant, he would spread salt on the stairs when they were slippery. When it snowed, he would make sure the area outside the restaurant, including the stairs, was not slippery, or he would have someone else do it, and he would "scrape everything to make it less icy and slippery." Sometimes he would bring hot water and pour it over the stairs to make sure there was no ice, so they were not slippery. Sometimes he would use a broom to sweep the stairs, but he did not notice any raised screws when he did so. He did not walk around looking at the redwood deck for any dangerous conditions, including screws.
According to Sanders, the incident out of which this action arose occurred at approximately 11:20 a.m. on February 20, 2013, when he had just left the restaurant carrying a bag of food. To descend the stairs to the parking lot, he stepped with his right foot from the deck to the first step, then with his left foot to the second step. As he lifted his right foot from the first step to descend to the third step, "it felt like something grabbed [him]." According to Sanders, his shoelace caught on a screw that was sticking up from the middle of the first step on the stairway, causing him to fall down the stairs (which appear to have consisted of six steps), resulting in serious injury.
On September 25, 2014, Sanders filed a form complaint for negligence and premises liability against Pinecreek and Do. On February 19, 2015, Sanders amended the complaint to substitute Kimco in place of Doe 1.
On October 9, 2015, Do filed a cross-complaint for indemnity against the Pinecreek defendants.
On October 30, 2015, Do filed a motion for summary judgment/summary adjudication on Sanders's complaint. The notice of motion did not state the grounds on which the motion was being made or identify the papers on which the motion was based; however, the memorandum of points and authorities filed in support of the motion did identify the grounds for the motion. Specifically, the memorandum asserted that Do was seeking summary judgment or summary adjudication on the grounds that: (1) he was not a tenant in possession of the restaurant when Sanders was injured and therefore had no duty to inspect the staircase for defects; and (2) he did not create or make less visible the protruding screw, and he had no duty to inspect the common area staircase for protruding screws. The hearing on Do's motion was set for January 22, 2016.
On appeal, Do has dropped his contention that he was not a tenant in possession of the restaurant when Sanders was injured.
On November 10, 2015, the Pinecreek defendants filed a cross-complaint for declaratory relief, express indemnity, contribution, equitable indemnity, and apportionment against Do. In the first cause of action, for declaratory relief, the Pinecreek defendants sought a declaration that Do was obligated to indemnify them for any sum they might be compelled to pay as a result of Sanders's suit and a declaration that Do was required to defend them in the suit. In the second cause of action, for express indemnity, Pinecreek sought express contractual indemnity from Do under the indemnity provision in the lease, including "contribution . . . for the defense and litigation costs" incurred by Pinecreek. In the remaining three causes of action, the Pinecreek defendants sought contribution, equitable indemnity, and apportionment from Do.
On December 10, 2015, Do filed a motion for summary judgment/summary adjudication on the cross-complaint filed by the Pinecreek defendants. As with the motion directed at Sanders's complaint, the notice of motion did not state the grounds on which the motion was being made or identify the documents on which the motion was based; however, the memorandum of points and authorities filed in support of the motion did identify the grounds for the motion. Specifically, the memorandum asserted that Do was seeking summary judgment or summary adjudication on the grounds that: (1) all of the causes of action except for the one for express indemnity would be barred by collateral estoppel if Do's motion for summary judgment on Sanders's complaint was granted; and (2) the cause of action for express indemnity was barred because the protruding screw "did not arise from any activity, work or thing done, permitted or suffered by [Do] in the common area."
The hearing on Do's motion for summary judgment on the cross-complaint filed by the Pinecreek defendants was set for February 26, 2016. In early January 2016, however, the parties apparently stipulated to continue the hearing on Do's motion for summary judgment on Sanders's complaint from January to February, so that Do's two motions would be heard on the same day.
On February 11, 2016, the Pinecreek defendants filed an opposition to Do's motion for summary judgment on Sanders's complaint. They asserted that Do's notice of motion was defective because it did not state the grounds for the motion. They also asserted there were triable issues of fact as to whether (1) the stairway where Sanders was injured was part of the "common area" of the shopping center; (2) Do exercised actual control over the stairway and thus owed a duty of care to Sanders; (3) Do's conduct prevented the Pinecreek defendants from having notice of the potential risk of harm from the protruding screw; and (4) Do created and/or had notice of the protruding screw.
On the same day, the Pinecreek defendants filed an opposition to Do's motion for summary judgment on the Pinecreek defendants' cross-complaint. They asserted that Do's notice of motion was defective because it did not state the grounds for the motion. They also asserted that the lease did not limit indemnity to losses arising out of an activity, work, or thing done, permitted, or suffered within the leased premises and that Do's motion must be denied because it addressed "only one small aspect of the indemnity provisions" in the lease.
Sanders also filed an opposition to Do's motion for summary judgment on his complaint. Sanders contended Do had a legal duty to inspect the common area where Sanders fell.
At the end of the hearing on February 26, the trial court took both motions under submission.
On April 14, 2016, the court issued its ruling granting both of Do's motions. The court concluded Do was entitled to judgment on Sanders's complaint because "[t]he undisputed area where [Sanders's] fall occurred is a common area," which under the terms of the lease was subject to the exclusive control and management of the landlord. With respect to the Pinecreek defendants' cross-complaint, the court concluded that under the indemnity provision in the lease, Do's duty of indemnity was limited to injury arising from his use of the "premises," which did not include the common area where Sanders was injured. According to the court, "[a]ny attempt to extend the indemnity provision to the common area would be contrary to a reasonable interpretation of the Lease."
On May 12, 2016, the court entered judgment in favor of Do on Sanders's complaint. The next day, the court entered judgment in favor of Do on the Pinecreek defendants' cross-complaint. Sanders agreed to waive his right to appeal the judgment on his complaint in exchange for Do's waiver of costs.
On May 31, 2016, Do dismissed his cross-complaint against the Pinecreek defendants without prejudice.
On June 7, 2016, the Pinecreek defendants timely appealed from the judgment on Sanders's complaint and the judgment on their cross-complaint.
DISCUSSION
I
Standing
The first issue for our resolution is whether the Pinecreek defendants have standing to appeal from the judgment in favor of Do on Sanders's complaint. We conclude they do.
As we have noted, the Pinecreek defendants filed an opposition to Do's summary judgment motion on Sanders's complaint, and although the trial court observed that this was "highly irregular" and questioned their "standing . . . in opposing a motion directed at the complaint," the court nonetheless read and considered their opposition to that motion.
On appeal, Do contends that notwithstanding the fact they opposed Do's summary judgment motion on Sanders's complaint in the trial court, the Pinecreek defendants do not have standing to challenge the judgment that resulted from the granting of that motion. He offers no authority or reasoning in support of that contention, however, other than to assert that the Pinecreek defendants "cannot force [Sanders] to litigate his claims against" Do. (Recall that Sanders agreed to waive his right to appeal the judgment on his complaint in exchange for Do's waiver of costs.)
The Pinecreek defendants, on the other hand, contend they have the right to appeal the judgment in favor of Do on Sanders's complaint because they are "aggrieved" by it. (See Code Civ. Proc., § 902 ["Any party aggrieved may appeal in the cases prescribed in this title"].) They are correct.
"One is considered 'aggrieved' whose rights or interests are injuriously affected by the judgment." (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) Here, in seeking summary adjudication on four of the five causes of action in the Pinecreek defendants' cross-complaint, Do specifically asserted that those four causes of action would be barred if Do's motion for summary judgment on Sanders's complaint was granted. Thus, Do himself specifically relied on his motion for summary judgment on Sanders's complaint as the basis for most of his motion for summary judgment/summary adjudication on the Pinecreek defendants' cross-complaint. Under these circumstances, Do cannot now be heard to argue that the Pinecreek defendants were not aggrieved by the granting of summary judgment to Do on Sanders's complaint.
In response to Do's assertion that the Pinecreek defendants "cannot force [Sanders] to litigate his claims against" Do, we note that even if the Pinecreek defendants were to prevail in their appeal from the judgment in favor of Do on Sanders's complaint, that would not mean Sanders would be "force[d] . . . to litigate his claims against" Do because the reversal of the judgment in favor of Do on Sanders's complaint would not require Sanders to pursue his claims against Do. As to whether Sanders might be barred from pursuing his claims against Do because he agreed to waive his right to appeal the judgment on those claims in exchange for a waiver of costs, we have no occasion to speak to that issue. The only conclusion we reach here is that the Pinecreek defendants have standing to appeal the judgment in favor of Do on Sanders's complaint because they are aggrieved by it.
II
Defective Notices
The Pinecreek defendants contend the trial court was "without power to adjudicate" Do's motions for summary judgment because the notices of motion did not state the grounds for the motions or identify the supporting documents on which the motions were based. We disagree.
It is true that a "notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based." (Code Civ. Proc., § 1010.) Contrary to the argument by the Pinecreek defendants, however, the failure to state the grounds of the motion in the notice of motion is not necessarily "a fatal defect" that "render[s] the Trial Court without power to adjudicate his motion." The notice of motion may be deemed sufficient as long as the grounds for the motion are made reasonably apparent in the papers accompanying the motion. (See, e.g., Hecq v. Conner (1928) 203 Cal. 504, 506 [notice of motion sufficient where affidavit attached to notice "set forth certain alleged facts in support of the motion and upon which the motion would be based"; Savage v. Smith (1915) 170 Cal. 472, 474 [notice of motion sufficient where basis for motion was apparent from accompanying affidavit].) Here, as we have noted, the grounds for the summary judgment motions were identified in the memoranda of points and authorities that accompanied and supported Do's motions. Moreover, while the notices of motion did not identify the papers on which the motions were based, the Pinecreek defendants do not deny that the motions were, in fact, based on the papers that accompanied the motions, including the memoranda of points and authorities, separate statements of undisputed facts, declarations, and deposition transcript excerpts. Under these circumstances, we find no merit in the argument that the trial court was without power to adjudicate the motions.
III
Summary Judgment On Sanders's Complaint
A
The Stairs Were A Common Area Of The Shopping Center
The Pinecreek defendants first contend the trial court erred in determining that the stairs on which Sanders was injured were part of the "common areas" of the shopping center, which, under the terms of the lease, were subject to the exclusive control and management of the landlord. We disagree.
To the extent the Pinecreek defendants contend the trial court erred in overruling their evidentiary objections to certain "unfounded opinion evidence" on the point, and in considering that evidence, we need not address those contentions because our review here is de novo and we place no weight on the evidence to which they objected; instead, we limit our analysis to the terms of the lease. --------
The Pinecreek defendants contend the stairs were not part of the "common areas" of the shopping center because "[t]he fully integrated Lease unambiguously defined 'common areas' as those benefitting more than one tenant at the time in question," and "at the time of [Sanders's] incident, [Do] was the only upstairs tenant who benefitted by the exterior stairs." While the latter assertion is undoubtedly true, the former is not.
Under the lease, "[t]he term 'common areas' means the portions of the Shopping Center which have at the time in question been designated and improved for common use, by or for the benefit of more than one tenant or concessionaire of the Shopping Center, including, without limitation, . . . service corridors and stairways providing access from store premises; . . . exterior walks, arcades, stairways, and/or ramps; interior corridors, stairs, or arcades; . . . but excluding any portion of the Shopping Center so included within the common areas when designated by Landlord for noncommon use."
In our view, like that of the trial court, the foregoing provision unambiguously encompasses the stairs on which Sanders was injured. First, exterior stairways are specifically included in the list of those portions of the shopping center that are defined as "commons areas," and by the terms of the lease such areas are considered part of the common areas unless they are "designated by Landlord for noncommon use." There was no evidence here that the exterior stairway in question was so designated. Second, even if we were to ignore the specific inclusion of exterior stairways in the list of "common areas" and consider only the initial definition of the term, we would still reach the same conclusion. Under the provision set forth above, the issue is not -- as the Pinecreek defendants would have it -- whether the portion of the shopping center in question "benefit[s] more than one tenant," but rather whether that portion of the shopping center has "been designated and improved for common use, by and for the benefit of more than one tenant." (Italics added.) The stairs at issue here led to and from a part of the shopping center that contained two separate spaces, only one of which was occupied by the restaurant. While the other space may have been vacant at the time of Sanders's fall, that has no bearing on the question of whether the stairway was "designated and improved for common use, by and for the benefit of more than one tenant." Because the upstairs level of the building in which the restaurant was located was built to house two tenants, the stairway that provided access to the upstairs level of the building was necessarily "designated and improved for common use, by and for the benefit of more than one tenant," even though Do may have been the only tenant actually occupying the upper level at the time of Sanders's fall.
For these reasons, we find no error in the trial court's determination that the stairs in question were part of the common areas of the shopping center, and thus, under the terms of the lease, were subject to the exclusive control and management of the landlord. As will be shown, however, this point is not dispositive of the question of whether Do owed a duty of care with respect to those stairs. That question turns on whether Do exercised actual "control" of the stairs, despite the fact that the lease gave exclusive control of the stairs to the landlord.
B
Do's "Control" Over The Stairs
The Pinecreek defendants contend there is a triable issue of fact as to Sanders's complaint against Do because of the impact of the actual control Do exercised over the stairs. In their view, Do exercised control over the stairs such that he owed a duty to Sanders to maintain the stairs in a reasonably safe condition, and there is a triable issue of fact as to whether he did so. According to them, "[m]aintenance coupled with knowledge of a potential hazard is all that is needed to submit . . . the issue to a jury."
For his part, Do contends he owed Sanders no duty regarding the condition of the stairs because he did not have control over the stairs.
For the reasons that follow, we conclude that under the evidence here, even viewed in the light most favorable to the Pinecreek defendants, Do's activities with relation to the stairs were not sufficient to constitute actual "control" of the stairs such that Do owed a duty of care to those who used the stairs to protect them from the danger of raised screws on the stairs.
In reaching this conclusion, we begin with Alcaraz v. Vece (1997) 14 Cal.4th 1149 (Alcaraz). In Alcaraz, the plaintiff "was injured when he stepped into a water meter box located in the lawn in front of the rental property of which he was a tenant. The cover of the meter box either was broken or missing. He sued his landlords, but the superior court granted summary judgment for defendants because the meter box was not located on defendants' property, but within an adjacent strip of land owned by the city, running between the sidewalk and defendants' property line." (Alcaraz, at p. 1152.) On review, our Supreme Court "affirm[ed] the Court of Appeal's ruling that the superior court erred in granting summary judgment for defendants, because [the Supreme Court] conclude[d] that a triable issue of fact exist[ed] as to whether defendants exercised control over the narrow strip of land owned by the city, that was located adjacent to, and was not noticeably separate from, defendants' property, and thus had a duty to warn plaintiff of, or protect him from, the hazard in question." (Id. at pp. 1152-1153.)
The Supreme Court began by explaining that "[t]he circumstance that defendants did not own or exercise control over the meter box itself d[id] not entitle them to judgment as a matter of law." (Alcaraz, supra, 14 Cal.4th at pp. 1155-1156.) "[I]f the condition of the meter box created a dangerous condition on land that was in defendants' possession or control, defendants owed a duty to take reasonable measures to protect persons on the land from that danger, whether or not defendants owned, or exercised control over, the meter box itself." (Id. at p. 1156.)
The meter box in Alcaraz is analogous to the screws in the stairs here. Even if Do did not own or exercise control over those screws, he still could owe a duty to take reasonable measures to protect persons using those stairs from the danger posed by the raised screws if he was in possession or control of the stairs. Furthermore, it does not matter that the lease gave exclusive control of the stairs to the landlord. As the court noted in Alcaraz, " '[A]ctual exercise of control by [a] tenant [over a portion of leased property], even though the lease itself confers no right of such control upon him, can subject him to liability.' " (Alcaraz, supra, 14 Cal.4th at p. 1159, quoting Both v. Harband (1958) 164 Cal.App.2d 743, 748.)
In explaining what constitutes the "control" of property one does not own for purposes of establishing a duty of care, the court in Alcaraz discussed two federal court decisions: Orthmann v. Apple River Campground, Inc. (7th Cir. 1985) 757 F.2d 909 (Orthmann) and Husovsky v. United States (D.C. Cir. 1978) 590 F.2d 944 (Husovsky). (Alcaraz, supra, 14 Cal.4th at pp. 1159-1161.) In Orthmann, while floating down a river on a rented inner tube, the plaintiff stopped at a place on the riverbank where there was a tree that was frequently used for diving. (Alcaraz, at pp. 1159-1160.) After striking his head on a submerged rock upon diving into the river, the plaintiff sued the association that had rented him the inner tube and owned most of the land bordering that stretch of the river, except the land from which the plaintiff dove, which was owned by the Montbriand family. (Id. at p. 1160.)
In permitting the plaintiff to proceed with his action, the federal appellate court relied on evidence that after the accident the defendants, acting without the permission of the landowner, entered the land belonging to the Montbriands and cut down the tree. (Alcaraz, supra, 14 Cal.4th at p. 1160.) Defendants had also been seen cleaning and maintaining the banks of the river on the Montbriands' land. (Ibid.) As our Supreme Court explained, "[i]t is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did -- the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least . . . possession." (Ibid.) Quoting the federal court, our Supreme Court further noted that " 'if the landowner treats the neighbor's property as an integral part of his, the lack of formal title is immaterial. Whoever controls the land is responsible for its safety.' " (Ibid., quoting Orthmann, supra, 757 F.2d at pp. 913-914.)
In Husovsky, the plaintiff was injured when a tree fell on his automobile while driving on a public street that ran through a federally owned and maintained park. (Alcaraz, supra, 14 Cal.4th at p. 1160.) The tree stood on a tract of land owned by the Government of India that was subject to an agreement with the United States from 1945 (when the park was established) under which the Government of India had promised to maintain the natural, park-like character of the tract. (Ibid.) As a result, the tract of land on which the tree stood was indistinguishable from the contiguous federal parkland. (Id. at pp. 1160-1161.) Also, since 1945 the tract had been marked with wooden stakes and granite boundary monuments bearing United States insignia, and the wooden stakes had been maintained by employees of the National Park Service. (Id. at p. 1161.) Based on these circumstances, the federal appellate court held that " 'having assumed such notorious and open public display of control of the tract, the United States had a duty to exercise reasonable care in its supervision thereof.' " (Ibid., quoting Husovsky, supra, 590 F.2d at p. 953.)
Applying the principles from the foregoing cases, our Supreme Court explained as follows with reference to the facts in Alcaraz: "Evidence was introduced establishing that defendants maintained the lawn that covered the approximately two-foot-wide portion of the strip of land owned by the city surrounding the meter box and adjoining their property and that, following plaintiff's injury, defendants constructed a fence that enclosed the entire lawn, including the portion located on the narrow strip of land owned by the city. From this evidence, a reasonable trier of fact could infer that defendants exercised control over this approximately two-foot-wide portion of the strip of land owned by the city and treated the land surrounding the meter box, which bordered defendants' property, as an extension of their front lawn." (Alcaraz, supra, 14 Cal.4th at pp. 1161-1162, fns. omitted.) The court later characterized the "evidence regarding defendants' maintenance of the lawn and their construction of the fence" as "highly relevant regarding whether defendants exercised control over the strip of land owned by the city." (Id. at p. 1166.) According to the court, "[e]vidence that defendants maintained the lawn on the strip of land owned by the city certainly has some 'tendency in reason to prove or disprove' whether defendants exercised control over that land. This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. But it cannot be doubted that such evidence is relevant on the issue of control." (Id. at p. 1167.) The court further stated that "[t]he circumstance that defendants constructed a fence surrounding the narrow, city-owned strip of land that bordered their property also is highly relevant. It is obvious that the act of enclosing property with a fence constitutes an exercise of control over that property." (Ibid.)
The court then concluded as follows: "Defendants did not own the narrow strip of land on which plaintiff was injured, but plaintiff has presented evidence suggesting that defendants treated a portion of this strip of land as if they did own it, maintaining a lawn that spanned the property line and that rendered part of the land owned by the city indistinguishable from that owned by defendants, and (subsequent to plaintiff's injury) demonstrated their possession of this land by constructing a fence enclosing the narrow strip containing the meter box. Standing alone, simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property so as to give rise to a duty to protect or warn persons entering the property of known dangers. But the evidence offered in the present case goes farther and is sufficient to raise a triable issue of fact as to whether defendants exercised control over the strip of land containing the meter box and thus owed a duty of care to protect or warn plaintiff of the allegedly dangerous condition of the property." (Alcaraz, supra, 14 Cal.4th at p. 1170.)
Under Alcaraz, then, control of property by a person who does not actually own the property can be shown by evidence that the person treated the property as if he owned it, which in Alcaraz consisted of the landlords: (a) maintaining a lawn that rendered the property they did not own indistinguishable from the property they did own; and (b) enclosing the property they did not own with a fence, thereby demonstrating possession of the property. Notably, however, the Supreme Court made a point of observing that "simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property." (Alcaraz, supra, 14 Cal.4th at p. 1170.)
In Contreras v. Anderson (1998) 59 Cal.App.4th 188, the appellate court followed up on the point made by the Supreme Court in Alcaraz. In Contreras, the plaintiff was injured in a fall on a brick walkway contained in a city-owned planting strip in front of the defendants' property. (Id. at p. 191.) On appeal from a summary judgment against her, the plaintiff argued (among other things) that the evidence was sufficient to raise a triable issue of fact as to whether the defendants controlled the public planting strip and thus owed her a duty of care under Alcaraz. (Contreras, at p. 191.) The appellate court disagreed, holding "as a matter of law that the [defendants] did not owe a duty to warn or prevent harm to [the plaintiff] under the rule of Alcaraz." (Contreras, at p. 201.)
In reaching that conclusion, the appellate court first explained that "it is clear from Alcaraz that simple maintenance of an adjoining strip of land owned by another does not constitute an exercise of control over that property." (Contreras v. Anderson, supra, 59 Cal.App.4th at p. 198.) The Contreras court then contrasted the facts before it with the facts in Husovsky and Orthmann, noting that "[i]n the present case, there is no such 'dramatic assertion of a right normally associated with ownership or . . . possession' of the land on which Contreras was allegedly injured." (Contreras, at p. 200.) Explaining that the case before it involved only "regular trimming of the tree [in the city-owned planting strip] and sweeping of fallen leaves on the brick path," as well as "some 'gardening' in the planting strip," the Contreras court concluded that "this evidence by itself suggests nothing more than 'neighborly maintenance' of the city-owned planting strip," which, "[s]tanding alone, . . . cannot support a finding of control over that property." (Ibid.) The court then explained as follows: "What Alcaraz, Husovsky, and Orthmann share, and what the instant case lacks, is evidence that the defendant took affirmative action to preclude or limit the adjoining landowner's control of, or ability to control, its own property such that it is fair and reasonable to hold the defendant (whether solely or jointly with the neighbor) responsible for injuries that may occur on the adjacent property. The conduct of the defendant landowners in each of those cases was also a 'notorious and open public display of control' over adjacent property, such that members of the general public might reasonably rely on the apparent owner to warn or protect them from known hazards thereon." (Ibid.)
Applying the rule of Alcaraz as interpreted in Contreras, and with a fair regard for how the facts in this case compare to those in Alcaraz, Husovsky, Orthmann, and Contreras, we conclude that under the evidence here, even viewed in the light most favorable to the Pinecreek defendants, Do's activities with relation to the stairs were not sufficient to constitute "control" of the stairs such that Do owed a duty of care to those who used the stairs to protect them from the danger of raised screws on the stairs. In arguing that Do did exercise control of the stairs, the Pinecreek defendants assert that the evidence showed that Do "and employees acting at his direction regularly maintained and inspected the exterior stairs. That maintenance included sweeping, mopping, salting, and pouring hot water to eliminate ice, and twice addressing a screw protruding from a pre-existing hole in the step. Inspections of the exterior stairs included looking for icy or slippery conditions, and -- after almost stepping on what he perceived to be a dangerously protruding screw a mere two or three weeks before the subject incident -- looking for protruding screws in the days leading to the subject incident." Even if Do did all of these things, however, it did not amount to control of the stairs under the rule from Alcaraz, as interpreted in Contreras, as there was no "affirmative action to preclude or limit the [landlord's] control of, or ability to control, its own property such that it is fair and reasonable to hold [Do] . . . responsible for injuries" that occurred because of the condition of the stairs. Do's actions were more akin to "neighborly maintenance" of the stairs, from which no duty of care arises.
In addition to the actions described in the previous paragraph, the Pinecreek defendants also assert that Do "(or another Restaurant employee) tried to hammer the very screw believed to have caused [Sanders's] injury." The evidence they offered in their papers, however, does not support the conclusion that this action was taken by Do. Instead, all they asserted was that "[w]ithin minutes after the subject incident, [Sanders] and [an] eyewitness . . . saw an Asian-looking man return from the restaurant with a hammer to pound the screw back into the steps, consistent with what David Do believes his father would have done in response to seeing an elevated step screw." This was not enough to support a finding that Do hammered the screw back in -- even if the act of hammering the screw back in could be considered "affirmative action to preclude or limit the [landlord's] control of, or ability to control, its own property."
For the foregoing reasons, we reject the argument of the Pinecreek defendants that there was a triable issue as to whether Do owed a duty of care because he exercised control of the stairs. Accordingly, the trial court did not err in determining that Do was entitled to judgment on Sanders's complaint against him.
IV
Summary Judgment/Summary Adjudication On
The Pinecreek Defendants' Cross-Complaint
The conclusion that the trial court did not err in granting summary judgment to Do on Sanders's complaint against him compels the conclusion that the trial court also did not err in determining that Do was entitled to summary adjudication of the three causes of action in the Pinecreek defendants' cross-complaint against Do that depended on Do being liable for Sanders's injury: namely, the last three causes of action for contribution, equitable indemnity, and apportionment. Nevertheless, the question of whether Do was entitled to summary adjudication of the remaining two causes of action in that cross-complaint -- the cause of action for declaratory relief and the cause of action for express indemnity -- requires further analysis.
Before we engage in that analysis, however, we pause to emphasize certain rules that govern our review here. Specifically, on our de novo review of summary judgment appeals, we consider whether the opposition raised triable issues of fact only if we first conclude that the movant met its initial burden of establishing entitlement to summary judgment, that is, only if the movant showed the opponent could not prevail on any theory raised by the pleadings. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) Thus, the first question here with respect to the first and second causes of action in the Pinecreek defendants' cross-complaint against Do is whether Do met his burden of establishing that he was entitled to summary adjudication on those causes of action because he showed that the Pinecreek defendants could not prevail on any theory raised by those causes of action. As we will explain, the answer to that question is "no."
A
Declaratory Relief
In the first cause of action in the Pinecreek defendants' cross-complaint, which was for declaratory relief, the Pinecreek defendants set out at length the indemnity provision from the lease, tendered the defense of the litigation to Do (again), then alleged there was an actual controversy between them and Do on the following subjects: (1) as between them and Do, who was liable for the injuries and damages claimed by Sanders; (2) whether Do was obligated to indemnify and/or pay contribution to them for any sums they might be compelled to pay to Sanders; and (3) whether Do owed them a defense in the case. Thus, as we have noted, the Pinecreek defendants sought a declaration that Do was obligated to indemnify them for any sum they might be compelled to pay as a result of Sanders's suit and a declaration that Do was required to defend them in the suit.
In moving for summary adjudication on the first cause of action in the Pinecreek defendants' cross-complaint, Do relied entirely on the doctrine of collateral estoppel. That is, he asserted that if he prevailed on his summary judgment motion against Sanders, he would be entitled to judgment on the first cause of action in the Pinecreek defendants' cross-complaint, as well as on the third, fourth, and fifth causes of action therein -- all of which he characterized "non-express indemnity causes of action." But that was plainly not the case for two reasons. First, there was nothing about the Pinecreek defendants' cause of action for declaratory relief that limited its application to their "non-express" rights of indemnity. That is to say, in seeking a declaration that the Pinecreek defendants had a right to indemnity from Do, the allegations of this cause of action could just as easily be understood to embrace their rights of express indemnity under the terms of the lease as their other, "non-express" rights of indemnity. Because a determination that Do was not liable for Sanders's injuries was not necessarily dispositive of whether the Pinecreek defendants were entitled to indemnity from Do under the indemnity provision in the lease, the fact that Do obtained summary judgment against Sanders was not sufficient to show that the Pinecreek defendants could not prevail on their cause of action for declaratory relief as to their rights to indemnity. Second, the Pinecreek defendants' cause of action for declaratory relief embraced Do's duty to defend them as well as his duty to indemnify them, and a determination that Do was not liable for Sanders's injuries was not necessarily dispositive of whether Do had a duty to indemnify Pinecreek under the terms of the indemnity provision in the lease.
From the foregoing, it follows that Do never carried his initial burden of showing that the Pinecreek defendants could not prevail on their cause of action for declaratory relief. For that reason, the trial court erred in granting summary judgment to Do on the cross-complaint, and Do's alternative motion for summary adjudication of the first cause of action in that cross-complaint should have been denied.
B
Express Indemnity
In their second cause of action, which was for express indemnity, the Pinecreek defendants alleged that Do had a duty under the indemnity provision in the lease to "defend, indemnify, and pay contribution" to Pinecreek. In moving for summary adjudication on that cause of action, however, Do asserted only that he had no obligation under the indemnity provision in the lease because the incident did not occur within the premises he leased and because he did not create, permit, or suffer the dangerous condition on the stairs that caused Sanders to fall. Indeed, Do specifically asserted that "[u]nder the subject indemnity provision, the tenant can only owe indemnity to the landlord for a dangerous condition in the common area that resulted from an 'activity, work, or thing' that was 'done, or permitted or suffered' by the Tenant in the common area."
As the Pinecreek defendants point out, however, the indemnity provision in the lease is far broader than the language on which Do focused in his motion. We have set out the indemnity provision at length above, and we will not repeat it here. Suffice it to say that Do's motion addressed only a small portion of the indemnity provision -- the part that required Do to indemnify the landlord for "all claims of liability for any injury or damage to any person or property arising . . . from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises or elsewhere in the Shopping Center." The motion did not address any of the other possible bases for indemnity in the indemnity provision of the lease, and it did not address whether Do had a duty to defend Pinecreek under that provision, irrespective of whether Do had a duty to indemnify Pinecreek.
Because Do's motion did not address all possible bases for indemnity arising from the indemnity provision and did not address his duty to defend at all, Do failed to carry his initial burden of showing that the Pinecreek defendants could not prevail on their cause of action for express indemnity. For that reason, the trial court again erred in granting summary judgment to Do on the cross-complaint, and Do's alternative motion for summary adjudication of the second cause of action in that cross-complaint should have been denied.
V
Separate Judgments
One issue remains. The Pinecreek defendants contend the trial court erred by entering separate judgments in favor of Do on Sanders's complaint and on their cross-complaint. They do not, however, show any prejudice from the separate judgments. They suggest there is a risk of "inconsistent verdicts in the event the judgment on only the cross-complaint is reversed" because "[o]n remand, [they] would assert their right to present evidence of [Do's] legal fault, while [Do] would [seek to] block[] such evidence based on the fact he prevailed against [Sanders]." What this argument fails to recognize, however, is that even without a separate judgment being entered in favor of Do on Sanders's complaint, the Pinecreek defendants will be barred from presenting evidence that Do was legally responsible for Sanders's injury because that issue has been conclusively determined against them in the summary judgment motion on Sanders's complaint against Do that we have concluded here was properly granted. Accordingly, even if the trial court erred in entering separate judgments, the error was harmless. (See In re J.S. (2011) 196 Cal.App.4th 1069, 1078 [under "the rule of harmless error," "[b]efore any judgment can be reversed for ordinary error, it must appear that the error complained of 'has resulted in a miscarriage of justice' "].)
DISPOSITION
The judgment in favor of Do on Sanders's complaint is affirmed. The judgment in favor of Do on the Pinecreek defendants' cross-complaint is reversed, and the case is remanded to the trial court with instructions to: (1) vacate the order granting summary judgment to Do on the Pinecreek defendants' cross-complaint; and (2) enter a new order denying Do's motion for summary adjudication on the first and second causes of action in the Pinecreek defendants' cross-complaint but granting that motion on the third, fourth, and fifth causes of action. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.