Opinion
F072998
09-06-2017
DEBBIE NODULSKI, Plaintiff and Appellant, v. ANTHONY VARGAS, Defendant and Respondent.
Michael S. Warda for Plaintiff and Appellant. Matheny Sears Linkert & Jaime, Matthew C. Jaime and Robert W. Sweetin for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 662672)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Michael S. Warda for Plaintiff and Appellant. Matheny Sears Linkert & Jaime, Matthew C. Jaime and Robert W. Sweetin for Defendant and Respondent.
-ooOoo-
A commercial landlord has a general duty to maintain common areas in a reasonably safe condition. (Rowland v. Christian (1968) 69 Cal.2d 108, 119.) Failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp (1989) 215 Cal.App.3d 1611, 1619.) An exception to this general rule is that a commercial landlord has no duty to protect tenants against unforeseeable criminal acts of third parties. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)
Here, the owner of a retail art gallery sued her landlord, who also owned and operated an adjacent retail business, for damage from a fire started in a stack of wooden pallets the landlord had placed in the parking area directly behind her art gallery. She alleged the landlord negligently stored the pallets and created an unsafe condition on the property that was a proximate cause of the damage to the contents of her gallery. The landlord moved for summary judgment, contending a commercial landlord owes no duty to prevent damage to a tenant's property caused by the criminal acts of a third party. The trial court agreed and granted summary judgment. The gallery owner appealed.
We conclude there is a triable issue of material fact about how the fire was started and whether criminal acts of a third party were involved. The evidence shows the fire was started by an unknown third party, but was inconclusive whether it was accidentally or intentionally set. As a result of this uncertainty, the landlord has not established this case is governed by the rule that a commercial landlord has no duty to protect tenants against unforeseeable criminal acts of third parties. Therefore, we conclude the landlord was subject to the general duty to maintain the common areas, which included the parking area, in a reasonably safe condition. As a result, the landlord has not defeated the negligence cause of action by showing an essential element—a duty of care—does not exist under the circumstances presented.
We, like the parties, have assumed the intentional setting of the fire by a third party would have been a criminal act.
The essential elements of a cause of action alleging an owner negligently used or maintained property are set forth in CACI No. 1000 (Premises Liability—Essential Factual Elements) and BAJI No. 8.00. A landlord's duty to take reasonable precautions to prevent injury due to any unsafe condition in an area under the landlord's control is addressed in CACI No. 1006 (Landlord's Duty). The existence of an unsafe condition is a question of fact addressed in CACI No. 1003 (Unsafe Conditions) and the related concept of an unreasonable risk of harm is defined in BAJI No. 8.02.
We therefore reverse the judgment and remand for further proceedings.
FACTS
In June 1985, plaintiff Debbie Nodulski began renting space in a commercial building located on South Center Street in Turlock, California for her retail art gallery and antique store. In August 2007, defendant Anthony Vargas purchased the building and land on South Center Street. He agreed to rent Nodulski the same space she previously occupied.
Vargas and Nodulski signed a lease dated June 11, 2007, which set forth the terms of their agreement. The lease described the premises being rented and also stated Nodulski "shall have the right to use in common with the other tenants of said property the restrooms and parking facilities." Section 16 of the lease was labeled "INSURANCE" and required Nodulski to procure and maintain property damage and public liability insurance. When the lease was signed, Nodulski had insurance, but subsequently allowed it to lapse.
Section 15 of the lease was labeled "NONLIABILITY OF LESSOR" and stated Vargas "shall not be liable ... for property damages from any cause, (including Lessee's property) related to Lessee's occupancy of the premises, including those arising out of damages or losses occurring on sidewalks or other areas adjacent to the leased premises, during the term of this lease or any extension thereof." Nodulski also agreed "to indemnify [Vargas] and save him harmless from all liability, loss, or other damage claims or obligation because of or arising out of such injuries or losses." Vargas's first motion for summary judgment raised this provision as a ground for granting the motion. However, the subsequent motion that is the subject of this appeal did not rely on this provision. Therefore, this nonliability provision is not discussed further in this opinion.
Since April 2003, Vargas has managed and operated a store named Pop's Bargain Mart from the property. Vargas purchases inventory for his store from a company in Stockton. The company places the inventory on wooden pallets, which are loaded into Vargas's truck with a forklift. Vargas then drives the inventory to his store, removes the pallets from the truck with a forklift, and places the pallets behind his store to be unloaded. After unloading the inventory from the pallets, Vargas places the pallets in a warehouse. If he has arranged for a third party to purchase the pallets, Vargas stacks them behind the property to be picked up by the purchaser.
On September 27, 2008, wooden pallets and sawn wood were stacked behind Nodulski's store in an area designated for parking. The parking spaces are located between the building and the alley that runs behind the building parallel to South Center Street. Nodulski contends the pile of material was within two to three feet of the building; the pallets were stacked as high as the roof line of the building and in excess of 20 feet; and the pallets and wood were not walled or screened off. Nodulski also contends Vargas could have stacked the wood behind his own business, but instead stacked it immediately behind her store. Vargas states the pallets were stacked in that location because a third party had purchased them and was supposed to pick them up.
On September 27, 2008, the stack of pallets and wood caught fire. Nodulski's discovery responses asserted (1) Vargas had stacked pallets behind the building off and on for at least six months before the fire and (2) the location was easily accessible to the public via the alley. Nodulski orally requested Vargas to remove the stacked debris, but cannot recall the specific dates of the requests. Nodulski's deposition testimony described her conversations with Vargas about pallets as follows: "Just in passing, saying I don't want them there, move them, and he would shrug or make a remark offhand and walk off."
The details of this warning about fire are not described in the pleadings or in Nodulski's separate statement. Consequently, it does not appear Nodulski explained to Vargas the particular fire hazard posed by stacking wooden pallets and creating a flue-like structure. In Custom Craft Tile, Inc. v. Engineered Lubricants Co. (Mo.App. 1983) 664 S.W.2d 556 (Custom Craft), the court stated that weathered wooden "pallets present a greater fire hazard than ordinary stacked lumber because their construction causes a 'flue-like' effect to vent the flames." (Id. at p. 559.)
The fire department's incident report stated the alarm was received at 9:53 p.m., department personnel arrived at the location three minutes later, and the fire was controlled by 10:43 p.m. The report stated the officer in command directed firefighters "to the rear of the structure for fire attack on a large stack of fully engulfed pallets." Those firefighters "used their master stream to knock down the exterior pallet fire." As to the building, the report stated the fire burned exclusively at Nodulski's address and only smoke was detected in the building's neighboring unit. It also stated "[t]he fiberglass skylights burned free and the building self vented through the roof."
The parties provide different descriptions of what is known about how the fire started. Vargas contends "the fire was intentionally set by someone in the area by an unknown source" and relies on deposition testimony of Fire Marshal Mark Gomes. In contrast, Nodulski asserts the fire investigators did not determine the fire was caused by arson. Nodulski states "Fire Marshal Gomez could not determine the source of the ignition [and] could not say whether it would be equally appropriate for him to opine that the cause of the fire was from an undetermined source rather than intentionally set."
As to the history of fires in the area, Nodulski does not dispute that (1) there were no other fires at the property during the period she operated her store; (2) she knows of only one fire occurring before September 27, 2008, within a mile of the property—a fire at the cannery across the street caused by a workman tearing up the floor; (3) she is not aware of any other fire occurring near the property that involved a third party setting fire to wood pallets; (4) the property's previous owner of 35 years was not aware of any fires intentionally set in the alley; and (5) Vargas was not aware of a third party intentionally setting fire to objects in the alley behind to property before September 27, 2008.
We note that the last two undisputed facts address only intentionally set fires and, therefore, do not address fires set unintentionally or fires that were not "set."
PROCEEDINGS
In March 2011, Nodulski filed a complaint against Vargas, alleging causes of action for breach of contract and negligence. In February 2015, Nodulski filed a second amended complaint, which is the operative pleading for purposes of this appeal. The second amended complaint asserted one cause of action labeled "Dangerous Condition." Nodulski alleged Vargas failed to exercise ordinary care in the management of the area immediately surrounding the premises by storing wood pallets, sawn wood and other flammable debris immediately adjacent to the premises in a parking area identified as a "common area" in the lease. Nodulski alleged it was foreseeable that the pallets and other debris could be ignited and burn and she warned Vargas of this danger. Nodulski alleged the debris was stored negligently by Vargas and the negligence was a proximate cause of plaintiff's loss of property and other damages. She alleged the fire and water damage totaled nearly $940,000.
Nodulski also alleged Vargas's conduct relating to the pallets and sawn wood violated section 304.1.1 of the California Fire Code and section 9-2-113 of the Turlock Municipal Code. The fire code provision prohibits the accumulation of wood and other combustible materials in an alley or parking lot. The municipal code provisions prohibits businesses from storing materials outdoors without a permit. Nodulski asserted these violations are presumed to constitute negligence and cited Evidence Code section 699 as support. Motion for Summary Judgment
In May 2015, Vargas filed a motion for summary judgment, contending he had no duty to prevent damage to Nodulski's personal property. Vargas argued (1) Nodulski had no evidence it was foreseeable that the pallets would be set on fire, (2) negligence could not be presumed because there was no viable underlying duty, and (3) neither of the code sections cited by Nodulski were designed to prevent the type of harm alleged by Nodulski.
Nodulski opposed the motion. She filed a separate statement that disputed many of the facts set forth in Vargas's separate statement and asserted additional facts were material to deciding the existence and scope of Vargas's duties. Order Granting Summary Judgment
In August 2015, the court filed a written ruling granting the motion for summary judgment. The ruling stated Vargas did not owe Nodulski a duty to protect her property from the acts of an unknown third party who started the fire either accidentally or intentionally. The court regarded Royal Neckwear Co. v. Century City, Inc. (1988) 205 Cal.App.3d 1146 (Royal Neckwear) as the controlling precedent in this matter. As to the alleged violations of the fire code and municipal code, the court stated an unlawful placement of the pallets would not convert the lack of a duty into a legal duty under the circumstances presented.
A signed order was filed by the trial court, judgment was entered in favor of Vargas and Nodulski appealed.
DISCUSSION
I. APPELLATE REVIEW OF A MOTION FOR SUMMARY JUDGMENT
Appellate courts independently review an order granting summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) In performing this independent review, appellate courts assume the same role as the trial court and assess the motion using a well-established three-step analysis to determine whether there is a triable issue as to any material fact. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607 (Brantley); Code Civ. Proc., § 437c, subd. (c).)
A. Framing the Issue
The first analytical step requires the court to identify the issues framed by the pleadings because the motion must demonstrate there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) In this case, the cause of action stated in the second amended complaint is based on negligence. Under California law, a negligence cause of action has three essential elements—"'a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.'" (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573 (Beacon Residential).) A negligence cause of action can be shown to lack merit if the defendant shows one or more of the elements cannot be established. (See Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850, 853-854 (Aguilar).)
B. Moving Party's Burden: Stating Fact and Presenting Evidence
The second analytical step requires the court to determine whether the moving party has carried its burden of establishing facts that justify judgment in its favor. To carry this burden the moving party must make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) Our evaluation of the moving party's prima facie showing involves a review of (1) the facts listed in the moving party's separate statement of undisputed facts and (2) the supporting evidence referenced in that separate statement.
Vargas's motion was directed at the duty of care element of Nodulski's negligence claim and contended she could not establish he had a duty to protect her personal property. The existence of a legal duty is a question of law and, as such, is particularly amenable to resolution by summary judgment. (Beacon Residential, supra, 59 Cal.4th at p. 573; see Gregory v. Cott (2014) 59 Cal.4th 996, 1007, fn. 7)
C. Opposing Party's Burden: Triable Issues of Material Fact
If the moving party has carried its burden, the court reaches the third analytical step and decides whether the opposing party has demonstrated the existence of a triable issue of material fact. (Brantley, supra, 42 Cal.App.4th at p. 1602.) When deciding whether a triable issue of material fact exists, courts must consider the evidence in a light favorable to the nonmoving party, liberally construing that party's evidentiary submission while strictly scrutinizing the moving party's own showing and resolving any evidentiary doubts or ambiguities in the nonmoving party's favor. (Saelzler, supra, 25 Cal.4th at pp. 768-769.) Appellate courts do not consider evidence to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c).) II. NEGLIGENCE AND DUTY OF CARE
A. Contentions of the Parties
1. Vargas's Theory: No Duty
Vargas's argument for why he owed no duty of care to Nodulski is based on the rule that "the scope of a commercial landlord's duty of care ... includes the taking of 'reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.'" (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 [sexual assault of a tenant in underground parking structure was not sufficiently foreseeable to impose duty of care on landlord].) This rule was restated by the Supreme Court in Castaneda v. Olsher, supra. 41 Cal.4th 1205: "A landlord generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord's control against foreseeable criminal acts of third parties." (Id. at p. 1213.)
Vargas contends this rule applies in this case because (1) he was Nodulski's landlord and (2) the fire was caused by the criminal conduct of an unidentified third party. He contends application of the rule leads to the conclusion he owed no duty to Nodulski because the criminal conduct in this case was not reasonably foreseeable under the circumstances presented.
2. Nodulski's Theory: Unsafe Condition
Nodulski views this case as one involving an unsafe condition, subject to well-established principles of premises liability. Specifically, she argues Vargas's acts and omissions created a dangerous (i.e., unsafe) condition and Vargas breached a landowner's or landlord's general duty to maintain areas within their control in a reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).)
The duty to maintain one's real property is addressed by form jury instructions addressing premises liability. CACI No. 1001 (Basic Duty of Care) states, "A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition." The instruction also lists factors for the jury to consider in deciding whether a defendant used reasonable care. In addition, the existence of a duty is addressed in CACI No. 1006 (Landlord's Duty), which provides in part:
"After a tenant has taken possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the landlord's control if the landlord knows or reasonably should have known about it."
Nodulski's second amended complaint referred to the duty to maintain property in a reasonably safe condition and the duty to prevent injuries due to unsafe conditions by alleging (1) Vargas created a dangerous condition by storing wooden pallets and other flammable debris in the common area immediately adjacent to the premises she rented, (2) Vargas knew or should have known the materials were stored too close to her business, and (3) Vargas could have eliminated the presence of the dangerous condition before the materials ignited and damaged her business.
3. The Critical Issue
A comparison of the parties' theories about duty shows that they disagree about whether this case fits under the specific rule defining a landlord's liability for the criminal conduct of a third party or, alternatively, under the general rule defining a landowner's liability for failing to maintain his property and avoid creating unsafe conditions. Consequently, we consider whether Vargas has established the fire was caused by criminal acts of a third party. When compared to cases involving burglary, shootings or rape, this showing is more difficult because fires can be set accidentally.
B. How the Fire Started
1. Vargas's Separate Statement
The separate statement of undisputed material facts in support of a motion for summary judgment is the cornerstone that joins the wall of material facts to the wall of supporting evidence. (Cal. Rules of Court, rule 3.1350(c)(2), (d); see Code Civ. Proc., § 437c, subd. (b)(1) [supporting papers shall include a separate statement setting forth all material facts followed by a reference to the supporting evidence].) These walls, when properly built and joined, protect a moving party from liability by showing "the action has no merit." (Code Civ. Proc., § 437c, subd. (a)(1).)
Vargas relies on the specific rule protecting landlords from liability for the criminal acts of third parties that cannot be reasonably foreseen. His separate statement of undisputed material facts addressed the role of a third party in starting the fire by asserting:
"16. Fire Marshal Mark Gomez concluded the fire was intentionally set by someone in the area by an unknown source."
"17. To date, it is still Mr. Gomez's opinion that the fire was intentionally set by someone in the area by an unknown source."
Vargas supported these factual assertions by referring to the deposition testimony of the fire marshal. In effect, Vargas contended excerpts of the deposition testimony were sufficient to carry his "burden of production to make a prima facie showing" that a third party's criminal acts started the fire. (Aguilar, supra, 25 Cal.4th at p. 851.)
2. Nodulski's Opposition
Nodulski's separate statement opposing the motion for summary judgment explicitly disputed the facts set forth in paragraphs 16 and 17 of Vargas's separate statement. Nodulski's separate statement explained her basis for disputing Vargas's version of the facts by asserting:
"Fire Marshal Gomez could not determine the source of the ignition. Fire Marshal Gomez could not say whether it would be equally appropriate for him to opine that the cause of the fire was from an undetermined source rather than intentionally set."
Like Vargas, Nodulski relied on excerpts from the deposition testimony of the fire marshal for support, including the following exchange:
"Q. And so when you say intentionally set, does that rule out in your mind that somebody accidentally set it on fire?
"A. Possibility.
"Q. That is was accidentally set?
"A. Possibility."
During his testimony, the fire marshal was not able to identify the source of ignition. For example, he could not say whether it was or was not lit with a match or a burning newspaper.
In addition, Nodulski's separate statement in support of her opposition set forth a number of facts she contended were material to resolving the motion for summary judgment. Paragraphs 56, 58 and 59 of her separate statement asserted (1) the "Turlock Fire Department conducted an investigation and made no determination that the fire was caused by arson"; (2) "Fire Marshall Gomez could not determine the source of the ignition"; and (3) "Fire Marshal Gomez could not say whether it would be equally appropriate for him to opine that the cause of the fire was from an undetermined source rather than intentionally set without first reviewing the National Fire Protection Association guidelines." "Undisputed" was Vargas's response to each of these paragraphs.
3. Triable Issues of Material Facts Exist
The rules governing our review of a motion for summary judgment require us to consider the evidence in the light most favorable to Nodulski (the party opposing summary judgment), resolving evidentiary doubts and ambiguities in her favor. (Elks Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 605-606.) Applying this standard to the deposition testimony in the record, we conclude the source of ignition (i.e., the way the fire was started) has not been identified. We further conclude it cannot be determined whether the fire was started accidentally or intentionally by the actions of a third party. Uncertainty as to what started a fire is not uncommon. (E.g., Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 76 ["cause of the fire was unknown"] (Gicking); Custom Craft, supra, 664 S.W.2d at p. 558 [origin of pallet fire remained unknown]; Hesse v. Century Home Components, Inc. (1973) 267 Or. 53, 55-56, [fire "classified as of unknown origin"] (Hesse).)
Based on this evaluation of the evidence, we conclude there are disputed material facts that preclude Vargas from obtaining the protection from the specific rule that holds a commercial landlord has no duty to guard against the criminal acts of a third party that are not reasonably foreseeable under the particular circumstances. Consequently, we need not analyze the foreseeability of the purported criminal activity—the next component of that rule. (See Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1150-1151 ["our cases analyze third party criminal acts differently from ordinary negligence, and require us to apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties"].)
4. General Duty to Maintain
If the specific rule defining the duty of a landlord to guard against criminal acts of third parties does not apply, what is the applicable rule? All landowners and landlords have a general duty to maintain areas within their control in a reasonably safe condition. (Ann M., supra, 6 Cal.4th at p. 674; CACI No. 1001 [basic duty of care to keep property in a reasonably safe condition].) Vargas's motion does not directly challenge the applicability of this general rule. Instead, he indirectly attempts to show the rule did not impose a duty in the circumstances of this case because a more specific rule applied.
Nodulski has alleged that Vargas handled the pallets and sawn wood in a way that created a dangerous (i.e., unsafe) condition on the property. Therefore, the issues framed by her pleading include the application of the general duty to maintain the property. Consequently, for purposes of this summary judgment motion, we conclude that Vargas owed Nodulski a duty to maintain the common areas of the property, which include the parking spaces where he placed the stack of pallets and sawn wood, in a reasonably safe condition. Whether the stack constituted an unsafe condition presents a question of fact that is not addressed in the moving papers. (See Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1064 [whether a given set of facts and circumstances creates a dangerous condition usually is a question of fact]; CACI No. 1003 [unsafe conditions]; BAJI No. 8.02 [definition of unreasonable risk of harm].)
In summary, Vargas's moving papers have not demonstrated that the duty of care element of Nodulski's negligence claim cannot be established. Like all landlords, Vargas owed a general duty to maintain the property, and might have breached that duty. Therefore, the motion for summary judgment should have been denied.
C. Case Law Addressing Fires
To check the foregoing conclusions, we review some of the cases that discuss liability for damages from a fire to determine if our conclusions are compatible with those decisions. As stated earlier, cases involving fire sometimes can be distinguished from cases involving intentional crimes, such as burglary and rape. For example, Royal Neckwear, supra, 205 Cal.App.3d 1146, is distinguishable because (1) the burglaries clearly involved criminal conduct and could not have occurred by accident and (2) the case did not involve a landlord's duty with respect to unsafe conditions of the landlord's own creation.
In Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, the court recognized case authority "which imposes upon property owners an independent duty to prevent the accumulation of inflammable materials on their premises; and in case of violation of this duty they are liable for damages even if the fire was caused by a third person." (Id. at p. 817; see Annot., Liability of Property Owner for Damages from Spread of Accidental Fire Originating on His Property (1994) 17 A.L.R.5th 547 [collecting cases that consider whether an owner can be held liable for the spread of accidental fires which break out on his premises].)
In Gicking, supra, 170 Cal.App.3d 73, a tenant in a shopping center sued the owners of a contiguous flower shop that was separated by a partition wall and shared an unpartitioned attic. (Id. at p. 76.) "The cause of the fire was unknown." (Ibid.) The plaintiffs argued owners of the flower shop had failed to maintain the motor unit for their walk-in cooler, which could have caused the fire. (Ibid.) The flower shop owners argued the shopping center's old-fashioned electrical system probably started the fire. (Ibid.) The jury was given a general negligence instruction and rendered a defense verdict in favor of the flower shop owners. (Id. at p. 75.) The appellate court concluded the trial court did not err in failing to give a res ipsa loquitur instruction requested by the plaintiffs. (Ibid.) Thus, the case is an example of the liability of a neighboring business for fire damage being determined under the general duty of care.
Hesse, supra, 267 Or. 53, is a case where it was unknown how the fire on the defendant's property started. (Id. at pp. 55-56.) The plaintiffs, owners of adjacent property, sued the defendant to recover damages for property destroyed by fire. (Id. at p. 55.) They alleged the defendant owner negligently maintained its premises in a condition that contributed to the start of the fire. (Ibid.) The jury instructions included the sentence: "'Every person has the duty to maintain his premises in a reasonably safe condition to avoid the likelihood of spread of fire therefrom.'" (Id. at p. 56.) The appellate court determined this and other instructions were not completely clear, but adequately instructed on the law when taken as a whole. (Id. at p. 57.) As a result, the appellate court upheld the verdict in favor of the plaintiffs. Hesse is an example of a landowner being held liable for fire damage to the property of a neighboring landowner and shows the general duty to maintain is not limited to common areas under a landlord's control.
The foregoing cases are compatible with our conclusions in the present case. First, Vargas owed Nodulski a general duty to maintain the common areas of the property in a reasonably safe condition. Second, whether Vargas breached that duty and allowed an unsafe condition to exist involves questions of fact that cannot be resolved in this appeal.
D. Negligence Per Se
Vargas's motion for summary judgment addressed Nodulski's allegation that his actions were negligent because they violated provisions of the California Fire Code addressing combustible waste material and provisions of the Turlock Municipal Code addressing the outdoor storage of material. Vargas argued the provisions did not automatically create a duty of care and neither provision was designed to prevent the type of harm alleged by Nodulski. The trial court concluded the provisions could not create a duty of care where one did not exist.
Section 304 of the 2007 California Fire Code was labeled "Combustible Waste Material." Section 304.1 stated: "Combustible waste material creating a fire hazard shall not be allowed to accumulate in buildings or structures or upon premises." (Italics added.) Section 304.1.1 stated: "Accumulations of wastepaper, wood, hay, straw, weeds, litter or combustible or flammable waste or rubbish of any type shall not be permitted to remain on a roof or in any court, yard, vacant lot, alley, parking lot, [or] open space ...." (Italics added.) Section 315.3.2 stated: "Storage in the open shall not exceed 20 feet (6096 mm) in height." The record shows the same provisions were part of the 2013 California Fire Code, which was contained in division 1 of title 19 of the California Code of Regulations. --------
Our Supreme Court has stated Evidence Code section 699 "codifies the common law doctrine of negligence per se, pursuant to which statutes and regulations may be used to establish duties and standards of care in negligence actions." (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, italics added.) The court expressly rejected the idea that the doctrine was limited to establishing standards in negligence actions, stating: "Examined with care, however, it actually consists of two distinct, albeit occasionally overlapping, concepts. Statutes [and regulations] may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care." (Id. at p. 927, fn. 8, italics added.)
We have concluded Vargas was subject to a general duty to maintain the common areas of the property. Consequently, we do not reach the additional questions of whether the fire and municipal code provisions cited create separate duties of care. That issue remains open and shall be addressed in the trial court's further proceedings on remand.
As to Nodulski's request that this court "direct the Trial Court to find that the standard of care has been violated by [Vargas]," we conclude directions on this issue are not appropriate in the procedural posture of this case. The rules governing motions for summary judgment and summary adjudication usually require a court to determine an entire cause of action, not particular elements of the cause of action such as the failure to meet a standard of care. In particular, summary adjudication usually is appropriate "only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).) As to the exception to this general rule, it does not apply because Nodulski has not filed a motion for summary adjudication, much less shown the criteria in subdivision (t) of section 437c of the Code of Civil Procedure have been satisfied.
E. Royal Neckwear Case
In Royal Neckwear, a tenant that operated a men's clothing and accessory store sued the landlord of the shopping mall for breach of contract and negligence after the store was burglarized twice. (Royal Neckwear, supra, 205 Cal.App.3d at p. 1150.) The tenant alleged the landlord failed to provide adequate security services. (Ibid.) During the trial, the court rejected the tenant's jury instruction that stated a commercial landlord has a duty to protect its tenants from reasonably foreseeable criminal conduct. (Ibid.) After the matter was submitted, the jury found the landlord had not acted negligently in providing security services. (Ibid.) The tenant appealed, arguing its proposed instruction should have been given. The Second District rejected the argument and affirmed the judgment. (Ibid.)
In Royal Neckwear, the Second District stated the question before it was "whether a commercial landlord owes a duty to its tenant to safeguard that tenant's property from reasonably foreseeable criminal activity by third parties." (Royal Neckwear, supra, 205 Cal.App.3d at p. 1151.) The court stated no California case had concluded such a duty exists and distinguished the cases that "speak to the duty of a landlord to safeguard its tenant's safety." (Ibid.) Thus, the court drew a distinction between safeguarding property and safeguarding people. The court concluded a duty to protect against the loss of a tenant's property did not exist, stating:
"[I]t is the tenant that is in the best position to take steps to protect the safety of its own property; there is no moral blame to be ascribed to a failure to prevent another's property from being stolen; it would place an onerous financial burden on a landlord—which eventually would be passed on to all of its tenants—to hold it responsible for the loss of its tenants' property; and a tenant can easily obtain insurance to cover any such loss." (Id. at p. 1152.)
The court's rationale about a duty to safeguard property should be placed in context. The jury was instructed on negligence with respect to the landlord's providing security services. The jury considered this theory of negligence and found the landlord was not negligent in providing security services. The jury's finding was supported by evidence showing that, in response to three burglaries that occurred before the tenant's store was hit, the landlord hired a second security guard to patrol the mall area, instructed the security guards in the office building area to extend their beat to the outer perimeters of the mall, placed an officer with binoculars on the roof of the mall, and meet with police regarding a program to deal with burglaries in the area. (Royal Neckwear, supra, 205 Cal.App.3d at p. 1150.)
Royal Neckwear also is distinguishable because the burglaries clearly involved criminal activity. By comparison, it is uncertain whether the fire that damaged Nodulski's property resulted from criminal acts and Nodulski has alleged Vargas created an unsafe condition on the property by his negligent placement of the stack of pallets.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order granting the motion for summary judgment and to enter a new order denying the motion.
Nodulski shall recover her costs on appeal.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
MEEHAN, J.