McLaughlin v. Aero Properties CA4/1

Filed 11/4/26 McLaughlin v. Aero Properties CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA BLAINE MCLAUGHLIN, D085645 Plaintiff and Appellant, (Super. Ct. No. 37-2021- 00029316-CU-PO-CTL) v. AERO PROPERTIES et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Lew-Stevens and Steven B. Stevens; Nguyen Lawyers and Minh T. Nguyen; Bates Law and Paul W. Bates for Plaintiff and Appellant. Horvitz & Levy, David M. Axelrad and Jeffrey Vides; Murchison & Cumming and Robert M. Scherk for Defendants and Respondents. Blaine McLaughlin was injured at his place of employment when he stepped into a hole in the floor created in connection with an ongoing bathroom renovation project. He filed suit against the contractor—Rogaciano Sanchez; the landlord—Aero Properties; the landlord’s General Partner— William Gibbs; and the property managers—Strategic Property Management Associates, Inc. and Victor Liong. The trial court granted Aero Properties and Gibbs (collectively, Respondents) summary judgment against McLaughlin on the grounds that Respondents did not owe McLaughlin a duty of care as a landlord with no actual knowledge of the allegedly hazardous condition (i.e., the hole). McLaughlin asks us to reverse the summary judgment and asserts that a triable issue of material fact remains as to whether Respondents retained control over the premises for purposes of the remodel. We conclude there is no triable issue of material fact and affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. McLaughlin’s Complaint In his complaint, filed July 21, 2021, McLaughlin asserted one cause of action for general negligence against Sanchez, and one for negligence based on premises liability against Respondents and the property manager defendants. McLaughlin alleged that, at all relevant times, he was an employee of VB MDS Auto Services, doing business as Midas Muffler (Midas). In July 2019, Sanchez contracted with Respondents to do certain repairs and improvements at the Midas property. Midas remained open during the remodel, repairs and improvements.1 On or about July 20, 2019, during the remodel and repairs, Sanchez “cut a large square hole in the floor in front of the employee restroom sink.” McLaughlin entered the restroom to wash his hands on July 22, 2019, “and his leg dropped into the hole . . . causing [him] to sustain serious injuries.” 1 According to the summary judgment pleadings, Aero owns the Midas property and leased it to Midas through a commercial auto center lease agreement executed in January 2019. Aero is a limited partnership. Gibbs is the general partner and the managing partner. 2  As to Respondents, McLaughlin alleged that they “were negligent in that, among other things, they failed to exercise due care in the inspection, ownership, construction, operation and maintenance, of [the Midas property] to ensure that occupants were not subject to any unreasonable risk of harm.” In addition, McLaughlin alleged that “each of them, knew, or in the exercise of reasonable diligence, should have known, of such dangerous conditions, and knew, or in the exercise of reasonable care, should have known that such conditions created an unreasonable risk of harm in sufficient time prior to the injury to have corrected it.” Despite this knowledge, Respondents “negligently failed to take steps to either make the condition safe or warn [McLaughlin] of the dangerous condition.” B. Respondents’ Motion for Summary Judgment In June 2024, Respondents moved for summary judgment. They asserted that Aero was an “out-of-possession landlord who had leased the entire premises” to Midas and, therefore, owed no duty of care to McLaughlin. Respondents asserted further that Sanchez was “acting at the direction of VB MDS’s owner, Victor Bagdasar” when he created the hole, because Bagdasar had asked Sanchez “to create a second floor drain in the employee restroom.” Although Respondents had contracted with Sanchez to complete certain restroom upgrades, the second drain was outside the scope of the agreed-upon repairs and was not approved by Respondents. Accordingly, they asserted that they did not have notice or actual knowledge of the drain (or the associated hole) and had no ability to cure any resulting dangerous condition. Respondents pointed to several clauses in the lease agreement. First, they noted that Midas was responsible for maintaining the premises and for all improvements, with the exception of structural elements like the roof and foundation. In the instance of a “non-monetary breach,” Midas would have 3 10 days to cure before Respondents could reenter the property. Second, they acknowledged that an addendum to the lease addressed the bathroom remodel and stated that “Aero would, at its sole cost and expense, upgrade the existing restrooms . . . to comply with the requirements of the Americans with Disabilities Act” (ADA), and that Midas agreed to provide reasonable access for that purpose. Respondents also agreed to provide “porta-potties” for use by Midas employees and customers “during any period the restroom area is out of service.” Respondents asserted that they contracted with Sanchez to complete the restroom repairs in accordance with the plans referenced in the addendum to the lease. Any changes to those plans required approval from Gibbs. Respondents alleged that “Sanchez went outside the scope of work approved by Gibbs by adding a second drain in the employee restroom at the request of Victor Bagdasar.”2 Gibbs submitted a declaration in support of the motion for summary judgment and provided copies of the lease, the addendum, the associated architectural plans, and the contract with Sanchez for the bathroom remodel. Respondents also provided excerpts from the depositions of Sanchez and McLaughlin. Sanchez testified as follows: “Q: And any changes you made, it got approved by Mr. Gibbs, right? [Objections.] A: There was no change in the process. None was made. Except the new drain. 2 Respondents also filed a cross-complaint against Sanchez, Bagdasar, and VB MDS. 4  Q: And you got Mr. Gibb’s approval of putting in the new drain before you did that, right? [Objections.] A: When [Bagdasar], the owner of Midas, asked me to please make him a new drain, I mentioned it to Mr. Gibbs. He told me, ‘No, don’t do it.’ Okay. I didn’t do it. [¶] The following week, [Bagdasar] continued to implore, ‘Please, I need another drain; make one for me.’ [¶] And since I knew how to do it, I did so as a favor to him since the completion of the work has been prolonged and delayed. I did so as a favor to him including that without charging for my time. That’s why I did that.” C. McLaughlin’s Opposition to the Motion for Summary Judgment McLaughlin opposed the motion for summary judgment. He asserted that Respondents had a nondelegable duty to maintain the property in a safe condition, and that they were vicariously liable for the negligence of Sanchez, the contractor that they hired. McLaughlin also argued that knowledge of the hole was imputed to Respondents for similar reasons, and that there was a triable issue of fact as to whether Gibbs approved installation of the second drain. McLaughlin alleged that Sanchez told Bagdasar that he would obtain approval from Gibbs for the second drain and then subsequently installed the drain without further discussion, raising at least an inference that Defendant Gibbs approved of the second drain. McLaughlin also alleged that Sanchez allowed Midas employees to use the restroom to wash their hands, in part because Gibbs informed him that the outdoor hand washing station that Sanchez had set up was inadequate. McLaughlin submitted deposition excerpts from Bagdasar, Sanchez, Gibbs, and himself as support for these allegations. 5  McLaughlin testified that he never saw any Midas employees using the outdoor hand washing station and that he was never told that he, or anyone else, needed to use that station and not the bathroom sink to wash their hands. Bagdasar testified that Sanchez had set up a temporary water line to the sink in the bathroom midway through the project, so that the mechanics could wash the grease off their hands. Gibbs was aware that the mechanics were using the sink for this purpose. Bagdasar asked Gibbs about the second drain in the bathroom and Gibbs said, “talk to [Sanchez].”3 Gibbs never said no to the request. When Bagdasar talked to Sanchez about the drain, Sanchez said that he would talk to Gibbs to get his approval. D. Respondents’ Additional Evidence Respondents submitted additional deposition excerpts in their reply. Gibbs testified that there were no formal documentation standards for change orders for the project, but that something like a drain would require a further submission to the City for permitting and that he did not know about the second drain until after the fact. Bagdasar testified that the employees had “no choice” but to use the outdoor, temporary sink to wash their hands. E. The Trial Court’s Ruling After reviewing the submissions and hearing argument, the trial court entered summary judgment in favor of Respondents. The trial court found that there was no triable issue of fact. The court explained: “The undisputed facts show Aero agreed to upgrade the existing restroom ‘consistent with the plans’, the drain was outside the scope of the plans and expressly not approved by Gibbs. There is no evidence for a trier of fact to determine Aero volunteered to repair a defective condition, specifically the second drain hole 3 Bagdasar used the name “Rojas” but later confirmed that “Rojas” and “Sanchez” were the same person. 6 and the way it was left. Plaintiff tries to create a dispute by arguing an inference shows Sanchez received approval from Gibbs to construct the drain. This is directly refuted by Sanchez. For these same reasons, knowledge cannot be imputed to Aero because this work was done outside the scope of what Sanchez was tasked to do not just as reflected in the plans, but by Gibbs’ direct orders as well.” McLaughlin filed a timely notice of appeal. II. DISCUSSION McLaughlin asserts that the trial court should not have granted Respondents summary judgment. He argues that Respondents maintained control over the premises for the purposes of the bathroom remodel project, and that they therefore remained liable for any dangerous conditions created by their contractor. In addition, he asserts that there remains a disputed issue of material facts as to whether Sanchez created the second drain solely at the request and/or direction of Midas. A. Relevant Authority and Standard of Review We review an order granting a motion for summary judgment de novo, strictly construing the moving party’s evidence, and resolving evidentiary doubts in favor of the party who the trial court entered judgment against. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “[T]he party moving for summary judgment bears [the] initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) Among the ways in which a defendant may satisfy that initial burden is by producing evidence of a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 853.) If the defendant satisfies this 7 initial burden—by showing that there is no triable issue of material fact as to the plaintiff’s ability to state any claim or a complete defense to all claims— the burden shifts to the plaintiff to show that a triable issue of material fact does exist. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) As a general matter, “landlords have a common law duty ‘to maintain land in their possession and control in a reasonably safe condition’ ‘as to avoid exposing others to an unreasonable risk of injury.’ ” (St. John v. Schaeffler (2025) 109 Cal.App.5th 1146, 1156 (St. John).) At the same time, “landlords typically surrender possession and control over their property to their tenants, and those tenants have a reciprocal right to quiet enjoyment of that property without undue interference from the landlords,” and “a landlord’s lack of possession—and the concomitant lack of control over the property—alters the scope of [their more general] duty of care.” (Ibid.; see also Garcia v. Holt (2015) 242 Cal.App.4th 600, 604 (Garcia) [“It would not be reasonable to hold a lessor liable if the lessor did not have the power, opportunity, and ability to eliminate the dangerous condition”].) “If a dangerous condition on the property arises during the [lessee’s] tenancy—and hence while the tenant and not the landlord is in possession and control of the property—the landlord owes a duty of care to third parties injured by that dangerous condition only if (1) the landlord has actual knowledge of that condition, and (2) the landlord has retained a ‘right and ability to reenter’ the property to ‘ “obviate the presence of the dangerous [condition].” ’ ” (St. John, supra, 109 Cal.App.5th at p. 1158.) “Actual knowledge may be established by ‘direct evidence’ that the landlord ‘actually knew’ of the dangerous condition or by ‘circumstantial evidence’ indicating ‘that the landlord must have known’ of the condition; evidence that the landlord ‘should have known’ of the condition is not 8 enough.” (St. John, supra, 109 Cal.App.5th at pp. 1158–1159, fn. omitted.) “This more modest duty of care seeks to balance the out-of-possession landlord’s lack of possession and control against the ‘socially and legally unacceptable’ outcome of ‘permit[ing] a landlord’ to ‘sit idly by in the face of [a] known danger to others’ that the landlord has the power to stop.” (Id. at p. 1159.) There are several exceptions to this general rule, including, among others, “where the landlord volunteers to repair a defective condition.” (Garcia, supra, 242 Cal.App.4th at p. 605; see also Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 511 (Laudenslayer).) “A common element in these exceptions is that either at or after the time possession is given to the tenant the landlord retains or acquires a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury. In these situations, the law imposes on the landlord a duty to use ordinary care to eliminate the condition with resulting liability for injuries caused by his failure so to act.” (Laudenslayer, at p. 511.) B. Respondents Are Entitled to Summary Judgment Here, there is no dispute that Respondents had leased the premises to Midas, and that the alleged dangerous condition—the hole—arose during that tenancy. There is also no dispute that Respondents agreed to upgrade the restroom during the term of the lease, and that Respondents contracted with Sanchez to make those upgrades. Finally, there is no dispute that Sanchez cut the hole that led to McLaughlin’s injury to make a second drain at Midas’s request, but there is at least an alleged dispute as to whether Sanchez sought or received approval from Respondents for the drain. We begin by considering whether there remains a genuine issue of material fact as to the approval for the second drain. McLaughlin relies on testimony from Gibbs and Bagdasar to assert that there was at least an 9 inference Gibbs approved of the second drain. Bagdasar testified that Gibbs never said no to him directly, and that Sanchez said only that he would talk to Gibbs. McLaughlin presents no evidence indicating that Gibbs, or anyone else from Aero, actually approved the drain. And Sanchez testified that Gibbs told him, “no, don’t do it.” At most, the combination of testimony raises an inference that Bagdasar did not know whether Gibbs or Aero approved the drain. There is no inference that Gibbs or Aero did so. Rather, the only evidence is that Gibbs said no, and that Sanchez proceeded as a favor to Bagdasar, and without approval from Gibbs as was required by the contract. Accordingly, on our own independent review of the record, we conclude, as the trial court did, that there is no evidence (and thus no triable fact issue) that Respondents approved the second drain, or that Respondents had knowledge that Sanchez went forward with creating the drain, despite Gibbs telling him not to. But that does not end our inquiry. Although the drain that led to the hole that McLaughlin stepped in was not part of the agreed upon plans for the bathroom remodel, there is no dispute that Respondents did agree to remodel the bathroom and did hire Sanchez to do the associated work. Thus, Respondents did retain at least some degree of control over both the agreed upon bathroom renovation and the contractor that they chose. McLaughlin contends that the duty to conduct those repairs in a safe manner was non- delegable and that Respondents are liable for Sanchez’s conduct in making the repairs. (See Garcia, supra, 242 Cal.App.4th at p. 605; Laudenslayer, supra, 44 Cal.App.3d at p. 511.) We do not take issue with this basic contention but must still consider whether that liability extends to Sanchez’s independent agreement with Bagdasar to make the additional requested 10 drain, which Respondents contend was wholly outside the scope of their contract with Sanchez. Respondents point to the terms of the addendum to the lease agreement regarding the bathroom renovations. It states, in relevant part, “In order to commence and complete the Restroom Upgrades work [as defined by the attached architectural and planning documents], Tenant agrees to provide reasonable access to Landlord and its contractors relating to the demolition and construction and further acknowledges that the restrooms and areas around the restrooms may be out of service during some or all of the construction period.” And it also states, “Landlord’s contractor shall have the right to complete such work during normal business hours of Tenant provided that Landlord’s contractor will attempt to minimize any disruption to Tenant’s business operations as much as reasonably possible during the completion of the Restroom Upgrades.” (Italics added.) Respondents contend that the stated grant of access in the lease addendum did not equate to unfettered control over the premises, or even the bathroom. We agree. Had Midas undertook some other modification, maintenance, or repair, done by some contractor other than Sanchez, near or in the restroom at issue, without Respondents’ knowledge, Respondents likely would not have been liable for a dangerous condition created as a result of that work. (See, St. John, supra, 109 Cal.App.5th at p. 1156; Garcia, supra, 242 Cal.App.4th at p. 604.) Here, the primary differentiating fact is that Sanchez, the contractor who Respondents hired to undertake the bathroom renovations, is the same contractor who also agreed to create a second drain for Midas. As we have explained, the record before us establishes two additional facts critical to the analysis. First, the scope of the bathroom renovation that Respondents 11 agreed to undertake was specific and limited. The approved architectural plans were included as an attachment to the lease addendum. Second, Respondents did not agree to a change to those specific, identified plans to accommodate a second drain. Thus, the record conclusively establishes that the second drain was not part of Respondents’ agreement to undertake repairs. (Cf. Garcia, supra, 242 Cal.App.4th at p. 605.) In addition, Midas cannot establish that Respondents knew of, or even had the ability to discover, the hole created by Sanchez for the second drain. The record suggests that Gibbs typically went to the property “a couple times a week” to monitor the progress of the renovation. There is no indication that this occurred outside of normal business hours, when the lease addendum stated that Sanchez would have access for the purpose of completing the ADA renovations. The record is devoid of any evidence indicating that Gibbs visited the premises on the weekend, or that he (or anyone else from Aero) did so specifically between the Friday evening when the hole was cut and the Monday morning when McLaughlin fell into the hole. Instead, the record establishes that Gibbs had expressly told Sanchez not to create the second drain, that Sanchez decided to make that additional repair as a favor to Bagdasar, and that Respondents did not have actual knowledge of the hole. Given the totality of the record before us, we agree with the trial court that the exception for liability when a landlord volunteers to repair a defective condition does not apply specifically to the work related to the second drain. Respondents had a nondelegable duty to conduct the repairs that they undertook in a manner that did not create a dangerous condition on the premises, but they did not have a duty to ensure that their lessee, Midas, did not create its own dangerous condition by commissioning additional repairs without their knowledge and outside the scope of the contractual 12 agreement they had executed. (See Garcia, supra, 242 Cal.App.4th at p. 605 also Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, 782 [“The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant.”].) Based on the foregoing, we conclude that Respondents were entitled to summary judgment as a matter of law, and that the trial court did not err by granting judgment in their favor. III. DISPOSITION The judgment is affirmed. Respondents are entitled to costs on appeal. KELETY, J. WE CONCUR: DATO, Acting P. J. BUCHANAN, J. 13