Razoumovitch v. 726 Hudson Ave.

Filed 5/12/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ARKADI RAZOUMOVITCH, B316606
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV12915)
726 HUDSON AVE., LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Audra Mori, Judge. Reversed with directions.
Steven B. Stevens; Jacoby & Meyers Attorneys and Laura
F. Sedrish for Plaintiff and Appellant.
Kennedy & Souza and James P. Souza; Haight Brown &
Bonesteel and Arezoo Jamshidi for Defendants and Respondents.
INTRODUCTION
Having accidentally locked himself out of his apartment,
and unable to obtain assistance from the managers of the
building, Arkadi Razoumovitch went to the roof of the building
and attempted to drop down onto the balcony of his top-floor
apartment to enter his unit. He was unsuccessful, instead falling
to the ground and suffering injuries. Razoumovitch filed this
action for negligence and premises liability against 726 Hudson
Avenue, LLC, Kohen Investments LLC, Shahab Kohen, and
Brianna Camitses (the 726 Hudson defendants), the entities and
individuals who owned and managed the apartment building.
The 726 Hudson defendants moved for summary judgment,
arguing Razoumovitch could not establish that they owed him a
duty of care or that their alleged breaches of that duty caused his
injuries. The trial court agreed with them on both issues and
granted the motion. We disagree with both conclusions:
California law imposes a duty on everyone, including landlords,
to exercise reasonable care, and the 726 Hudson defendants have
not shown public policy considerations justify departing from that
general duty; and causation, as it is in most cases, is a factual
issue. Therefore, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Razoumovitch Files This Action
Razoumovitch filed this action against the 726 Hudson
defendants for negligence and premises liability, alleging their
failure to own and operate his apartment building in a safe
condition caused him severe bodily injury. Razoumovitch alleged
2
that, locked out of his apartment one evening, he “used the open
access to the roof of the [building] and attempted to enter his
apartment by lowering himself from the open roof onto his
apartment balcony,” in the course of which he fell to a landing
several stories below. He alleged the defendants “were
responsible for creating the dangerous condition that caused [his]
injuries” and failed to warn him of any dangerous condition.
Specifically, he alleged they had not sufficiently restricted access
to the building’s roof, had not placed sufficient barriers around
the roof’s perimeter, and had not placed an alarm or other device
on the roof-access door that would have warned them that
someone was accessing the roof.
B. The 726 Hudson Defendants Move for Summary
Judgment
The 726 Hudson defendants moved for summary judgment
or, in the alternative, summary adjudication. They contended
they did not owe Razoumovitch a legal duty of care at the time of
the incident because “the manner in which [he] sustained his
alleged injuries was highly unforeseeable.” They also contended
that, even if they owed him a duty, no alleged breach of that duty
proximately caused Razoumovitch’s injuries because his injuries
resulted solely from his “own knowing, intentional actions.”
The 726 Hudson defendants supported their motion with
Razoumovitch’s deposition testimony. Razoumovitch explained
he and two roommates lived on the top floor of their four-story
apartment building, in a unit with a balcony. On the night of his
fall, Razoumovitch and one of his roommates, Gonzalo Pugnaire,
returned to the apartment at 1:30 a.m. after having drinks at a
bar and discovered they had locked their keys in the apartment.
3
Their third roommate was either not home or not responding to
their attempts to get his attention. After repeatedly trying
without success to reach the off-site building manager,
Razoumovitch and Pugnaire went to the roof of the building
where, attempting to enter their apartment through the balcony,
Razoumovitch lowered himself over the edge of the roof, so that
he hung from the edge with his feet dangling in the air. After
inching his way along (what counsel for the 726 Hudson
defendants called) a “roof outcropping” where he hung at an
uncertain distance above his balcony, Razoumovitch attempted to
drop onto the balcony’s thick masonry wall. On landing there,
however, he lost his balance and fell. Asked if there was any
emergency circumstance requiring him to get into his apartment,
Razoumovitch answered, “Well, it was just needing to be home
and, you know, have a place to sleep.” The 726 Hudson
defendants asserted Razoumovitch admitted “there was no
emergency or pressing need for him to immediately access his
apartment that night . . . .”
The 726 Hudson defendants also submitted the declaration
of an architect, David Ball, who stated that, based on his review
of the apartment building’s plans and construction, “the building
appears to comply with all applicable codes with regard [to] the
roof of the building, and access to the roof of the building.” In
addition, the 726 Hudson defendants submitted the declaration of
Pauline Eradat, who stated she was employed by 726 Hudson
Avenue “to oversee the operation” of the building, was the person
most knowledgeable about its management and operation, and
would therefore know of “any incidents or complaints regarding
the property.” She stated that there had been “no complaints of
injuries or other incidents stemming from any access to or use of
4
the roof” before Razoumovitch’s injury and that she had “no
knowledge of or notice that . . . anyone would ever consider[ ] a
maneuver similar to what [Razoumovitch] attempted for any
reason.”
In opposition to the motion, Razoumovitch argued that the
726 Hudson defendants owed him a general duty of ordinary care
to which no exception applied and that there were triable issues
of material fact regarding whether the defendants failed to use
reasonable care in owning and maintaining the apartment
building and whether their failures caused Razoumovitch’s
injury. In response to the 726 Hudson defendants’ assertion
there was no emergency that required Razoumovitch to get into
his apartment, Razoumovitch cited evidence “[t]here was no
onsite property manager or a 24-hour emergency number to call
for assistance.” Razoumovitch supported his opposition with
declarations from Brad Avrit, a civil and safety engineer; Stephen
Donell, an expert in property management; and Razoumovitch.
Avrit stated his opinion that the 726 Hudson defendants’
ownership and management of the apartment building fell below
the standard of care in at least two relevant respects. First, Avrit
said the defendants “failed to adequately warn, prevent, restrict,
and/or control access to the roof.” More specifically, Avrit stated
that “the roof should have been for emergency egress only, and
not for arbitrary and/or unauthorized access by tenants and/or
visitors,” and that the defendants’ “use of an unlocked roof access
door and unlocked metal gate alone”—without “any warning
signage,” alarm, or “other control mechanism”—did not
sufficiently prevent or deter unauthorized access to the roof.
Second, Avrit stated the height of the roof’s parapet was
5
hazardously low and did not comply with applicable building
codes.1
Donell gave a similar opinion that the 726 Hudson
defendants’ ownership and management of the apartment
building fell below the standard of care. He asserted they did so
by “(1) failing to employ an onsite property manager in violation
of California law, (2) failing to provide a 24-hour emergency
number to the tenants of the property, (3) failing to deter
unauthorized roof access, including but not limited to failing to
alarm the door to the roof, installing any warning devices
whatsoever, (4) failing to install cameras that would capture the
stairwell leading to the roof and the roof itself, and (5) failing to
have any signage warning residents that roof access was for
emergencies only.”
Razoumovitch stated that, had his apartment building had
an onsite property manager on the night of his injury, he would
have contacted that person to let him into his unit and that, had
the building had a 24-hour emergency number, he would have
called it for assistance. Similarly, he stated that, had “the door to
the roof been alarmed,” he would not have opened it and that,
had there been warning signs “the roof door was alarmed” or
“was for use in emergencies and for authorized personnel only,”
he would not have gone onto the roof.
1 Avrit reported that the parapet ranged from nine to
15½ inches in height and that the applicable building code
provision for a roof where access is restricted “to skilled and
trained service personnel” or “contractors” required a parapet
height of 30 inches. In his opinion, however, because access to
the roof was “inadequately restricted” to such persons, the
applicable code provision in fact required a 42-inch high
guardrail.
6
Razoumovitch also cited Pugnaire’s deposition testimony
that, after discovering they were locked out of the apartment,
Razoumovitch and Pugnaire made numerous unsuccessful
attempts, by telephone and text message, to contact Eradat and
Camitses. Camitses, the building’s property manager, did not
live on the premises, but Pugnaire understood she “was the
emergency point of contact if you had a problem.”
C. The Trial Court Grants the Motion for Summary
Judgment, and Razoumovitch Appeals
The trial court granted the motion for summary judgment,
ruling that Razoumovitch failed “to raise a triable issue of
material fact concerning the foreseeability of the incident” and
that Razoumovitch’s “own conduct was a superseding cause of
[his] harm.” Razoumovitch filed a notice of appeal from the order
granting the motion, after which the trial court entered
judgment. Although an order granting a motion for summary
judgment is not appealable, and therefore Razoumovitch’s notice
of appeal was premature, we deem his notice of appeal to have
been timely filed from the judgment. (See Valdez v. Seidner-
Miller, Inc. (2019) 33 Cal.App.5th 600, 607; Lat v. Farmers New
World Life Ins. Co. (2018) 29 Cal.App.5th 191, 193; Mukthar v.
Latin American Security Service (2006) 139 Cal.App.4th 284,
288.)
DISCUSSION
A. Applicable Law and Standard of Review
“A court may grant a motion for summary judgment “‘only
when ‘all the papers submitted show that there is no triable issue
7
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’”’” (Fajardo v. Dailey (2022)
85 Cal.App.5th 221, 225; see Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618 (Regents).) “A defendant moving for summary
judgment has the initial burden of presenting evidence that a
cause of action lacks merit because the plaintiff cannot establish
an element of the cause of action or there is a complete defense.”
(Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 1068;
see Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) “‘Only after the
defendant carries that initial burden does the burden shift to the
plaintiff “to show that a triable issue of one or more material
facts exists as to the cause of action . . . .”’” (Fajardo, at p. 226;
see Luebke v. Automobile Club of Southern California (2020)
59 Cal.App.5th 694, 703.)
“‘“‘“We review the trial court’s decision de novo, considering
all the evidence set forth in the moving and opposing papers
except that to which objections were made and sustained.’”
[Citation.] We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.”’” (Hampton v. County of San
Diego (2015) 62 Cal.4th 340, 347; see Fajardo v. Dailey, supra,
85 Cal.App.5th at p. 711; Sabetian v. Exxon Mobel Corp., supra,
57 Cal.App.5th at pp. 1068-1069.)
B. The Trial Court Erred in Granting the Motion for
Summary Judgment
“To prevail on a claim of negligence, a plaintiff must prove
(1) the existence of a duty of care, (2) breach of that duty,
8
(3) proximate cause linking the breach to the plaintiff’s injury,
and (4) damages resulting from that breach.” (Pereda v. Atos Jiu
Jitsu LLC (2022) 85 Cal.App.5th 759, 767-768; see Brown v. USA
Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) “The elements
of a cause of action for premises liability are the same as those for
negligence.” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 214
(Kaney); see Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207
[“the plaintiff must prove, ‘“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”’”].)
In their motion for summary judgment, the 726 Hudson
defendants contended Razoumovitch could not establish the first
and third elements of his causes of action. Razoumovitch argues
the trial court erred in granting the motion for summary
judgment because, on the first element, the 726 Hudson
defendants did not establish they owed him no duty of care as a
matter of law and, on the third element, there were triable issues
of material fact regarding whether their alleged breaches of the
duty of care proximately caused his injuries. We agree with
Razoumovitch that the trial court erred on both grounds.
1. The 726 Hudson Defendants Failed To
Establish They Did Not Owe a Duty of Care
The first element, whether there is a duty, “is a question of
law to be resolved by the court.” (Brown, supra, 11 Cal.5th at
p. 213.) “The ‘general rule’ governing duty is set forth in Civil
Code section 1714” (Brown, at p. 213), which in subdivision (a)
provides: “Everyone is responsible . . . for an injury occasioned to
another by his or her want of ordinary care or skill in the
management of his or her property or person . . . .” “This statute
9
establishes the default rule that each person has a duty ‘to
exercise, in his or her activities, reasonable care for the safety of
others.’” (Brown, at p. 214; see Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 768, 771 (Cabral). Thus, as a general rule,
a “landlord owes a duty of care to a tenant to provide and
maintain safe conditions on the leased premises.” (Kaney, supra,
74 Cal.App.5th at p. 214; see Ramirez v. PK I Plaza 580 SC LP
(2022) 85 Cal.App.5th 252, 261 [under Civil Code section 1714,
“‘those who own or occupy property have a duty to maintain their
premises in a reasonably safe condition’”].)
In Rowland v. Christian (1968) 69 Cal.2d 108 the Supreme
Court “identified several considerations that, when balanced
together, may justify a departure from the fundamental principle
embodied in Civil Code section 1714: ‘the foreseeability of harm
to the plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.’” (Cabral, supra, 51 Cal.4th at
p. 771; see Rowland, at p. 113.) These factors “fall into two
categories. Three factors—foreseeability, certainty, and the
connection between the plaintiff and the defendant—address the
foreseeability of the relevant injury, while the other four—moral
blame, preventing future harm, burden, and availability of
insurance—take into account public policy concerns that might
support excluding certain kinds of plaintiffs or injuries from
10
relief.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145
(Kesner).)
Significantly, courts evaluate the Rowland factors “at a
relatively broad level of factual generality. Thus, as to
foreseeability, . . . the court’s task in determining duty ‘is not to
decide whether a particular plaintiff’s injury was reasonably
foreseeable in light of a particular defendant’s conduct, but
rather to evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in the
kind of harm experienced that liability may appropriately be
imposed . . . .” (Cabral, at p. 772; accord, Doe v. Lawndale
Elementary School Dist. (2021) 72 Cal.App.5th 113, 127; see
Regents, supra, 4 Cal.5th at p. 629 [in considering the Rowland
factors, “we determine ‘not whether they support an exception to
the general duty of reasonable care on the facts of the particular
case before us, but whether carving out an entire category of
cases from that general duty rule is justified by clear
considerations of policy’”].)
The 726 Hudson defendants, suggesting the “question of
duty in the landlord-tenant context first requires the court to
analyze whether the plaintiff’s injuries were foreseeable,”2 argue
2 For this proposition—and throughout their analysis of the
duty element—the 726 Hudson defendants cite Vasquez v.
Residential Investments, Inc. (2004) 118 Cal.App.4th 269 and
other not-so-recent court of appeal decisions. The 726 Hudson
defendants rely in particular on an “analytical approach to
evaluate the threshold legal question of duty” proposed by the
court in Vasquez (id. at p. 285), which they make no attempt to
reconcile with the approach the Supreme Court has set forth in
more recent cases. (See Brown, supra, 11 Cal.5th at pp. 213-214;
11
they did not owe Razoumovitch a duty of care because the risk of
his being injured by hanging off the edge of the roof to drop onto
his balcony was not foreseeable. They also argue that “none of
the other Rowland factors justify [sic] imposing a duty on [the
726 Hudson defendants] to prevent a tenant from intentionally
climbing down a building from the roof.” For example, regarding
the “moral blame” of the defendant’s conduct, the 726 Hudson
defendants argue “there is nothing morally blameworthy in light
of the fact that Razoumovitch knowingly went to the roof,
deliberately climbed down the side of the building until he was
hanging by his hands and intentionally dropped himself down to
the retaining wall of the balcony.”
These arguments rest on two fundamental mistakes. First,
they do not acknowledge the default rule that, under Civil Code
section 1714, the 726 Hudson defendants owed Razoumovitch a
duty of care to provide and maintain safe conditions at the
apartment building. The proper inquiry begins by assuming
there is a duty under that general rule, not by asking, as the
726 Hudson defendants ask, whether Razoumovitch’s injuries
were foreseeable. (See Brown, supra, 11 Cal.5th at pp. 217-218
[“inquiry whether a landowner owes a duty to her invitees . . .
begins with the ‘basic policy’ that ‘everyone is responsible for an
Kesner, supra, 1 Cal.5th at pp. 1142-1143; Cabral, supra, 51
Cal.4th at pp. 768, 771-772; see also T.L. v. City Ambulance of
Eureka, Inc. (2022) 83 Cal.App.5th 864, 875 [the Supreme Court
“has, in a number of its more recent opinions, instructed the
courts as to the legal lens we must employ in considering the
threshold issue of duty”].) We follow the approach currently
prescribed by the Supreme Court; to the extent Vasquez and
other cases cited by the 726 Hudson defendants depart from that
approach, we do not follow those cases.
12
injury caused to another by his want of ordinary care or skill in
the management of his property,’ and then considers whether
more particular considerations of policy call for departure from
the basic rule”].) Similarly, the proper analysis does not ask, as
the 726 Hudson defendants ask, whether the Rowland factors
justify “imposing a duty” on the 726 Hudson defendants; the
correct question is whether the Rowland factors justify limiting
the duty Civil Code section 1714 imposes on the 726 Hudson
defendants (and everyone else). (See Brown, at p. 217 [“The
multifactor test set forth in Rowland was not designed as a
freestanding means of establishing duty, but instead as a means
for deciding whether to limit a duty derived from other
sources.”].)
The second fundamental mistake in the 726 Hudson
defendants’ analysis is that, in arguing that under the Rowland
factors—especially those relating to the foreseeability of
Razoumovitch’s injuries—they did not owe him a duty of care, the
726 Hudson defendants wrongly insist on applying those factors
to the specific factual circumstances of this case. They complain
“Razoumovitch would have this court believe that imposing a
duty on a landlord to protect Razoumovitch from the harm he
suffered should not be based on the specific facts of the case.”
That’s exactly what Razoumovitch would have this court believe.
As would the Supreme Court, which as discussed has repeatedly
instructed that “‘the Rowland factors are evaluated at a
relatively broad level of factual generality.’” (Kesner, supra,
1 Cal.5th at p. 1143; accord, Cabral, supra, 51 Cal.4th at p. 772.)
“Thus, in applying the Rowland factors, the courts do not ask
whether they ‘“support an exception to the general duty of
reasonable care on the facts of the particular case before”’ the
13
court, ‘“but whether carving out an entire category of cases from
that general duty rule is justified by clear considerations of
policy.”’” (T.L. v. City Ambulance of Eureka, Inc. (2022)
83 Cal.App.5th 864, 876; see Regents, supra, 4 Cal.5th at p. 629;
Cabral, at p. 772.)
In sum, under the default rule, the 726 Hudson defendants
owed Razoumovitch a duty of care. And because they (mis)apply
the Rowland factors to the specific facts of this case—focusing, in
particular, on the circumstances that led to Razoumovitch’s fall
from the roof of his apartment building (his decision to hang from
its edge, his attempt to drop onto his balcony, etc.)—the
726 Hudson defendants have not established that this case falls
into “an entire category of cases” warranting a departure from
the general duty rule. The 726 Hudson defendants do not even
identify any such “category.”
The closest they come is in citing two negligence cases—
Montes v. Young Men’s Christian Assn. of Glendale, California
(2022) 81 Cal.App.5th 1134 (Montes) and Jacobs v. Coldwell
Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438(Jacobs)—where the courts held the landowner defendant did not
owe a duty of care because the plaintiff’s injury resulted from his
voluntarily encountering an obviously dangerous condition on the
property. (See Montes, at p. 1137 [plaintiff fell from a steeply
sloped roof “covered with brittle, broken, slippery and unstable
Spanish tiles”]; Jacobs, at p. 441 [plaintiff fell into an empty
swimming pool when he stepped onto a diving board that broke].)
Both cases cite the rule that “‘[f]oreseeability of harm is typically
absent when a dangerous condition is open and obvious.
[Citation.] “Generally, if a danger is so obvious that a person
could reasonably be expected to see it, the condition itself serves
14
as a warning, and the landowner is under no further duty to
remedy or warn of the condition.” [Citation.] In that situation,
owners and possessors of land are entitled to assume others will
“perceive the obvious” and take action to avoid the dangerous
condition.’” (Montes, at p. 1140; see Jacobs, at p. 447.) The
726 Hudson defendants argue that, under this rule, they did not
owe Razoumovitch a duty because “the dangers from climbing
down the building from the roof, hanging by one’s hands from the
ledge of the roof cropping and purposely dropping oneself onto the
retaining wall of the balcony, are obvious.”
Montes and Jacobs, however, do not help the 726 Hudson
defendants. Both cases state: “Whether a duty should be
imposed on a defendant depends on various public policy
considerations known as the Rowland factors.” (Montes, supra,
81 Cal.App.5th at p. 1140; Jacobs, supra, 14 Cal.App.5th at
p. 446.) As discussed, that’s backward: The law imposes a duty
on a defendant to act with reasonable care, and the court
considers the Rowland factors to determine whether various
public policy considerations should limit that duty. (See Brown,
supra, 11 Cal.5th at p. 217; Regents, supra, 4 Cal.5th at p. 628;
Kesner, supra, 1 Cal.5th at p. 1143; Cabral, supra, 51 Cal.4th at
pp. 768, 771.) Moreover, putting aside any arguably obvious
danger in accessing (and hanging from) the roof of the apartment
building, among the property conditions Razoumovitch contends
the 726 Hudson defendants had (and breached) a duty to remedy
or warn him of were the absence of an onsite property manager
and the lack of a 24-hour emergency telephone number for
15
tenants. The 726 Hudson defendants do not attempt to explain
how those conditions were obviously dangerous.3
Moreover, while as a general rule a landowner does not
have a duty to remedy or warn of an obviously dangerous
condition on its property, “‘this is not true in all cases. “[I]t is
foreseeable that even an obvious danger may cause injury, if the
practical necessity of encountering the danger, when weighed
against the apparent risk involved, is such that under the
circumstances, a person might choose to encounter the danger.”’”
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673.) “‘In other
words, while the obviousness of the condition and its
dangerousness may obviate the landowner’s duty to remedy or
3 The 726 defendants do not argue (nor did they argue in the
trial court) that, because Razoumovitch did not allege in his
complaint the 726 Hudson defendants breached their duty of care
by failing to have an on-site manager or a 24-hour emergency
number, Razoumovitch’s argument in opposition to the motion for
summary judgment went beyond the allegations of the complaint.
(See White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 354 [“‘the
burden of a defendant moving for summary judgment only
requires that he or she negate the theories of liability as alleged
in the complaint; that is, a moving party need not refute liability
on some theoretical possibility not included in the pleadings’”];
see also Soria v. Univision Radio Los Angeles, Inc. (2016) 5
Cal.App.5th 570, 585 [“[i]n assessing whether the issues raised
by plaintiff in opposing summary judgment are encompassed by
the controlling pleading, we generally construe the pleading
broadly”].) Instead, they argue that, “[e]ven assuming that
Defendants had such duties, which they did not, it was not
foreseeable that a breach of any of these alleged duties would
result in a tenant intentionally climbing down the building from
the roof.”
16
warn of the condition in some situations, such obviousness will
not negate a duty of care when it is foreseeable that, because of
necessity or other circumstances, a person may choose to
encounter the condition.’” (Kaney, supra, 74 Cal.App.5th at
p. 215; see Jacobs, supra, 14 Cal.App.5th at p. 447.)
Razoumovitch asserts that under the circumstances—
including that he was unable to seek assistance from an on-site
property manager or call a 24-hour emergency number—the
practical necessity of entering his locked apartment made it
foreseeable he might try to access his apartment through the
balcony from the roof of the building, despite any obvious risk
involved, to get into his home at night. He points out that the
726 Hudson defendants have yet to suggest what he should have
done instead. The 726 Hudson defendants, for their part, do not
address this exception to the general rule that a landowner has
no duty to remedy or warn of an obvious danger. Thus, even
under this theory, the 726 Hudson defendants failed to
demonstrate they did not owe Razoumovitch a duty as a matter of
law. (See Kaney, supra, 74 Cal.App.5th at p. 215 [landowner
defendant was not entitled to summary judgment on the element
of duty because the defendant did not “wrestle[ ] with the
exception” to the general rule for obviously dangerous conditions];
see also Florez v. Groom Development Co. (1959) 53 Cal.2d 347,
358-359 [jury is entitled to balance the necessity of the plaintiff’s
encountering an allegedly dangerous condition against the
danger of doing so, even if the danger is apparent].)
17
2. There Were Triable Issues of Material Fact on
Causation
Proximate cause “has two aspects. ‘“One is cause in fact.
An act is a cause in fact if it is a necessary antecedent of an
event.”’” (State Dept. of State Hospitals v. Superior Court (2015)
61 Cal.4th 339, 352 (State Hospitals); accord, Shih v. Starbucks
Corp. (2020) 53 Cal.App.5th 1063, 1068 (Shih); see State
Hospitals, at p. 352 [“This is sometimes referred to as ‘but-for’
causation.”].) “The second aspect of proximate cause ‘focuses on
public policy considerations. Because the purported [factual]
causes of an event may be traced back to the dawn of humanity,
the law has imposed additional “limitations on liability other
than simple causality.”’” (State Hospitals, at p. 353.) One of
those limitations is “‘“the degree of connection between the
[defendant’s] conduct and the injury.”’” (Ibid.; see Novak v.
Continental Tire North America (2018) 22 Cal.App.5th 189, 197
[connection between the defendants’ conduct and the injury
suffered was “too attenuated” to satisfy the element of proximate
causation].)
“‘“Ordinarily, proximate cause is a question of fact which
cannot be decided as a matter of law . . . . Nevertheless, where
the facts are such that the only reasonable conclusion is an
absence of causation, the question is one of law, not of fact.”’”
(Shih, supra, 53 Cal.App.5th at p. 1071; accord, State Hospitals,
supra, 61 Cal.4th at p. 353; see Huang v. The Bicycle Casino, Inc.
(2016) 4 Cal.App.5th 329, 348 [proximate cause “‘is generally a
question of fact for the jury’”].)
The 726 Hudson defendants do not appear to dispute there
is a triable issue of material fact regarding whether their alleged
breaches of the duty of care were a cause in fact of
18
Razoumovitch’s injuries. In any event, Razoumovitch created a
triable issue on that question by stating in his declaration that,
had the 726 Hudson defendants not breached their duty of care to
him—by, for example, not having an on-site property manager or
an alarm on the roof-access door—he would not have gone onto
the roof on the night of his injury.
Concerning the second aspect of proximate causation, the
726 Hudson defendants argue it was not foreseeable “that a
tenant being locked out of his or her apartment would result in
the tenant intentionally climbing down the side of a building to
access his apartment.” (See Cabral, supra, 51 Cal.4th at p. 779
[“‘the closeness of the connection between the defendant’s conduct
and the injury suffered’ [citation] is strongly related to the
question of foreseeability”].) A jury may well agree (or assign
Razoumovitch considerable comparative fault), but the issue
cannot be decided as a matter of law on this record. Given, for
example, the evidence regarding the proximity of Razoumovitch’s
balcony to the edge of the roof and the evidence tending to show
at least some degree of practical necessity for entering his
apartment through the balcony, causation was a factual issue.
Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136(Modisette), on which the 726 Hudson defendants primarily rely,
is not to the contrary. There, the plaintiffs were injured when a
driver using a smart phone with a one-on-one video chatting
application crashed into their car on the highway. (Id. at p. 139.)
The plaintiffs sued the technology company that developed the
smart phone and the application for negligence and other causes
of action, alleging the company’s failure to implement an
alternative phone design that would have prevented people from
using the application while driving caused their injuries. (Id. at
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pp. 140, 152.) Affirming the trial court’s order sustaining the
defendant’s demurrer to the complaint without leave to amend,
the court held the plaintiffs could not establish proximate
causation. (Id. at p. 155.) But that holding did not rest on a
determination the plaintiffs’ injuries were an unforeseeable
result of the defendant’s conduct.4 Rather, the court concluded
“the gap between [the defendant’s] design of the [smart phone]
and the [plaintiffs’] injuries is too great for the tort system to hold
[the defendant] responsible.” (Id. at p. 155.) The 726 Hudson
defendants have not demonstrated any such gap between their
alleged breaches of the duty of care and Razoumovitch’s injuries.
4 In fact, analyzing the duty element of the negligence causes
of action, the court in Modisette stated that “Rowland’s
foreseeability factor weighs in favor of imposing a duty of care on
[the defendant] because ‘the category of negligent conduct at
issue is sufficiently likely to result in the kind of harm
experienced.’” (Modisette, supra, 30 Cal.App.5th at p. 144.)
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DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order granting the motion by the 726 Hudson
defendants for summary judgment or, in the alternative for
summary adjudication, and to enter a new order denying the
motion. Razoumovitch is to recover his costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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