Bernal v. Carson
| Decision Date | 23 June 2021 |
| Docket Number | D076997 |
| Parties | JOSEPH BERNAL, Plaintiff and Appellant, v. DENNIS CARSON, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, No ECU000341 L. Brooks Anderholt, Judge. Reversed.
Sutherland & Gerber and Lowell F. Sutherland, for Plaintiff and Appellant.
Law Offices of Joseph J. Barr & Associates and Joseph J Barr, Jr., for Defendant and Respondent.
Joseph Bernal was injured when he got into a physical altercation with teenagers who were trespassing in an abandoned home near his residence. Bernal filed negligence and nuisance claims against Western Residential Builders, LLC (Western), which owns the property on which the abandoned home is located, and Dennis Carson, a member and manager of Western. He alleged the defendants knew or reasonably should have known the dilapidated condition of the home was likely to attract trespassers prone to violence.
Carson moved for summary judgment on two grounds. First, he asserted the torts were committed by Western, if they were committed at all, and he could not be held personally liable based solely on his status as Western's member and manager. Second, he claimed Bernal instigated the confrontation with the teenagers-intervening conduct that allegedly broke the chain of causation and absolved Carson of tort liability. The trial court accepted the first of these arguments and granted summary judgment without addressing the merits of the second argument.
Bernal appeals the judgment entered after the summary judgment order. He asserts Carson may be held liable in tort to the extent he personally failed to abate a known nuisance under his control. Further, he claims the issue of whether his conduct was superseding presents a disputed question of material fact that is not suitable for resolution at the summary judgment stage.
We conclude both of Bernal's arguments have merit. Therefore, we reverse the judgment and remand the matter for further proceedings.
The following facts are taken from the evidence filed with the summary judgment briefing and are undisputed unless otherwise noted.
Western is a manager-managed limited liability company (LLC) that was formed to develop land for residential use. Western has two members-Carson and D Carson Construction, a corporation managed by Carson. Carson is Western's only manager.
In 2004, Western bought land in the City of El Centro (the City), including a 1.66-acre parcel with an abandoned home on it. At the time of the purchase, the home was in a state of general disrepair and had broken or missing windows, doors, and fixtures. Carson inspected the property shortly after the sale and was aware of the home's condition.
Acting on behalf of Western, Carson retained an engineering firm to subdivide the property for residential development. A tentative subdivision map was prepared. However, due to financial shortfalls, Western was unable to develop the property as planned. It remains undeveloped today.
Sometime in the mid-2000s, the Franchise Tax Board (FTB) suspended Western's powers, rights, and privileges as an LLC.[1]
In 2015, Bernal moved into a residence near Western's property. Before he moved in, he was aware there was overgrown brush and a vacant home on Western's property. At some point, he became aware that transients, vagrants, and minors occasionally visited the vacant home. On multiple occasions, Bernal spoke with trespassers on Western's property and told them it was not a good idea for them to be there.
Bernal reported the condition of Western's property to the City. A City Code enforcement officer inspected the property and issued a notice to abate directed to “Western Residential Builders LLC c/o Dennis Carson.” The notice stated the property was “covered with overgrown vegetation” and “pos[ed] an extreme fire hazard” in violation of the City Code. It described the condition as a public nuisance and ordered Western to abate or remove the nuisance.
Carson hired a repair person to address the issues discussed in the notice to abate. The repair person boarded up windows and doors on the home, posted no trespassing signs, and cleared out at least a portion of the overgrown brush on the property.
One evening, Bernal observed an unfamiliar vehicle parked on his cul de-sac. He also saw light and heard noises coming from the home on Western's property. Bernal left his residence to investigate and crossed over a pushed-down fence onto Western's property. He then called out and asked what was going on inside the home.
A group of teenagers was inside the home. After Bernal called out to them, the teenagers exited the home and returned to their vehicle, which was parked on the cul-de-sac near Bernal's residence. Bernal followed them.
Once the teenagers got back to their vehicle, Bernal grabbed one of the teenagers from behind and stated he could not leave until law enforcement arrived. Bernal then released the restrained teenager and pushed a second teenager into the vehicle. One of the teenagers testified in deposition that Bernal struck a third teenager on the head as well. Bernal denies the allegation that he struck a teenager on the head.
A scuffle ensued and punches were thrown. During the scuffle, Bernal suffered a black eye, abrasions, and a fractured wrist.
Bernal filed a complaint alleging nuisance and negligence causes of action against Carson and Western, as well as a negligence cause of action against one of the teenagers. Bernal alleged the home on Western's property was a nuisance due to its abandoned and dilapidated condition and Carson and Western had a duty to abate the nuisance. Further, Bernal alleged Carson and Western knew or reasonably should have known the home was “abandoned and in a dilapidated condition, ” and “said residence attracted transients, vandals, and drugs users, a substantial number of whom have a propensity towards violence.” According to Bernal, Carson and Western acted negligently by “allow[ing] the … residence to remain abandoned and dilapidated, thereby attracting persons with violent propensities ….”
Carson moved for summary judgment on two bases. First, he asserted he could not be held liable merely because he was a member and manager of Western, which owned the property on which the alleged nuisance was located. In support of this argument, Carson cited Corporations Code section 17703.04, subdivision (a), [2] which states in part as follows: Second, Carson argued that Bernal's pursuit of the teenagers and his confrontation with them was superseding conduct that broke the chain of proximate causation.
Bernal opposed Carson's summary judgment motion. He asserted he did not seek to hold Carson liable based solely on his status as a member and manager of Western. Rather, according to Bernal, he sought to hold Carson liable for his personal failure to remedy the known dilapidated condition of the home. Regarding proximate causation, Bernal asserted a plaintiff's own conduct can never constitute a superseding act. In the alternative, he argued that the issue of whether his conduct was superseding presented a disputed factual issue unsuitable for resolution on summary judgment.
After a hearing, the court granted Carson's motion for summary judgment. In its summary judgment order, the court quoted subdivision (a) of section 17703.04, and then made the following findings: On this basis, the court granted summary judgment and entered judgment in Carson's favor.
In this appeal, we consider whether Carson was entitled to summary judgment: (1) under the liability limitation provision in section 17703.04; or (2) on grounds that Bernal's conduct was superseding as a matter of law.
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 850.) Thus, a defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of' the ‘cause of action' in question ‘cannot be established,' or that ‘there is a complete defense' thereto.” (Ibid., citing Code Civ. Proc., § 437c, subd. (o)(2).)
Bernal asserted negligence and nuisance causes of action against the defendants. “To establish a cause of action for negligence, ...
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