Santizo v. Huerta CA2/5

Filed 2/28/22 Santizo v. Huerta CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JONATHAN SANTIZO, B302172

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC655367)

ELVIS HUERTA et al,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Affirmed.
Mark H. Aprahamian and Naris Khalatian for Plaintiff and
Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller and
Ernest Slome; Hartsuyker, Stratman & Williams-Abrego, Frank
J. Ozello for Defendants and Respondents.
 After suffering burns at a backyard graduation party held
at a friend’s home, Jonathan Santizo (plaintiff) brought a
premises liability tort claim against Maria Huerta (Maria), the
owner and landlord of the property where the party was held,
and her brother, Elvis Huerta (Elvis) (collectively, defendants),
who helped manage the property. The trial court granted
defendants’ motion for summary judgment, reasoning plaintiff’s
injuries were not foreseeable as a matter of law and were not
caused by defendants. We are asked to decide whether the grant
of summary judgment should be reversed for reasons procedural
(an asserted error in granting judgment on a ground not raised in
defendants’ moving papers) or substantive (the existence of a
material dispute of fact concerning whether defendants owed
plaintiff a duty of care).

I. BACKGROUND
In October 2013, Maria leased residential property she
owned in Santa Fe Springs, California, to Veronica Bonilla
(Bonilla) and her family, which included her son Dominique who
was 15 years old at the time. On the property were a three-
bedroom house, a one-car garage, and an open-ended, covered
storage shed that was attached to the garage.
In signing the lease, Bonilla affirmed she had inspected the
property, its furnishings, and equipment and found them to be
“satisfactory and in good working order.” The lease required
Maria, at her sole cost and expense, to maintain the property’s
air conditioning system and “water lines,” among other things.
The lease also limited Maria and her agent’s right to enter the
property to certain specified circumstances, such as making
necessary or agreed-upon repairs. In addition, the lease provided

2
for “quarterly walk-[throughs]” by Maria or her agent during the
first year of the lease and “bi-yearly thereafter.”

A. Things Go Wrong with the Fire Pit, and Plaintiff
Later Sues
Two and a half years later, in the evening on May 22, 2016,
Dominique hosted a small high school graduation party at the
property. Plaintiff was among the invitees. Neither Maria nor
Elvis were present at the property during the party. Bonilla
(Dominique’s mother) was there.
During the party, which was held outdoors, Dominique
retrieved a portable fire pit from the storage shed and placed it
on the backyard lawn. After the party-goers placed chairs around
the fire pit, Dominique, who had never before operated the fire
pit but had seen his stepfather use one while on a camping trip a
year earlier, poured gasoline onto the wood in the pit and then
used a lighter to start the fire.
After a time, the fire began to die out. Dominque unwisely
decided to try to restart the fire by pouring gasoline on the hot
embers. As he poured the gasoline, flames climbed the stream of
fuel and the gasoline canister caught on fire. Dominique then
threw the flaming canister to the ground.
When plaintiff, who had been sitting near Dominique, saw
a “fireball” coming his way, he attempted to back away but was
instead pushed toward the fire. Plaintiff attempted to extinguish
the fire by stomping on it. As he did so, he noticed his shorts had
caught fire and he suffered burns to his body. Eventually,
another guest extinguished the fire by smothering it.
Using a form complaint, plaintiff sued defendants and
Dominique and asserted a premises liability cause of action.

3
Plaintiff alleged all defendants were “negligent in failing to
properly maintain, inspect, supervise, [and] operate[ ] the fire pit
and did not have safety equipment.”

B. Summary Judgment Filings
Defendants (Maria and Elvis) moved for summary
judgment. They argued plaintiff could not establish they owed
him a duty of care. Defendants maintained they had no actual or
constructive knowledge of the fire pit, nor any reason to inspect
the premises for a fire pit. Declarations from both defendants
maintained they were not aware Bonilla and her family brought
a fire pit onto the property until months after the party where
plaintiff was burned.
Defendants’ declarations were supported by deposition
testimony from Bonilla, who stated she did not know of the fire
pit until after the incident and did not remember ever seeing it
before then, and from Dominique, who acknowledged defendants
had no knowledge of the fire pit.1 Elvis, who visited the property
occasionally to collect rent and help with property maintenance,
stated he never saw the fire pit and did not observe any burned
grass suggestive of a fire pit’s use on the property. In addition to
a lack of notice, defendants argued it was not foreseeable that
Dominique would misuse the fire pit by pouring gasoline on hot
embers.

1
Dominique testified during his deposition that the fire pit
was kept at the rear of the storage shed on the ground behind a
bicycle, a lawnmower, and garden tools—and that the entrance to
the shed from the backyard was covered by a bamboo curtain.

4
 Plaintiff’s opposition advanced four theories of liability in
an effort to defeat summary judgment.
Plaintiff argued defendants had actual or constructive
knowledge of both the fire pit’s existence and the dead or dying
condition of the backyard grass (that made it particularly
susceptible to catching on fire). To support the assertion of
actual or constructive knowledge, plaintiff highlighted Elvis’s
regular visits to the property to pick up mail and rent during the
first two years of Bonilla’s tenancy, some of which included trips
to the backyard to perform maintenance, and his presence on a
“couple” of occasions to watch his daughter play with Bonilla’s
daughter on a trampoline.2 Plaintiff argued the bamboo curtain
covering the opening to the storage shed where the fire pit was
stored was sufficiently transparent to permit observation of just
the top of the portable fire pit behind the other items in the shed.
Plaintiff did not dispute, however, that defendants did not own
the fire pit or place it on the property and defendants were not at
the property on the night plaintiff was burned.
Plaintiff also argued, alternatively, that it did not matter
whether defendants knew of the claimed dangerous condition on

2
In the trial court and on appeal, plaintiff asserts Elvis
attempted to repair the property’s sprinkler system in the
backyard during Bonilla’s tenancy. The assertion is based solely
on the deposition testimony of Bonilla. Bonilla did testify she
notified Elvis about the inoperative sprinklers, but she was
equivocal about whether Elvis ever attempted to remedy the
problem. Although she recalled Elvis and his father working in
the backyard for “hours” on one occasion, she repeatedly testified
she was “not a hundred percent sure” if Elvis and his father were
working on the sprinkler system or something else.

5
the property (i.e., the fire pit or the dried out lawn) because
defendants violated various fire safety laws and local ordinances.
A supporting declaration from former State Fire Marshall James
F. McMullen (McMullen) opined, for instance, that defendants
violated Fire Code section 307.5, which requires that a fire
extinguisher or other firefighting equipment, such as a garden
hose, be available for immediate use whenever portable outdoor
fireplaces are used. McMullen also opined that defendants’
neglect of the lawn in the backyard violated Santa Fe Springs
ordinance 95.03, which prohibits property owners from creating a
fire hazard through the existence of dead ground cover.
Plaintiff further argued Maria was negligent in entrusting
management of the property to Elvis, who was not qualified to act
as a property manager and did not discover and rectify various
purportedly hazardous conditions in the backyard, such as dead
or dying grass and malfunctioning sprinklers. A declaration
submitted by Jay T. Kacirk (Kacirk), a certified property
manager, opined Elvis was negligent because he did not perform
thorough, periodic inspections of the property.
Finally, plaintiff argued defendants owed him a duty of
care pursuant to the terms of the lease, which required Maria to
maintain and repair the property’s water lines (which plaintiff
read to include the sprinkler system), and the terms of Maria’s
home insurance contract, which obligated Maria to maintain “in
working order” either “an alarm system or automatic sprinkler
system.”
In their reply brief, defendants argued the conclusions
offered by McMullen and Kacirk about fire safety violations and
negligent property management were impermissible legal
opinions. Defendants also argued McMullen’s opinions were

6
based on assumptions not supported by the facts (e.g., that Elvis
must have or should have seen the fire pit on one of his visits to
the property that took him to the backyard). Defendants also
argued that “[it] was the Tenant’s son pouring gasoline on the
embers, causing the gas can to ignite and allegedly be thrown in
[p]laintiff’s direction that caused his injuries, not the [dry, brown]
grass.”

C. The Trial Court’s Ruling
In advance of the hearing on defendants’ motion for
summary judgment, the court issued a tentative ruling proposing
to grant the motion. The tentative ruling found defendants were
entitled to judgment as a matter of law “because they did not
cause [p]laintiff’s injuries and because [p]laintiff’s injuries were
not foreseeable.” Elaborating, the tentative reasoned:
“Defendants did not cause anyone to have a fire pit, maintain a
fire pit, or use a fire pit; even if Defendants knew the fire pit
existed, this would not alter the analysis. Defendants did not
cause [Dominique] to dump gasoline onto the burning fire.
Defendants did not cause [Dominique] to throw a gasoline
canister in [p]laintiff’s direction. While the dry grass may have
slightly exacerbated the problem, it was not foreseeable, as a
matter of law, that someone would choose to dump gasoline onto
a lit fire and then throw the canister across the yard.”
At the summary judgment hearing, plaintiff objected to
defendant’s reply brief, arguing, among other things, that it
raised an issue which was not raised in defendants’ moving
papers—i.e., causation—that appeared to animate the court’s
tentative conclusion that summary judgment should be granted.
Plaintiff asked for an opportunity to submit supplemental

7
briefing on the issue of causation. The court denied the request
for briefing because it believed the facts giving rise to the
causation issue were “very well known” to the parties and the
court and had been for a “very long time.” But the court did offer
to entertain a request to continue the hearing to permit plaintiff
to better prepare for oral argument on the causation issue.
Plaintiff’s counsel declined the court’s offer and elected to
proceed, thereafter arguing both that defendants had a duty of
care and proximately caused plaintiff’s injuries.
After hearing argument, the trial court granted summary
judgment for defendants. Explaining its thinking on the record
during the hearing, the court observed defendants were not on
notice of a risk of harm to plaintiff or any other invitee, because
there was “no inherently dangerous situation” on the property.
In the trial court’s view, even if both the canister of gas and the
fire pit were readily visible, neither one served to put defendants
on notice of a risk of harm. The court opined “gasoline is very
often stored in a backyard to run weed wackers and
lawnmowers,” and the fire pit was a “perfectly legal” home
appliance, one readily available at any number of commercial
venues. In other words, the court explained, the presence of
gasoline and a fire pit were not the equivalent of “finding stored
explosives [on the property].” The trial court further found there
was “no way” defendants could have foreseen Dominique pouring
gasoline on burning embers in the fire pit or plaintiff stepping on
the gasoline spilling out of the discarded gas canister while he
himself was on fire.
The court stated it would adopt its tentative decision as its
final order. As already discussed (and as we shall revisit), that
order concluded defendants were entitled to judgment as a

8
matter of law “because they did not cause [p]laintiff’s injuries and
because [p]laintiff’s injuries were not foreseeable.” The court did
not rule on the parties’ respective evidentiary objections because
“a ruling on the objections would not change the outcome of the
ruling on the motion.”

II. DISCUSSION
Plaintiff argues he was denied due process of law because
summary judgment was granted to defendants on an issue—
causation—that was not raised in defendants’ moving papers.
That understands the trial court’s ruling too narrowly, however.
The trial court’s order granting summary judgment finds
defendants were entitled to judgment as a matter of law for two
separate reasons: causation, and what the court called
“foreseeability.” The reference to foreseeability, which is the
most important element of a duty of care analysis that was the
focus of defendants’ motion for summary judgment, is a proxy
(albeit one that could have been clearer) for the court’s conclusion
that defendants owed plaintiff no duty of care; indeed, there
would be no need to mention foreseeability separate from
causation if the court’s ruling rested solely on proximate cause
grounds. Plaintiff had an opportunity to brief and argue whether
a duty of care existed. Moreover, even if the trial court’s order is
read as narrowly as plaintiff proposes (i.e., as limited only to
causation), there still was no due process violation because the
court offered to entertain a request to continue the hearing to
give plaintiff further time to prepare his argument and plaintiff
declined the offer.
On the merits, defendants were entitled to judgment as a
matter of law because plaintiff did not establish the existence of a

9
dispute of material issue of fact on whether he was owed a duty of
care. There is no substantial evidence in the summary judgment
record that defendants had actual or constructive knowledge of
the fire pit, and without that, mere dry grass (or the absence of a
portable fire extinguisher or garden hose) is not a dangerous
condition as a matter of law. Furthermore, even if there were
evidence on which a jury could rely to find defendants should
have been aware of the fire pit’s presence on the property, that
knowledge alone still does not suffice to permit a finding that
defendants owed plaintiff a duty of care. It was not foreseeable
that tenant’s son (or any other family member) would use the fire
pit in a demonstrably unsafe manner by pouring gasoline on
burning embers, and lacking foreseeability, there is no basis to
impose a duty of care.

A. The Trial Court Did Not Deny Plaintiff Due Process of
Law
Plaintiff maintains that when the trial court found that the
incident was “not foreseeable as a matter of law,” the court was
“considering foreseeability as an element of causation,” and not
an element of duty. Citing Juge v. County of Sacramento (1993)
12 Cal.App.4th 59 (Juge), plaintiff argues that because
defendants did not raise or address causation in their moving
papers, he was denied due process of law when the trial court
granted summary judgment to defendants on that issue.
Plaintiff’s argument is at odds with the plain language of the
final order.
The final order does not state the trial court decided the
motion on causation grounds alone. Rather, it expressly states
defendants were entitled to summary judgment “because they did

10
not cause [p]laintiff’s injuries and because [p]laintiff’s injuries
were not foreseeable.” (Italics added.) The court’s choice of
language shows it regarded foreseeability as something separate
and distinct from the issue of causation. (If, as plaintiff
maintains, the court used “foreseeability” as an element of
causation, then the court’s ultimate finding would be illogical on
its face—granting summary judgment to defendants on causation
grounds twice.) In view of the fact that defendants’ motion was
based solely on grounds of duty, and because foreseeability is a
“crucial” consideration in determining whether a defendant owes
a duty of care to the plaintiff (Ann M. v. Pacific Plaza Shopping
Center (1993) 6 Cal.4th 666, 676 (Ann M.)), the phrasing in the
court’s final order indicates the court used the term
“foreseeability” as shorthand for a duty of care analysis. And
plaintiff undisputedly had an opportunity to brief that.
Moreover, even assuming just for argument’s sake that
plaintiff were correct that the references in the final order to
“foreseeability” did pertain only to a causation analysis, there
still was no violation of due process.
Plaintiff did not dispute the facts upon which the trial
court’s causation finding was predicated (none of which were
established by evidence submitted in reply, as defendants
submitted no evidence with their reply), and after learning the
court was predisposed to grant defendants’ motion on what
plaintiff believes were causation grounds, plaintiff rejected the
court’s invitation to request a continuance to better prepare for a
hearing on those issues. No violation of due process occurs under
such circumstances. (See, e.g., Juge, supra, 12 Cal.App.4th at 72-
73 [no procedural error where the plaintiff had not denied in his
opposition papers the material facts set forth by the county that

11
justified a causation-based ruling and the plaintiff declined the
court’s invitation to request a continuance after being advised the
court was inclined to grant summary judgment on causation
grounds].)

B. Summary Judgment Was Appropriate Because There
Is No Factual Dispute that Defendants Owed Plaintiff
No Duty of Care
Where a “‘case comes before us after the trial court granted
a motion for summary judgment, we take the facts from the
record that was before the trial court when it ruled on that
motion. [Citation.] “‘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. [Citation.]’
[Citation.]” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th
713, 716-717; accord, Schachter v. Citigroup, Inc. (2009) 47
Cal.4th 610, 618.) A party opposing a summary judgment
motion, however, must produce evidence that is both admissible 3
and “substantial.” (Sangster v. Paetkau (1998) 68 Cal.App.4th
151, 163 (Sangster) [“the plaintiff must produce substantial
responsive evidence sufficient to establish a triable issue of
material fact on the merits of the defendant’s showing”]; accord,

3
Although the trial court did not rule on any of the parties’
evidentiary objections, we proceed as if the trial court had
overruled all of them. (Reid v. Google, Inc. (2010) 50 Cal.4th 512,
534.)

12
Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411,
415 [“The plaintiff must produce ‘“substantial”’ responsive
evidence sufficient to establish a triable issue of fact”].)
“Duty is a necessary element of a cause of action for
premises liability.” (Garcia v. Holt (2015) 242 Cal.App.4th 600,
604 (Garcia).) Generally, a landowner has a duty to maintain the
land in a reasonably safe condition. (Ann M., supra, 6 Cal.4th at
674.) Exceptions to this general rule of liability are made only
when clearly supported by public policy. (Rowland v. Christian
(1968) 69 Cal.2d 108, 112 (Rowland).) Rowland sets forth the
following considerations to balance when determining whether an
exception to the general rule of liability should be made:
“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.” (Id. at 113.)
The Rowland factors, however, are not accorded equal
weight. Our Supreme Court has instructed that foreseeability
should be regarded as a “crucial” consideration. (Ann M., supra,
6 Cal.4th at 676; accord, T.H. v. Novartis Pharmaceuticals Corp.
(2017) 4 Cal.5th 145, 166 [foreseeability is the “‘most important’”
consideration]; see also Sturgeon v. Curnutt (1994) 29
Cal.App.4th 301, 306 [“If the court concludes the injury was not
foreseeable, there was no duty. There is no need to discuss the
remaining considerations”] (Sturgeon).)

13
 “Historically, the public policy of this state generally has
precluded a landlord’s liability for injuries to his tenant or his
tenant’s invitees from a dangerous condition on the premises
which comes into existence after the tenant has taken possession.
This is true even though by the exercise of reasonable diligence
the landlord might have discovered the condition.” (Uccello v.
Laudenslayer (1975) 44 Cal.App.3d 504, 510 (Uccello); accord,
Garcia, supra, 242 Cal.App.4th at 604 [“Public policy precludes
landlord liability for a dangerous condition on the premises which
came into existence after possession has passed to a tenant”].)
“The rationale for this rule has been that property law regards a
lease as equivalent to a sale of the land for the term of the lease.”
(Uccello, supra, 44 Cal.App.3d at 510.) “‘[W]here a landlord has
relinquished control of property to a tenant, a “bright line” rule
has developed to moderate the landlord’s duty of care owed to a
third party injured on the property as compared with the tenant
who enjoys possession and control. ‘“Because a landlord has
relinquished possessory interest in the land, his or her duty of
care to third parties injured on the land is attenuated as
compared with the tenant who enjoys possession and control.
Thus, before liability may be thrust on a landlord for a third
party’s injury due to a dangerous condition on the land, the
plaintiff must show that the landlord had actual knowledge of the
dangerous condition in question, plus the right and ability to cure
the condition.’ [¶] Limiting a landlord’s obligation releases it
from needing to engage in potentially intrusive oversight of the
property, thus permitting the tenant to enjoy its tenancy
unmolested.”’ [Citation.]” (Garcia, supra, 242 Cal.App.4th at
604-605.) Two cases illustrate the operation of this bright line

14
notice rule: Garcia, supra, 242 Cal.App.4th 600, and Sturgeon,
supra, 29 Cal.App.4th 301.
In Garcia, the defendants leased a resident property to a
tenant, who at some time during the tenancy created homemade
explosives and stored them on the property. (Garcia, supra, 242
Cal.App.4th at 602.) At or around the same time they leased the
property to the tenant, the defendants hired Garcia to maintain
the landscaping at the property. (Ibid.) Over the course of the
next five years, Garcia never noticed anything suspicious or
dangerous. (Id. at 602-603.) During the fifth year of the tenancy,
Garcia walked over unstable explosive material on the ground at
the back of the property and the material exploded. (Id. at 603.)
Garcia sued for premises liability, alleging the defendants were
negligent in their maintenance by allowing explosive materials to
be kept on the property. (Ibid.) Defendants moved for summary
judgment arguing they owed no duty to Garcia because they had
no actual or constructive knowledge of the explosive materials.
(Ibid.) In opposition, Garcia argued that because defendants had
a right to periodically enter the property, they had a
corresponding duty to periodically inspect the property regardless
of actual knowledge of a dangerous condition. (Id. at 603, 605.)
The trial court granted the defendants’ motion and the
Court of Appeal affirmed. (Id. at 603, 606.) The Court of Appeal
held “[t]he obligation to inspect arises ‘only if [the landowner]
had some reason to know there was a need for such action.’
[Citation.]” (Id. at 605; accord, Oh v. Teachers Ins. and Annuity
Assn. of America (2020) 53 Cal.App.5th 71, 86 (Oh) [no duty to
tenant’s employee because “an inspection would have revealed
nothing marked as hazardous or dangerous. ‘The landlord need
not take extraordinary measures or make unreasonable

15
expenditures of time and money in trying to discover hazards
unless circumstances so warrant’”].)
In Sturgeon, the Curnutts rented a house to their son,
Thomas. (Sturgeon, supra, 29 Cal.App.4th at 303.) While under
the influence of alcohol, Thomas waved a gun around; it went off
and struck a visitor, Sturgeon. (Id. at 303.) Sturgeon sued the
Curnutts for premises liability. (Id. at 304.) The trial court
granted nonsuit. (Id. at 305.) The Court of Appeal affirmed,
holding “the [Curnutts] did not owe a duty of care to [Sturgeon]
because the injury was not foreseeable.” (Id. at 303.) “The
evidence established the defendants knew Thomas had a problem
with alcohol; he was convicted of driving under the influence and
attended a rehabilitation program. They also knew Thomas had
firearms. What was missing . . . was any evidence these two
factors created a dangerous condition for those entering the
premises. Sturgeon offered no evidence Thomas ever harmed
anyone due to either his problem with alcohol or his possession of
firearms or that he handled firearms in an unsafe manner while
drunk.” (Id. at 307.) “[W]hile a logical possibility of harm
attends the combination of firearms and alcohol, nothing put the
defendants on notice a visitor might be injured. The presence of
firearms, alone, also raises the logical possibility of harm to
visitors, but it would be unreasonable to attach a duty simply
because the landlord knew about the firearms. The defendant’s
additional knowledge of Thomas’s drinking problem did little to
increase the foreseeability of harm to visitors since there was no
evidence he handled firearms while drinking.” (Id. at 308.)
Even construing the evidence liberally in plaintiff’s favor,
there is nothing that would permit a jury to find defendants had
actual or constructive knowledge of a fire pit at the property—

16
and, thus, that a fire-related injury to an invited guest was
foreseeable. Both defendants declared they did not learn of the
fire pit until after plaintiff was injured. Their testimony was
supported by Dominique, who testified defendants had no
knowledge of the fire pit, and by his mother. Bonilla, who did not
just periodically visit the property as Elvis did but lived there day
in and day out, testified she never knew a fire pit was on the
property until after plaintiff was injured. (Garcia, supra, 242
Cal.App.4th at 605; Bisetti v. United Refrigeration Corp. (1985)
174 Cal.App.3d 643, 648-649 [summary judgment affirmed on
landlord’s declaration he had no knowledge of dangerous vat on
premises or hole in the fence].) The absence of evidence that
defendants knew or should have known that Bonilla and her
family were storing and/or using a fire pit at the property
establishes it was not foreseeable to defendants that an invited
guest on the property was at risk from a dangerous fire-related
condition.4

4
Apart from the stored-away fire pit itself, plaintiff also
points to the dry grass in the property’s backyard (and perhaps
the absence of a garden hose or fire extinguisher) as itself a
dangerous condition. Our discussion focuses on the fire pit
because these features of the property cannot, as a matter of law,
support a premises liability claim with nothing more (i.e.,
without actual or constructive knowledge of the portable fire pit).
(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566
[“The law imposes no duty on a landowner—including a public
entity—to repair trivial defects, or ‘to maintain [its property] in
an absolutely perfect condition’”]; see also Ursino v. Big Boy
Restaurants (1987) 192 Cal.App.3d 394, 399 [“The rule which
permits a court to determine ‘triviality’ as a matter of law rather
than always submitting the issue to a jury provides a check valve

17
 Furthermore, even if defendants were aware or should have
been aware of the fire pit’s presence, there was no evidence
defendants were on notice Dominique or any other member of
Bonilla’s family would use the fire pit in a demonstrably unsafe
manner by pouring gasoline on hot embers. There was no
evidence the fire pit had previously been used at the property by
Dominique or anyone else, and no evidence Dominique or anyone
else in his family had ever operated a fire pit in a dangerous
manner. As Elvis stated in his declaration, there were no singe
marks in the backyard suggesting a fire pit was being used there.
Dominique testified he had never used the fire pit prior to the
night of the incident and had only seen a different fire pit used
one time before while on a camping trip away from the property.
In the absence of evidence that Bonilla or members of her family
engaged in unsafe fire pit behavior and defendants knew of such
conduct, any knowledge by defendants that a fire pit was stored
on the premises would not trigger a duty to inspect the property
or protect visitors to the property from injury arising from a fire
pit’s operation. (Sturgeon, supra, 29 Cal.App.4th at 308.)
Plaintiff, however, asserts liability can still be had in
certain limited circumstances where, in his words, “the landlord
volunteers to repair a defective condition, . . . when there is a
violation of a safety law, or where the injury occurs in an area
where the landlord retains control.” (Garcia, supra, 242
Cal.App.4th at 605.) Even accepting plaintiff’s view of the law,

for the elimination from the court system of unwarranted
litigation which attempts to impose upon a property owner what
amounts to absolute liability for injury to persons who come upon
the property”].)

18
there is no substantial evidence in the summary judgment record
that would permit a finding that these limited circumstances are
present here.
Plaintiff, for instance, argues defendants volunteered to
repair the backyard sprinklers but failed to do so, thereby
contributing to his injuries. Although the lease provided it is the
sole responsibility of the landlord to maintain the property’s
“water lines,” plaintiff failed to present any evidence that the
property’s water lines included the sprinkler system. Moreover,
the evidence that was presented suggested the sprinkler system
was the tenant’s responsibility, not the landlord’s. It was Bonilla,
not defendants, who called a gardener and paid for the sprinkler
system to be repaired and there was no evidence she was
reimbursed by defendants for the cost of the repair. In addition,
plaintiff did not present any evidence that after the sprinkler
system failed following its repair, Bonilla again alerted
defendants that the system was broken.
Plaintiff also asserts defendants were liable for his injuries
because of certain alleged safety violations. The assertion fails,
however, because there is no substantial evidence defendants
were on notice of the fire pit’s existence or use on the property; as
a result, they were necessarily unaware of any code violations
related to the fire pit. As the Court of Appeal explained in Oh,
supra, 53 Cal.App.5th 71, while a property owner may be
responsible for correcting or abating code violations once notified
or aware of the violation, there is “no authority for the
proposition that an owner violates [a statute or regulation] . . . if
it does not correct a code violation it did not commit and does not

19
know, or have reason to know, existed.”5 (Id. at 83-84 [“It was not
defendants who utilized the premises in violation of the Fire Code
or caused that to be done—it was [the tenant]”].)
Plaintiff’s related contention that it was the dry grass in
the backyard that constituted a safety violation (and dangerous
condition) fails for a similar reason. Even assuming for
argument’s sake that the dryness of the grass could be
determined through nonexpert observation alone to be at a
dangerous level under then-prevailing conditions (meaning a
hazard that exists “to a greater degree than customarily
recognized as normal by persons in the public service of
preventing, suppressing or extinguishing fire” (Cal. Code Regs.,
tit. 19, § 3.14)), there is still no evidence in the record that
permits us to determine precisely how dry the grass actually was
at the relevant time nor any substantial evidence that defendants
in fact were aware of the lawn’s state prior to the accident. There
was deposition testimony that defendants were at some point
aware the backyard sprinklers were not working and additional

5
In addition, McMullen’s opinion that defendants violated
various safety laws does not constitute substantial evidence
sufficient to raise a triable issue of fact. The California Evidence
Code does not “authorize an ‘expert’ to testify to legal conclusions
in the guise of expert opinion. Such legal conclusions do not
constitute substantial evidence. [Citation.] ‘The manner in
which the law should apply to particular facts is a legal question
and is not subject to expert opinion. [Citation.]’ [Citation].”
(Downer v. Bramet (1984) 152 Cal.App.3d 837, 841; accord, Hass
v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 21, fn. 2
[“[C]ourts do not consider an expert’s testimony to the extent it
constitutes a conclusion of law”].)

20
testimony that Elvis regularly visited the premises early on in
Bonilla’s tenancy, but that is not substantial evidence that can
give rise to liability.
Plaintiff’s next counterargument, that a trier of fact could
find defendants retained control of the backyard, is not supported
by the facts or the law. In connection with a residential property,
the landlord typically retains control over shared spaces only,
“such as common hallways, stairs, [and] elevators.” (Uccello,
supra, 44 Cal.App.3d at 511.) The lease did not designate the
backyard as a common area and plaintiff did not present any
evidence that the parties to the lease treated the backyard as a
common area. The only evidence that defendants arguably
shared use of the backyard with Bonilla and her family was
testimony by Bonilla that on a “couple” of occasions Elvis’s
daughter played on a trampoline with Bonilla’s daughter when
Elvis came to pick up his mail or the rent. The lease did give
Maria and her agents the right to enter the premises to inspect
and make repairs to equipment located in the backyard, but that
right is insufficient by itself to establish she retained control of
that area. (Mora v. Baker Commodities, Inc. (1989) 210
Cal.App.3d 771, 780-781 [the right to inspect and make repairs
did not establish landlord retained control of the property,
because the obligation to inspect and repair “occurs only if [the
landlord] had some reason to know there was a need for such
action”].) As already discussed, there was no evidence defendants
were on notice to inspect the property for a fire pit or its use in
the backyard.
Plaintiff finally advances a number of contract-based
theories for the existence of a duty of care, relying specifically on
the lease and Maria’s insurance policy. These theories do not

21
establish it was error to grant summary judgment because they
are not alleged in the operative complaint and defendants thus
had no obligation to negate them. (Falcon v. Long Beach
Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1275 [“Under settled
summary judgment standards, we are limited to assessing those
theories alleged in the [operative complaint]. [Citations.] ‘“The
burden of a defendant moving for summary judgment only
requires that he or she negate plaintiff's theories of liability as
alleged in the complaint”’”].) Plaintiff sued only in tort for
premises liability, not breach of contract. Plaintiff’s complaint
also makes no mention of either the lease or the insurance policy,
and the complaint was never amended to add any such
references.

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 DISPOSITION

The judgment is affirmed. Defendants shall recover their
costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.

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