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Martinez v. Bank Of America National Trust & Savings Association8/1/2000
CERTIFIED FOR PARTIAL PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County. Kenneth Gale, Judge.
Affirmed.
I. INTRODUCTION
This appeal presents the issue whether a bank, which acquires real property through foreclosure but which does not have possession or control of the property, has a duty to inspect the property and remedy its defects. We conclude that the bank has a duty to inspect and remedy defects on the property only if it has actual knowledge of the defect and the ability to prevent foreseeable harm.
In this appeal, defendant bank purchased property in a foreclosure sale. The bank then commenced an unlawful detainer proceeding to attempt to evict the former owners, who retained occupancy and possession of the property. While the bank's unlawful detainer proceeding was pending, plaintiffs' young son entered the property, where he was attacked by dogs owned by the former owners. After their child died of injuries sustained in the attack, plaintiffs sued the bank for wrongful death. Plaintiffs appeal from the grant of summary judgment in the bank's favor.
In the published portion of this opinion, we conclude that plaintiffs' opposition to the summary judgment motion created no triable issue of fact regarding whether the bank had actual knowledge of the dangerous condition of the property. We also conclude that the pending unlawful detainer proceeding, and the former owners' refusal to relinquish possession and control of the property, meant that the bank did not have the authority, ability, or power to repair defects on the property. Because of this lack of knowledge and of power and based on the factors in Rowland v. Christian (1968) 69 Cal.2d 108, we find that the bank owed no duty to plaintiffs. We therefore affirm the grant of summary judgment. The unpublished portion of the opinion addresses other issues.
II. STANDARD OF REVIEW
"Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) Separate statements setting forth plainly and concisely all material facts which the parties contend are undisputed must be included. (Ibid.) The trial court shall grant the summary judgment motion if all the papers submitted show that no triable issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. In determining whether the papers show that no triable issue exists as to any material facts, the court shall consider all of the evidence and all inferences reasonably deducible from the evidence, except that summary judgment shall not be granted on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact. (Id., subd. (c).)
A defendant meets its burden upon a summary judgment motion if that party has proved that "one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant has met that burden, the "burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists[.]" (Ibid.; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593.)
A defendant moving for summary judgment may disprove at least one essential element of the plaintiff's cause of action or show that plaintiff cannot establish an element of the cause of action. Once the moving party has met that burden, the opposing party bears the
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