New case law - Because cannabis is illegal under Federal law, County had no right to give Conditional Use Permit to grower (Crandall v. Santa Barbara)

In JCC Crandall LLC v. County of Santa Barbara (October 29, 2024) B333201, the Second District, Division Six, has declared that no matter what one may think, possession of cannabis remains illegal under Federal law and therefore cannot be "legal" under the laws of California or any other state:

Many Californians have high expectations that cannabis is legal in California. This is a reasonable assumption because Civil Code section 1550.5 says it is. We regret to inform that cannabis is illegal in California because federal law says so. (Id., p. 1.)

The specific context in which this statement was made involved a dispute over an existing half-mile-long easement previously used to transport legal agricultural products; however, the easement was now to be used by a cannabis grower, a different use of the easement to which the servient landowner objected.  Santa Barbara County nonetheless granted a CUP, or 

Conditional Use Permit, to the cannabis facility, even though this CUP required use of the disputed easement:

The county grants a conditional use permit (CUP) for the cultivation of cannabis. To issue a CUP, the county’s land use code requires a finding that the streets and highways are adequate for the proposed use. A private easement over a neighbor’s land is the only access to the land subject to the CUP. The owner of the servient tenement objects to the use of his land to transport cannabis. The servient owner petitions for a writ of administrative mandate challenging the county’s grant of the CUP. The trial court denies the petition. We reverse because under federal law cannabis is illegal in California and everywhere else in the United States. The servient tenant’s objection on this ground is sufficient to defeat the CUP. That the possession and cultivation of cannabis has the imprimatur of legality in California is beside the point. (Id., pp. 2-3; emphasis added but footnote omitted)

Crandall first discussed the objection by the landowner and its claim it must consent to the use of the easement for cannabis transport.  The Second District found that Business & Professions Code section 26051.5(a)(2), providing that a cannabis owner must show "consent" to use the property where the growing will take place, required such consent from the "landowner" of the easement used to transportation.  This section therefore was not limited to situations where the "landowner," the word used in the statute, is a landlord whose tenant is using the property for cannabis, the restrictive reading urged by the County.

The Second District also found that even if section 26051 did not require the "landowner" to give consent, the transportation of cannabis exceeded the scope of the easementm, granted for agricultural purposes, because it involved the transportation of an "illegal" substance.

Specifically, under the Supremacy Clause of the United States Constitution, Federal law makes cannabis illegal in every state.  Therefore, in perhaps the most important portion of the opinion, the court explained there was no doubt the "product" to be transported via the easement was illegal:

It is often said that cannabis is legal in California. The statement is not true. Under federal law cannabis is illegal in every state and territory of the United States. (See Controlled Substances Act, 21 U.S.C. § 801 et seq.; 21 U.S.C. § 812 (c)(10); City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 377.) Article VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides in part, “The Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Id., p. 5.)

Noting there is a difference between permission to transport a legal and  an illegal product, the appellate court stated the easement did not contemplate the transport of the product of illegal cannabis growing.  Consequently, it was a "taking" of the petitioner's land to require that it involuntarily provide an easement:

The scope of the easement does not include the illegal transport of cannabis. Civil Code section 1550.5, subdivision (b) cannot expand the scope of the easement to allow such use. A statute that authorizes the permanent physical invasion of the land of another is void as violating the Takings Clause of the Fifth Amendment to the United States Constitution. (Loretto v. Teleprompter Manhattan Catv Corp. (1982) 458 U.S. 419, 426) (Id., p. 7.)

The judgment of the Hon. Jed Beebe, Judge Presiding, finding the CUP and the easement required to issue the CUP was properly granted, was therefore reversed.

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Triable Issue as to Whether Landowner Caused Exposure to Fungi (Beebe v. Wonderful)

Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises

The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis.  Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces.  This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn.  Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:  

The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.) 

Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else.  The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.  

Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury

Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm.  Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied.  Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds.  The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:

Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility. 

The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)

Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.)  A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)

Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;”  Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded.  Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm. 

Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment

Such motions often become a “battle of the experts” to the same extent as would a trial.  For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later. 

Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm.  Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.

California landowner owes a duty of due care to tenant falling off roof attempting to enter premises after being locked-out (Razoumovitch v. Hudson Ave. LLC)

A landowner owes a broad duty of due care to almost anyone else, no matter the circumstances, unless California public policy clearly dictates a reason to depart from this broad rule

In California, Civil Code section 1714(a) defines the duty of due care owed in a broad fashion, failing to limit the persons to whom the duty is owed.  Rather, this section states vaguely that “everyone” owes a duty of due care “to another:” 

Everyone is responsible, not only for the result of his or her willful acts, but also 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, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

However, in the landmark case of Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court explained 43 years later, Rowland provides there are several considerations which, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  As Cabral set forth, these considerations, sometimes called the “Rowland factors” include: 

. . . [T]he 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., p. 771.)

According to Cabral, courts only balance the landmark “Rowland factors” and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing.  This is because “in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ [Citations.]” (Cabral, 51 Cal. 4th at 771, quoting Rowland, 69 Cal. 2d at 112.)  Indeed, Cabral teaches that under any Rowland analysis of duty:

. . . [T]he Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that 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, 51 Cal. 4th at 772.)

This broad formulation of duty has led California courts to effectively foreclose the ability of landowners who, by any measure of common sense, should not be held liable to have their case dismissed before trial.  This is so despite the obvious misbehavior of the plaintiff in causing the harm.  In other words, landowners must now defend actions where the actions of the plaintiff are indefensible because they cannot obtain summary judgment by making a “no duty” argument.  

As but one example, in Razoumovitch v. Hudson Ave. LLC (May 12, 2023) B316606, the Second District, Division Seven [1], issued an opinion holding a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord.  This is true even where the roof area is not designed to be accessed by tenants. [2]

Raasomovitch was injured while trying to break into his own residence and appeals after his landlord is granted summary judgment

There is no doubt Rasomvitch was on the roof not due to any invitation, whether express or implied, but, instead, because he needed to circumvent the locked door and find a more unusual method of entering the premises:

Razoumovitch explained [at deposition] 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. 

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 . . . . (Id., pp. 3-4.)

Razoumovitch argued the landlord should have restricted his access to the roof, which access was made necessary, of course, because Razoumovitch had been locked out of his apartment.  Said plaintiff would not utilize the services of a locksmith or wait until the daytime when the landlord could be contacted; in fact, he insisted on attempting to enter the apartment by way of dangling from the roof and then argued the landlord should have “warned” him this was dangerous:

[Razoumovitch] 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. (Id., p. 2.)

The Hon. Audra Mori of the Los Angeles County Superior Court granted a motion for summary judgment brought by the defendant landowners.  Plaintiff appealed, and Justices Segal and his colleagues in the Second District reversed.

Public policy does not indicate there should be an exception to the rule a landowner owes a duty even though the tenant was on the roof without the encouragement of his landlord

Razoumovitch noted the defense had attempted to apply the analysis of duty to the specific facts of the case, an approach no doubt followed by many other jurisdictions and one which might appear to be the approach most logical.  The Second District, however, characterized this as a “mistake” and found these specific facts not dispositive.  Rather, according to its reading of Cabral and Rowland, a court should instead “consider whether carving out an entire category of cases from that general duty rule is justified by clear considerations of [public] policy. (Razoumovitch, p. 14, citing to T. L. v. City Ambulance (2022) 83 Cal. App. 5th 864, at 876.)  Razoumovitch did not, however, sufficiently discuss how one would decide whether the facts here — a tenant who is locked out making a foolish attempt to enter an apartment via the roof — fall within one “category of cases.”  In other words, how may one distinguish between a class of cases where a duty is owed versus another category, where a duty is not, without considering the “specific facts” of that case.

Razoumovitch thus concluded the general duty of due care applied here because the defense had not shown there were clear public policy considerations that indicated otherwise.  While the Second District did discuss and distinguish other case law cited by the defense it did not discuss in any real detail California public policy vis a vis the bizarre behavior of the plaintiff.  All of the following appear to indicate that a logical and fair consideration of public policy does not favor permitting recovery by a plaintiff such as Razoumovitch:

• Plaintiff caused this situation because he became locked out of his apartment

• The landlord gave no encouragement to use the roof area in question

• There is no indication the landlord has promised to provide 24-hour “lockout service” or, for that matter, that plaintiff paid for such as part of his rent
• There may have been other roommates in the apartment at the time plaintiff attempted to enter
• Plaintiff had been drinking at the time of the incident
• Despite this, plaintiff attempted, late at night, a move that required him to lower himself from the roof and then dangle his feet in the air

Razoumovitch did discuss the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But the court also noted this rule has a crucial exception and does not apply where the injury is “foreseeable” because the plaintiff has a “necessity” to encounter the harm. (Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.)  Of course, it may be obvious why this exception for the necessity to encouter an obvious danger should not apply to Razoumovitch, as he admitted there was no medical, safety, or pending emergency requiring him to enter the apartment and, therefore, he could have spent the night anywhere else he chose.  Still, the Razoumovitch court somehow found Kinsman, where the plaintiff was exposed to asbestos while working at an oil refinery facility, relevant as to whether a duty was owed to warn Razoumovitch of the obvious danger from the roof.  The Second District therefore tersely stated the defendants “do not address this exception to the general rule that a landowner has no duty to remedy or warn of an obvious danger” and found the defendants owed plaintiff a duty of due care. (Razoumovitch, p. 17.)

The appellate court also held defendants had not shown they were entitled to summary judgment on the grounds they were not the proximate cause of the harm

Razoumovitch also discussed the defense argument that they were not the “proximate cause” of the harm because the injury was not “foreseeable.”  Of course, proximate cause is ordinarily considered a legal issue, this prong of caution being distinguished from “cause in fact,” which requires consideration of disputed facts.  Nevertheless, Razoumovitch found that here the issue of proximate cause could not be decided as a matter of law “on the record here,” noting at page 19 that it may have been ”necessary” for plaintiff to attempt to access his balcony by way of the roof:

. . . [E]vidence 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. [3]

1 -The opinion by Justice Segal was joined by Justices Perluss and Feuer 

2 - One could imagine a rooftop area developed for the use of tenants, but there here was no allegation there was a rooftop garden or deck designed for relaxation or recreation

3 - While the court did not expressly adopt a rule a landlord owes a duty to provide a “lockout” service at all times, the fact the court mentioned this argument multiple times shows some at least sympathy for the situation plaintiff caused for himself.

Condo tenant owes no duty to visitors to remedy defect in common area (Moses v. McKeever)

 

Appellate court rejects claim tenant owes a duty to visitors because they have “implied control” over the porch owned by the homeowner association

The First District has held a tenant who does not have express control over the common area in a condominium association does not have a duty to either maintain this area or warn his invitees of any defective or dangerous condition. (Moses v. McKeever (May 5, 2023) A164405,)  As Justice Swope explained, the scope of the duty owed by a tenant as to common areas was dispositive and plaintiff Moses therefore could not state a claim for negligence.  In summary, Moses found the defendant tenant was entitled to summary judgment as to the entire complaint.

Plaintiff brought her claim after she fell while leaving the defendant’s residence:

. . . [Plaintiff] Moses provided her declaration stating that, upon her arrival to Roger-McKeever’s condominium, she mentioned to Roger-McKeever that the entryway was dark. Roger-McKeever acknowledged the issue and “was apologetic indicating that there was an electrical problem with the porch light.” According to Moses’s declaration, Roger-McKeever explained that her landlord had not been responsive in repairing the light. A photograph attached to the declaration depicted three steps leading up and away from a street sidewalk and to a short walkway that ended at a door to Roger- McKeever’s condominium (the entryway or walkway). Moses stated in her declaration that when she was leaving the condominium, she was not able to see the second step and lost her footing and fell. She also provided a declaration from a mechanical engineer, who opined that the steps were “grossly” out of compliance with applicable building code, and that the absence of a handrail and the riser heights of the steps were probable causes of the accident. (Moses, p. 3.)

Defendant maintained that, as a tenant, he had no duty to control the area outside his leased premises, especially as the lease gave him responsibility for maintaining any area outside the actual unit.  The trial court granted summary judgment in his favor and plaintiff appealed.  The appellate court upheld the judgment in favor of the defendant/tenant. [1]

  

Specifically, Moses found that a tenant whose lease gives neither the right nor responsibility to maintain a “common area” does not owe a duty to prevent or warn regarding any dangerous conditions over which the tenant has no control.  This is true even as to someone  invited to the premises, such as plaintiff.

  

Even under the most expansive view of duty, some sort of "control" of the premises is necessary to impose liability

Moses distinguished prior case law such as Alcarez v. Vece (1997) 14 Cal. 4^th 1149.  While ownership certainly is an indicia of control, lack of ownership does not absolve a defendant of responsibility for areas which over which they may exercise at least some control.  Plaintiff Alcarez fell upon a landscaped area whose ownership was unclear; however, whether or not the defendant owned this area or not, he owned the land adjoining this area.  Justice George wrote for a four to three majority which found an adjoining landowner potentially liable for a slip and fall despite lack of clear ownership where the landowner’s agents mowed the lawn and otherwise may have had some sort of “control” over this area.

  

Alcarez, of course, has led to a plethora of attempts by the plaintiffs’ bar to expand liability to include adjoining landowners to situations that are, under any logical analysis, patently unfair.  Indeed, Alcarez is often cited as providing for liability so expansive such includes not only the actual landowner but also someone who owns or maintains the premises adjacent to the area where plaintiff suffers harm. [2]

 

Unfortunately, trial courts often take this gambit and cite to Alcarez as a reason to not give full consideration to an adjoining tenant or landowner’s request for summary judgment, misreading Alcarez as providing for at least potential liability merely because the maintenance of one property might somehow spill over to the adjoining premises.  This includes, for example, landscape maintenance extending just beyond the property line.  This is so despite the fact Alcarez said:

. . . [T]he simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. (14 Cal. 4th at 1167.)

  

The problem, of course, is that in Alcarez the Supreme Court undermined this limitation by immediately adding, “[b]ut it cannot be doubted that such evidence is relevant on the issue of control,” strongly implying that whether such “neighborly maintenance” constitutes “control” is a factual issue. (Id.)  This in turn means a landowner foolish enough to tempt liability by performing such a neighborly act must therefore undergo the time and expense of a trial simply because they have performed a good deed and therefore cannot obtain dismissal by a motion for summary judgment. 

However, in Moses the Hon. Delbert C. Gee of the Alameda County Superior Court did not agree with plaintiff’s overly-broad interpretation of Alcarez. The appellate court unanimously affirmed the grant of summary judgment, readily distinguishing Alcarez and the other case law cited by the plaintiff.  Moses makes clear that any liability based upon Alcarez still requires the plaintiff show the crucial element of control. 

 

Therefore, contrary to what plaintiff argued, Moses held the possibility the defendant could have prevented the harm on the adjoining area controlled by another is not sufficient to impose liability:

To establish a duty of care under Alcaraz, it is insufficient to speculate that Roger-McKeever could have taken certain actions to prevent injury to Moses without showing that Roger-McKeever had actual control over the area where the injury occurred. “The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute ‘control’ of such property.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726.) To hold otherwise would undermine the general rule that a defendant is not liable for failing to protect the potential victim if he or she did not contribute to creating the risk. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 214.) (Moses, p. 12.)

Moses rejected the idea inviting plaintiff meant the defendant "impliedly adopted" the area where plaintiff fell

Given that plaintiff could show no actual  control over the common-area plaintiff stressed that the circumstances showed “implied” control:

Moses’s primary argument is that despite Roger-McKeever’s lack of control over that area, Roger-McKeever owed her a duty of care because Roger-McKeever “impliedly adopted” the walkway by inviting Moses to her condominium. (Moses, p. 11.)

Moses therefore considered Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal. App. 5th 843, which had found that where a contractor had “impliedly adopted” the premises of a commercial enterprise, said enterprise could be held liable for the negligence of its contractor.  However, Moses found that even if such a precedent was correctly decided it should be limited to a "commercial" context:

We have not found, and the parties have not provided, any cases that extend Hassaine’s “impliedly adopted” rule to non-commercial contexts. Moreover, even in cases involving a commercial enterprise, “control” is still a required element where the business invitee was injured outside the business premises. [Citation.] (Moses, p. 16.)

A crucial difference, of course, between a tenant in a residential context and the operator of a business is the “special relationship” between the business and its patrons. (Moses, pp. 16-17.) [2]   Defendant in Moses therefore owed plaintiff no duty of due care to have prevented or warned about the harm from the porch step, making it irrelevant that plaintiff that submitted evidence supposedly showing defendant knew the lack of lighting on the porch was "dangerous."  Likewise, the fact the common area was allegedly out of compliance with the relevant building code did not expand the scope of the tenant’s duty to maintain the area he leased, tenant being a mere leaseholder and not an owner. [3]

1 - Apparently the owner of the condominium was not a party to the suit at the time the tenant brought his motion.
2 - Alcarez may be the case most miscited by the California Plaintiffs’ Bar.  This is in terms of 1) misleading the trial court as to the facts in Alcarez, and 2) brazen attempts to apply its holding to situations where its rationale cannot possibly apply.  Such arguments ignore both public policy and the extensive discussion in Alcarez, which does not contemplate an expansion of tort liability to include all adjoining landowners.
3 - The question arises as to the potential liability of the owner of the condominium.  An owner may have less knowledge as to the lack of lighting in the common area outside the unit than would a tenant supposing, for example, that a lighting fixture owned by the association has just malfunctioned.  Still, a court might find the owner of the premises, as opposed to a tenant, has a greater duty to communicate with the association as to known defects.  Indeed, the CC&Rs (Codes, Covenants, and Restrictions) of the association may be pertinent to show the responsibilities of the individual unit owners versus the association.