Filed 7/29/24 Maxwell v. West CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

JULIE MAXWELL et al.,

Plaintiffs and Respondents,

v.

SARA WEST,

Defendant and Appellant.

 H050542

 (Santa Cruz County

 Super. Ct. No. 20CV02138)

Julie and Gavin Maxwell sued Sara West after a fire started in West’s residence

and spread to and destroyed the Maxwell residence. The trial court granted plaintiffs’

renewed motion for summary adjudication on their negligence cause of action, and 

plaintiffs voluntarily dismissed their remaining causes of action. Defendant contends that 

plaintiffs should not have been permitted to renew their motion and that the trial court 

incorrectly found her to have been negligent per se. For the reasons explained here, we 

will affirm the judgment.

I. FACTUAL BACKGROUND

The trial court recited the following evidence in its order granting summary 

adjudication, based on plaintiffs’ separate statement of undisputed material facts: 

Defendant converted the lower portion of her residence into a rental unit in 1990. She

neither sought nor received the necessary permits, inspections, or certificate of occupancy 

for the rental unit. The rental unit violated fire prevention provisions of the locally 

adopted Uniform Building Code (building code), requiring exterior walls within three 
2

feet of a property line to be one-hour fire rated and prohibiting windows in such walls.

Defendant acknowledged that her property and plaintiffs’ property shared a “zero lotline.” It appears from the record that an exterior wall of defendant’s structure was within 

three feet of the shared property line.

A fire started in defendant’s rental unit at about 4:00 a.m. According to 

defendant’s deposition testimony, the fire completely engulfed her house and spread to 

plaintiffs’ home within 15 minutes. When firefighters arrived, the fire had already spread 

through the rental unit’s windows and ignited plaintiffs’ adjacent residence. Despite 

firefighters’ efforts, the fire destroyed both residences.

II. PROCEDURAL HISTORY

Plaintiffs’ complaint alleges three causes of action: negligence, trespass, and

negligence based on res ipsa loquitur. This appeal concerns only the negligence cause of 

action, which alleges that defendant breached her duty to prevent an uncontrolled fire 

from starting at her residence and spreading to plaintiffs’ residence.

Both parties moved for summary judgment as to negligence. Plaintiffs sought to 

amend their motion to assert negligence per se based on newly discovered evidence

regarding the rental unit’s building code violations. Because an amendment would be

untimely, plaintiffs voluntarily withdrew the negligence per se theory and requested leave 

to renew their motion. 

The trial court heard and denied the parties’ initial summary judgment motions in 

February 2022. The same day, the court and parties agreed to a return date for plaintiffs’ 

renewed motion, which they made two days later. 

The notice of renewed motion and counsel’s supporting declaration stated it was 

based on new facts, law, and circumstances. (Code Civ. Proc., § 1008, subd. (b).) The 

new circumstances included identifying “which fire codes Defendant had violated.” The

renewed motion asserted negligence per se based on the rental unit’s building code 

violations, as well as alternative theories of liability based on res ipsa loquitur and Public 
3

Resources Code section 4435 [relating to negligent maintenance or operation of any 

“device which may kindle a fire”]. 

Plaintiffs attached excerpts from the applicable building code that required any

exterior wall within three feet of a property line to be one-hour fire rated and have no

windows. Plaintiffs cited evidence that the rental unit did not comply with those 

requirements and that no permits had been sought or issued for the rental unit. Plaintiffs 

also cited evidence that the fire spread through the rental unit’s windows and ignited their 

house in under five minutes.

In her opposition papers, which were filed and served several days late, defendant 

argued that the trial court was required to deny the renewed motion because plaintiffs had 

failed to comply with the affidavit requirements of Code of Civil Procedure section 1008, 

subdivision (b). She contended that as a result the trial court lacked jurisdiction to allow 

a renewed motion. Defendant also argued that the complaint failed to plead a negligence 

per se theory. With respect to the code violations, defendant asserted plaintiffs had failed 

to show that “any theoretical failure to comply with building codes was a substantial 

factor in causing or contributing to the fire” and had failed to provide evidence that the 

construction of the rental unit was not code compliant. Defendant objected to a fire 

department report as inadmissible hearsay, and to the evidence regarding building code 

violations both as inadmissible hearsay and as inadmissible lay speculation. Defendant 

filed an expert declaration one day after her opposition papers, which was not referenced 

in her separate statement.

The trial court granted summary adjudication for plaintiffs on the negligence cause 

of action. Relying on the evidence of building code violations, the trial court found that 

plaintiffs had “met their burden of showing that there is no defense to a cause of action 

by proving each element of the cause of action for negligence (per se).” The court 

rejected defendant’s argument that plaintiffs were required to prove the fire’s cause in 

order to establish negligence per se, reasoning that the cause of the fire was irrelevant. 
4

Consistent with that reasoning, it found the fire department report lodged by plaintiffs 

was “not required to support the cause of action for negligence per se,” but nonetheless 

overruled defendant’s hearsay objection to the report. The court refused to consider the 

declaration from defendant’s expert about the building code violations because his 

opinions appear nowhere in defendant’s separate statement. Finally, the trial court

rejected defendant’s argument that the renewed motion was an improper motion for 

reconsideration, noting plaintiffs had demonstrated that the renewed motion was based on 

the newly discovered fact that defendant had failed to build a one-hour fire wall as 

required by law. The court also noted that nothing prohibited it from reconsidering a

previous order on its own motion. 

After denying plaintiffs’ motion for cost of proof sanctions, the trial court 

dismissed the remaining causes of action and entered judgment in the amount of 

$380,642.69, including prejudgment interest.

III. DISCUSSION

A. PROCEDURAL ARGUMENTS ON APPEAL

1. No Abuse of Discretion in Permitting Plaintiffs’ Renewed Motion

Defendant argues the trial court should not have permitted plaintiffs to make a

renewed motion for summary judgment because plaintiffs failed to comply with the 

affidavit requirements of Code of Civil Procedure sections 1008, subdivision (b) and 

437c, subdivision (f)(2). (Unspecified statutory references are to the Code of Civil 

Procedure.) Section 1008, subdivision (b) authorizes a party to renew a previously filed

motion “based upon new or different facts, circumstances, or law.” The renewing 

movant must provide a satisfactory explanation for not having produced the new facts, 

circumstances or law at an earlier time. (See, e.g., Baldwin v. Home Savings of America

(1997) 59 Cal.App.4th 1192, 1198–1199; Foothills Townhome Assn. v. Christiansen

(1998) 65 Cal.App.4th 688, 692–693, fn. 6.) The Supreme Court determined in Le 

Francois v. Goel (2005) 35 Cal.4th 1094 that although sections 437c, subdivision (f)(2) 
5

and 1008 “limit the parties’ ability to file repetitive motions,” they “do not limit the 

court’s ability, on its own motion, to reconsider its prior interim orders so it may correct 

its own errors.” (Le Francois, at p. 1107.) And trial courts retain inherent authority to 

allow a party to file “repetitive motions” for summary judgment or adjudication even 

where such procedural requirements are not satisfied. (Marshall v. County of San Diego

(2015) 238 Cal.App.4th 1095, 1105–1106.) We review for abuse of discretion the

decision to permit renewal of an earlier motion. (Westmoreland v. Kindercare Education 

LLC (2023) 90 Cal.App.5th 967, 976.)

Beyond merely disagreeing with the trial court’s decision to allow the renewed 

motion, defendant fails to allege any particular abuse, miscarriage of justice or 

deprivation of procedural protections afforded to an opponent of summary judgment. To 

the extent she objects to plaintiffs’ counsel filing a supporting declaration rather than an 

affidavit, a declaration signed under penalty of perjury is equivalent for purposes of the

renewed motion. (See § 2015.5 [a matter that must be supported by an affidavit may be 

established by a declaration made under penalty of perjury].) Defendant also was 

provided the full 75 days’ notice and a separate statement of material facts. (Compare

with Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243

[granting reconsideration based on new evidence and at the same time granting summary 

judgment deprived non-moving party of due process right to respond to new evidence 

under section 437(c)].) Defendant has not demonstrated an abuse of discretion in 

allowing plaintiffs’ renewed motion. 

2. Plaintiffs Were Not Required to Specifically Plead Negligence Per Se

Defendant challenges summary adjudication on a negligence per se theory because 

that theory was not framed by the pleadings. “ ‘Courts are encouraged to take a liberal 

approach in determining the scope of the pleadings, so long as those pleadings provide 

adequate notice to the opposing party of the theories on which relief is generally being 

sought.’ ” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211 (Jones).) “ ‘The test is 
6

whether such a particular theory or defense is one that the opposing party could have 

reasonably anticipated would be pursued, and whether a request for leave to amend 

accordingly would likely have been granted.’ ” (Ibid.) Negligence per se is not an 

independent tort; it raises an evidentiary presumption of negligence when violation of a 

statute, ordinance, or regulation proximately causes death or injury to someone protected 

by the enactment. (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1285–

1286; Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.) 

Negligence per se “can be applied generally to establish a breach of due care under any 

negligence-related cause of action.” (Jones, at pp. 1210–1211.) The doctrine of 

negligence per se is therefore “within the scope of pleadings that allege general 

negligence, as proof of a breach of duty is not limited to common law standards of care.” 

(Id. at p. 1211)

Plaintiffs’ first cause of action is titled “Negligence” and alleges defendant had “a 

duty to prevent an uncontrolled fire from starting at her residence that could in any 

manner threaten plaintiffs’ property”; defendant “negligently allowed a fire to start” at 

her residence; and “[t]he fire grew to such a size that it spread to neighboring properties, 

including plaintiffs[’].” Plaintiffs’ second cause of action for Trespass similarly alleges 

defendant negligently allowed a fire that started on her property to escape onto plaintiffs’ 

property. These allegations are sufficient to place defendant on notice of the potential 

application of negligence per se. And negligence per se was unambiguously raised in 

plaintiffs’ summary judgment motion, which cited Evidence Code section 669 (regarding 

negligence per se) and identified specific building code violations. Defendant also was 

aware of plaintiffs’ negligence per se theory before the renewed motion, as plaintiffs 

raised and detailed the theory before voluntarily withdrawing their initial motion.

Nor were plaintiffs required to amend their complaint to specifically plead 

negligence per se as a separate cause of action before renewing their motion. All of the 

decisions defendant cites for the contrary proposition—Government Employees Ins. Co. 
7

v. Superior Court (2000) 79 Cal.App.4th 95, 96; Laabs v. City of Victorville (2008) 

163 Cal.App.4th 1242, 1258; Hutton v. Fidelity National Title Co. (2013) 

213 Cal.App.4th 486, 493; and Jacobs v. Coldwell Banker Residential Brokerage Co.

(2017) 14 Cal.App.5th 438—hold that a plaintiff cannot defeat a defendant’s summary 

judgment motion by asserting negligence per se unless that theory was sufficiently 

pleaded in the complaint to give the defendant notice of that theory of liability. We find 

these authorities inapplicable here.

B. CHALLENGES TO EVIDENTIARY RULINGS 

1. The Trial Court Properly Excluded Defendant’s Expert Declaration

Defendant contends the trial court abused its discretion by excluding the defense 

expert’s declaration on the basis that evidence from that declaration was not included in 

defendant’s separate statement of undisputed material facts. Defendant contends the

declaration provides conflicting evidence on issues the trial court relied on in granting 

summary adjudication based on negligence per se. 

Section 473c, subdivision (b)(3) requires that an opposition to summary judgment 

“shall set forth plainly and concisely any other material facts the opposing party contends 

are disputed.” Further, “[f]ailure to comply with this requirement of a separate statement 

may constitute a sufficient ground, in the court’s discretion, for granting the motion.” 

(Ibid.) Whether to consider evidence not referenced in a party’s separate statement is a 

matter for the trial court’s discretion, which we review for abuse of that discretion. (San 

Diego Watercrafts, Inc. v. Wells Fargo Bank. (2002) 102 Cal.App.4th 308, 316.) An 

important consideration is whether the opposing party has had sufficient notice of the 

evidence it must refute. (Varshock v. Department of Forestry & Fire Protection (2011) 

194 Cal.App.4th 635, 653.)

Defendant does not dispute that the expert declaration is not referenced in her 

separate statement. The expert declaration was also untimely filed. The original hearing 

date on the renewed motion was scheduled for May 6, 2022; the reply brief was due 
8

April 29, 2022, and the opposition was due April 22, 2022. (§ 437c, subd. (b)(2), (b)(4).) 

The trial court continued the hearing to May 12, 2022 due to a medical issue. But the 

order continuing the hearing states, “Opposition and reply deadlines shall remain as per 

the original hearing date.” Defendant nonetheless did not file her opposition materials 

(which did not mention the expert) until April 26, and the expert declaration was filed 

April 27—two days before plaintiffs’ reply was due. Given that defendant’s own

tardiness significantly reduced plaintiffs’ notice of the content of the expert declaration, 

on this record defendant has not demonstrated an abuse of discretion in excluding the 

evidence. 

2. Defendant Forfeited Her Challenge to the Fire Department Report

Defendant challenges both the trial court’s decision to admit hearsay contained in 

the fire department report (specifically the investigator’s theory regarding the fire’s 

cause) and the related decision that the hearsay was irrelevant to a negligence per se 

determination. Defendant does not explain how she was prejudiced by the court

ultimately not considering the hearsay to which she objected. In any event, defendant has 

forfeited this evidentiary argument by failing to provide us with relevant legal authority 

or analysis. Even if we were to consider the argument, she fails to establish that the trial 

court’s admitting the report yet disregarding the purported hearsay contained in it was an 

abuse of discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

C. THERE ARE NO TRIABLE ISSUES OF FACT CONCERNING NEGLIGENCE PER SE

Summary adjudication is appropriate when there is no triable issue of any material 

fact such that the moving party is entitled to judgment as a matter of law on the relevant

cause of action. (§ 437c, subds. (c), (f)(1), (p)(1); see Jones v. Wachovia Bank (2014) 

230 Cal.App.4th 935, 945.) Although we review an order granting summary adjudication

de novo, the appellant nevertheless bears the burden of showing error on appeal. (Bains 

v. Moores (2009) 172 Cal.App.4th 445, 455.) 
9

It is well established that to prevail on a cause of action for negligence, the 

plaintiff must show the defendant had a duty to use due care, the defendant breached that 

duty, and the breach was the proximate or legal cause of the plaintiff’s resulting injury. 

(Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) Plaintiffs here sought 

summary adjudication on a negligence per se theory under Evidence Code section 669, 

which “provides for the application of a rebuttable presumption that a breach of the legal 

duty of due care has occurred where there has been a violation of a statute, ordinance or 

regulation.” (Haytasingh v. City of San Diego (2021) 66 Cal.App.5th 429, 468

(Haytasingh).) A presumption of negligence may arise “whether the law violated is a 

state statute, a safety order, an administrative regulation, or a local building code 

provision.” (Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium 

Assn. (2008) 166 Cal.App.4th 103, 119.) 

1. No Triable Issue as to Duty

Defendant contends plaintiffs did not establish that she owed them a duty. The 

scope of duty is a question of law we review de novo. (See Kesner v. Superior Court

(2016) 1 Cal.5th 1132, 1142–1143 (Kesner).)

Although the presumption of negligence created by Evidence Code section 669 

concerns the standard of care, rather than the duty of care (Millard v. Biosources, Inc.

(2007) 156 Cal.App.4th 1338, 1353; California Service Station Etc. Assn. v. American 

Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1177 [collecting cases]), statutes, 

orders, regulations, and similar enactments may be used by the court to establish a 

standard or duty of care in negligence actions. (Gravelin v. Satterfield (2011) 

200 Cal.App.4th 1209, 1218.) “A duty of care can also be grounded in—and hence 

‘borrowed’ from—the public policy embodied in a legislatively enacted statute or 

ordinance.” (Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021)

63 Cal.App.5th 917, 929 (Issakhani).) The focus remains whether a defendant owes a 

duty of care to the injured person, and the existence of a relevant statute is merely one 
10

factor in determining the existence of a duty. (California Service Station Etc. Assn. v. 

American Home Assurance Co., at p. 1178.) 

In its written order granting summary adjudication, the trial court found defendant 

owed plaintiffs a duty of care under Health and Safety Code section 13007. We note the 

court’s order used ellipses to quote that section as follows: “ ‘Any person who ... 

negligently ... allows fire to ... escape to, the property of another ... is liable to the 

owner of such property for any damages to the property caused by the fire.’ ” But that 

section conditions liability on a person setting a fire or allowing a fire to be set. Properly 

quoted in full the section provides: “Any person who personally or through another

willfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows 

a fire kindled or attended by him to escape to, the property of another, whether privately 

or publicly owned, is liable to the owner of such property for any damages to the property 

caused by the fire.” (Health & Saf. Code, § 13007.) Because plaintiffs did not present 

evidence that defendant either set or allowed the fire to be set, the trial court incorrectly 

relied upon Health and Safety Code section 13007 as the source of defendant’s duty.

We invited supplemental briefing about whether and under what authority 

defendant owed plaintiffs a duty of care. Plaintiffs asserted alternative bases for 

defendant’s duty in the trial court, including a general duty under Civil Code section 

1714, subdivision (a), which provides: “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.” The statute 

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, supra, 11 Cal.5th at 

pp. 213–214.) A “ ‘landowner’s duty of care to avoid exposing others to a risk of injury 

is not limited to injuries that occur on premises owned or controlled by the landowner.’ ” 

(Kesner, supra, 1 Cal.5th at p. 1159.) “ ‘Rather, the duty of care encompasses a duty to 

avoid exposing persons to risks of injury that occur off site if the landowner’s property is 
11

maintained in such a manner as to expose persons to an unreasonable risk of injury 

offsite.’ ” (Ibid.) Liability “ ‘for harm caused by substances that escape an owner’s 

property is well established in California law.’ ” (Ibid.) Courts “ ‘have consistently held 

private persons liable for negligently setting fires and for negligently allowing fires to 

escape to others’ properties.’ ” (Id. at p. 1160.) We conclude defendant owed plaintiffs a 

duty of care. 

Defendant asserts that, in order to determine the existence of duty, the trial court 

was required to analyze the factors set forth in Rowland v. Christian (1968) 

69 Cal.2d 108 (Rowland). The Supreme Court reaffirmed in Rowland “the basic policy 

of this state set forth by the Legislature in section 1714 of the Civil Code ... that 

everyone is responsible for an injury caused to another by his want of ordinary care or 

skill in the management of his property.” (Rowland, at pp. 118–119.) But the so-called

Rowland factors are not designed to establish a duty, but rather to determine whether 

particular circumstances warrant limiting an existing duty, such as the general duty under 

Civil Code section 1714, subd. (a). (Ibid.; Brown, supra, 11 Cal.5th at p. 217 [Rowland

factors consider whether to justify a categorical exception to the duty to protect].)

Defendant’s duty of care to plaintiffs can also be discerned in the public policy 

embodied in the building code. The trial court took judicial notice of the county 

ordinance adopting the Uniform Building Code (with certain amendments not relevant 

here). The ordinance states its purpose is “to provide minimum standards to safeguard 

life or limb, health, property and public welfare by regulating and controlling the design, 

construction, quality of materials, use and occupancy, location and maintenance of all 

buildings ... within this County.” Fire safety is a core objective of governmental 

building standards. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 465.) The prescribed

safety features for buildings impose a duty of compliance on property owners. (Finnegan 

v. Royal Realty Co. (1950) 35 Cal.2d 409, 423.) We observe that as occupants of 

residential units in close proximity, plaintiffs are among the class for whose protection 
12

the building code was adopted. Similarly, the fire damage to plaintiffs’ residence is 

among the harms that building regulations were designed to prevent. (Issakhani, supra,

63 Cal.App.5th at p. 931.)

2. No Triable Issue as to Breach

Plaintiffs offered evidence that defendant’s rental unit violated the building code, 

which raised a rebuttable presumption that a breach of the duty of due care occurred. 

(Evid. Code, § 669; Haytasingh, supra, 66 Cal.App.5th at p. 468.) We see no evidence in 

the record offered to rebut that presumption. (Evid. Code § 669, subd. (b)(1).) 

Defendant herself confirmed that the rental unit was less than three feet from plaintiffs’ 

property, which under the building code required the nearest exterior wall of the rental 

unit to be windowless and 1-hour fire rated.

3. No Triable Issue as to Causation

To be considered a proximate cause of injury, defendant’s acts must have been a 

substantial factor contributing to the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 

16 Cal.4th 953, 969.) Although causation is generally a factual determination, it may be 

decided as a question of law if “ ‘under the undisputed facts, there is no room for a 

reasonable difference of opinion.’ ” (Onciano v. Golden Palace Restaurant, Inc. (1990) 

219 Cal.App.3d 385, 395.)

The building code requires that certain exterior walls be able to withstand fire for 

up to one hour and prohibits the placement of windows through which fire could spread 

to nearby structures. Uncontroverted evidence established that defendant’s rental unit 

had multiple windows in the exterior wall adjacent to plaintiffs’ residence. The same

evidence, including defendant’s testimony, showed the fire spread within 15 minutes

through the rental unit’s windows to plaintiffs’ residence, which was already “fully 

involved” by the time firefighters arrived and therefore could not be saved from 

destruction. The foregoing established that the building code violations were a 

substantial factor in plaintiffs’ injury. As defendant presented no admissible evidence to 
13

the contrary, this record leaves no room for a reasonable difference of opinion about 

proximate causation.

4. No Triable Issue as to Damages

Plaintiffs established damages through a declaration regarding their costs to

rebuild their residence and their associated fire-related expenses. Defendant argues no 

evidence proves she is personally responsible for starting the fire, which would preclude

liability under either Health and Safety Code section 13007 or Public Resources Code 

section 4435. But as we have discussed, whether either of those statutes applies is

ultimately irrelevant: Defendant’s duty to plaintiffs arose under Civil Code section 1714, 

and the rental unit’s building code violations provided the basis for the trial court’s 

finding of negligence per se. Defendant’s arguments based on res ipsa loquitur are 

likewise irrelevant because the trial court did not rely on that theory in granting summary

adjudication.

IV. DISPOSITION

The judgment is affirmed. As the prevailing party on appeal, plaintiffs are 

awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Lie, J. 

H050542

Maxwell et al. v. West