Judge: Anne Hwang, Case: 21STCV32609, Date: 2024-04-18 Tentative Ruling

Case Number: 21STCV32609    Hearing Date: April 18, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment

2.      Memorandum of Points and Authorities; Declaration of Mark Bolin; Declaration of Anthony Calise; Declaration of Albert Bem

3.      Separate Statement of Undisputed Material Facts

4.      Compendium of Exhibits

OPPOSITION PAPERS

1.      Plaintiff’s Memorandum of Points and Authorities in Opposition

2.      Plaintiff’s Separate Statement of Disputed and Undisputed Material Facts

3.      Declaration of Josephine D. Far in Support   

4.      Table of Evidence in Support

REPLY PAPERS

1.      Defendant’s Reply

2.      Defendant’s Response to Plaintiff’s Undisputed Material Facts

BACKGROUND

            On September 2, 2021, Plaintiff Jose Luis Antonio Guerra Guerra (“Plaintiff”), filed this action against Defendants Anderson Moulding, LLC, John Doe, and Does 2 to 20 for negligence. On June 1, 2023, Plaintiff filed an amendment to the complaint, substituting Codie Baxter as Doe 1.

            The Complaint alleges the following. On September 3, 2019, Anderson Moulding, LLC’s employee, John Doe (Codie Baxter), caused panels of glass to fall on Plaintiff, causing injury.

Defendant Anderson Moulding, LLC (“Defendant”) now moves for summary judgment arguing there is no triable issue of fact surrounding duty and breach. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

            “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

            “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

DISCUSSION

Negligence

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  

In general, “[e]veryone 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.” (Civ. Code, § 1714.) Section 1714 “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 v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)  “[T]he law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse. [Citation.]” (Id. [internal quotation marks omitted].)

“‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”).)

Analysis

            Here, it is undisputed that Plaintiff alleges he was injured while in the course and scope of his employment with Forte Build and Design. (UMF 3.) There also appears to be no dispute that the incident occurred at a construction work site. Defendant sets forth the following additional facts:

-          Anderson Moulding is a “Supply Only Company,” meaning its only responsibility is to purchase and deliver items ordered from Anderson Moulding to the subject job site.  (UMF 5.)

-          Anderson Moulding received the order for a window panel that is the subject of Plaintiff’s claims (“the Product”) from Marty Berneman at Berneman Creative Designs on July 25, 2019. (UMF 6.)

-          The invoice for the Product was issued on August 28, 2019 (“Invoice No. 033381”) and provides, in relevant part, “Curbside delivery, Customer must provide labor to offload truck at curbside or driveway.”  (UMF 7.)

-          This reflected Anderson Moulding’s policy that the customer or the contractor at the subject job site is entirely responsible for unloading any and all delivered items.  (UMF 8.)

-          Further, on or around October 4, 2019, the warehouse manager at Anderson Moulding, Anthony Calise, discussed the delivery of the Product with the contractor for the Project, Louis S. Parada at Forte Build and Design. (UMF 9.)

-          During Mr. Calise’s conversation with Mr. Parada, he notified Mr. Parada that Anderson Moulding was not responsible for offloading the Product from the truck. (UMF 10.) Mr. Parada then agreed Forte Build and Design would provide the necessary labor to offload the Product from the truck upon delivery. (UMF 12.)

-          Accordingly, Anderson Moulding arranged for the delivery of the Product on October 4, 2019. (UMF 13.)

Plaintiff sets forth the following facts:

-          On September 3, 2019, Defendant Codie Baxter (hereinafter referred to as “Defendant Baxter”), an employee of Defendant Anderson, delivered windowpane glasses to the Property within the course and scope of his employment of Defendant Anderson. (PAMF 15.)

-          Upon Defendant Baxter’s arrival to the Property, Defendant Baxter demanded Mr. Guerra to help Defendant Baxter unload the windows or else he threatened to leave. (PAMF 17.)

-          .Mr. Guerra asked Defendant Baxter if the glass windows were heavy as Mr. Guerra observed that they were very large glass windows, to which Defendant Baxter responded, “not a lot” and for Mr. Guerra to “just come help me get them off.” (PAMF 18.)

-          An eyewitness to the scene, Edwin Guerra (hereinafter referred to as “Mr. Edwin”), signed a declaration under the penalty of perjury testifying that he personally witnessed Defendant Baxter get out of the driver’s seat onto the back of the delivery truck where the glass windows were placed, and heard Defendant Baxter tell Mr. Guerra to help Defendant Baxter unload the glass windows off the truck. (PAMF 19.)

-          While Defendant Baxter was unloading the glass windows off the truck, Mr. Guerra was standing on the ground while Defendant Baxter was above him in the open truck bed, handing the glass windows down to Mr. Guerra with one hand, and holding the remaining glass windows to be unloaded with his other hand. (PAMF 20.)

-          Upon handing a glass window to Mr. Guerra, Defendant Baxter subsequently allowed the remaining glass windows held by his other hand to fall and drop onto Mr. Guerra, thereby crushing Mr. Guerra (hereinafter referred to as the “Incident”). (PAMF 21.)

Here, Defendant has failed to meet its initial burden in establishing the absence of a triable issue of fact. Defendant has not provided enough facts of the alleged incident to show it owed no duty and there was no breach. However, even if Defendant met its burden, Plaintiff has shown a triable issue of fact. Here, Plaintiff sets forth evidence that contrary to Defendant’s purported policy that its deliverers did not help unload, Defendant’s employee Baxter was allegedly holding back the glass windows that were on the truck and then removed his hand, causing them to fall on Plaintiff. (See Far Decl., Exh. 12, Pl. Depo.; Exh. 11, Guerra Decl. ¶ 5.) Therefore, there is evidence that Baxter owed a duty since he created the risk of harm by helping to unload by holding back the windows, handing them to Plaintiff, and then releasing his hand, causing them to fall. (See Brown, supra, 11 Cal.5th at 214.) Also, a breach of duty is generally an issue of fact for the jury.

Defendant also provides no authority for the assertion that a prior disclaimer of responsibility had the legal effect of imposing no duty of care, in light of the disputed conduct of Baxter when the delivery occurred. (Motion, 7.) Defendant’s factual argument appears to be that there is no triable issue of fact Defendant could not have foreseen harm to Plaintiff. (Reply at p. 3.) However, regardless of the “multiple warnings to Plaintiff’s employer that Defendant does not unload product at the project site,” (Reply at p. 3.), the disputed facts are the Defendant did in fact unload the glass windows. Accordingly, the Court finds a triable issue of fact as to Defendant’s duty of care.

Lastly, Defendant does not dispute that Baxter was its employee. Therefore, the general rule that an employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment, appears to apply. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.) In any event, Defendant does not present any facts in its separate statement as to this issue.

Therefore, the motion for summary judgment is denied. Since the motion is denied, the Court declines to address Plaintiff’s request for a continuance.

CONCLUSION AND ORDER

Therefore, Defendant Anderson Moulding, LLC’s motion for Summary Judgment is DENIED.

Defendant shall provide notice of the Court’s ruling and file proof of service of such.