Judge Anne Hwang, Case Number: 22STCV05640, Date: 2024-10-02 Tentative Ruling

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.

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

On February 15, 2022, Plaintiff Bryan Hutchinson (“Plaintiff”) filed a complaint against Defendant Ray’s Paving Solutions, Inc. (“Defendant”) for negligence. Plaintiff alleges that on September 1, 2021, Defendant negligently paved the entire street of Corvo Way and caused water to drain and cause damage to Plaintiff’s property. (Complaint, 4.)

Defendant now moves for summary judgment, arguing that liability is precluded by the Completed and Accepted Doctrine. Plaintiff opposes and Defendant replies.

“[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.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) ¿“[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.) .) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

“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”].)

The Court declines to rule on Plaintiff’s objections as they have no effect on the ruling herein.

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.)

Under the “completed and accepted” doctrine, “when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.” (Nieman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969 [citations and alterations omitted].) The rationale for this doctrine is that “an owner has a duty to inspect the work and ascertain its safety, and thus the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect.” (Id. [citations omitted].)

This doctrine only applies to patent defects, not latent defects. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1467.) “If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” (Id.) Therefore, the liability of a contractor for negligence depends on whether the defect is latent. (See id. at 1470.) “In the context of a patent defect, the word ‘patent’ ‘refers to the patency of danger and not merely to exterior visibility.’” (Id. at 1470-71 [finding that the pouring of concrete on a stairway landing allowed water to pool and was a patent danger as a matter of law because “as a matter of ordinary prudence, one would test whether water accumulated on the uncovered landings of stairways into buildings”].)

The basis for this doctrine is that “an owner has a duty to inspect the work and ascertain its safety, and thus the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect.” (Jones v. P.S. Dev. Co. (2008) 166 Cal. App. 4th 707, 712, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.)

Based on the evidence and arguments set forth by both parties, it appears undisputed that Defendant repaved a private road (Corvo Way) that is located behind Plaintiff’s property. Plaintiff’s property is down-hill from the road. It appears that after a rainy season in 2021, water traveled from the road and down the hill into Plaintiff’s property below, causing damage.

- During or around June 2021, Paul McGlothlin, on behalf of himself and the other Contracting Neighbors, contacted Raymond Alonzo, who owns and operates Ray’s Paving Solutions, Inc., to request an estimate for repaving Corvo Way in Topanga, CA. (UMF 6.)

- On or around June 15 and 22, 2021, Ray provided estimates proposing the application of an overlay, or fresh surface coating, of asphalt on Corvo Way. (UMF 7.)

- On or around June 18, 2021, Paul McGlothlin emailed Ray to request that the proposals include the language “that the natural/existing drainage will be followed during the resurfacing.” (UMF 8.)

- On or around June 22, 2021, Ray’s estimates were updated to explicitly state “The natural/existing drainage will be followed during the resurfacing.” (UMF 9.)

- The Contracting Neighbors contracted with Ray to resurface Corvo Way with explicit instructions to follow the natural/existing drainage during the resurfacing. (UMF 10.)

- At some time after June 22, 2021, Ray began and completed work to resurface Corvo Way.

- The work Ray performed was the installation of an overlay cap, which is the application of asphalt on top of existing asphalt. (UMF 14.)

- Ray performed the repaving work according to the proposals submitted for an overlay cap. (UMF 15.)

- Ray did not perform any work beyond the work he contracted to do for Contracting Neighbors, including grading or leveling of Corvo Way. (UMF 16.)

- After the resurfacing of Corvo Way was completed, the Contracting Neighbors used the repaved road to come and go from their respective homes. (UMF 17.)

- No Contracting Neighbor has ever contacted Ray to complain about his work to repave Corvo Way, nor has any Contracting Neighbor requested Ray perform further work on Corvo Way. (UMF 20.)

Defendant contends that Plaintiff argues the destruction of the curbs along the road allowed water to flow into his property. (Motion, 13.) Defendant also appears to argue that the absence of the curbs was clear after its work was complete, showing that the work was accepted since people began using the road.

In opposition, Plaintiff argues the curbs are irrelevant, and that the “defective subsurface conditioning, grading, and impervious materials used by the Defendant in its work on the roadway and Plaintiff’s property, without Plaintiff’s consent, authorization, acceptance, or approval, caused” massive flooding at Plaintiff’s home. (Opp., 7.)

- Corvo Way runs from one end of Plaintiff’s Property to the other, approximately 350 linear feet in total. Part of Corvo Way is situated on Plaintiff’s Property, inside Plaintiff’s Property line, and Plaintiff legally owns a portion of the Corvo Way road itself. (PAMF 30.)

- Defendant conducted work, including paving, on Plaintiff’s own Property, on Corvo Way, without Plaintiff’s consent or authorization. (PAMF 35.)

- The work conducted by Defendant on Corvo Way and Plaintiff’s Property was never completed. (PAMF 37.)

- Because the work that Defendant conducted consisted of paving, where impervious materials are placed over the earth, reasonable inspection would not show what drainage or grading measures were effected to reasonably ensure proper and safe drainage of water and debris throughout the community, including Plaintiff’s Property. (PAMF 49.)

- Only after further investigation, as a professional and expert in the fields of engineering, grading, and paving, did Plaintiff discover that Defendant paved without grading any of the road bed underneath the paving, and without providing proper and reasonable subsurface drainage, which resulted in the massive flooding conditions, with stormwater and debris “sheeting” down the inappropriately graded roadway and encroaching on Plaintiff’s Property causing a great deal of damage to the community and Plaintiff’s Property. (PAMF 51.)

- That Defendant did not regrade the pitch of the road bed prior to performance of work on Corvo Way and Plaintiff’s Property is a latent defect that caused substantial injury since the defect itself was hidden under the pavement and therefore not reasonably apparent to anyone. (PAMF 55.)

Plaintiff first argues the completed and accepted doctrine cannot apply since Defendant has failed to show who the “owners” of the project were. Plaintiff claims the work was done on his property, but that he did not consent to it. In reply, Defendant argues this is irrelevant because there is an easement to the road, and as a result, the neighbors who hired Defendant have an interest in it. (Reply, 3.)

Assuming the neighbors were the “owners” of the work, and accepted the completed project, the Court finds a triable issue of fact regarding whether the alleged defect was latent. Defendant does not explain how the defect alleged, the paving of the road at a particular pitch with particular materials, could be detected by the average person. Although Defendant’s estimate/proposal for the work does state that “[t]he natural/existing drainage will be followed during the resurfacing”, Defendant does not establish that as a matter of law an average person could test that upon reasonable inspection.[1] (Def., Exh. J.) Therefore, the motion for summary judgment is denied.

Based on the foregoing, Defendant Ray’s Paving Solutions, Inc.’s Motion for Summary Judgment is DENIED.

Defendant is ordered to give notice of this ruling and file a proof of service of such.

[1] Although Defendant argues that Defendant performed the work according to the proposals submitted and did not contract to grade or level the road (UMF 15, 16), there remains a triable issue of fact regarding whether the work according to the proposals submitted was properly performed. Defendant’s arguments that the paving is not the cause of Plaintiff’s damages is a new argument not raised by this motion. (Reply at p. 5.)

DEPT:	32
HEARING DATE:	October 2, 2024
CASE NUMBER:	22STCV05640
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant Ray’s Paving Solutions, Inc.
OPPOSING PARTY:	Plaintiff Bryan Hutchinson