Judge: Bruce G. Iwasaki, Case: 20STCV32997, Date: 2023-11-21 Tentative Ruling

Case Number: 20STCV32997    Hearing Date: November 21, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             November 21, 2023

Case Name:                Garcia v. Manulife Plaza

Case No.:                    20STCV32997

Matter:                        Motion for Summary Judgment or, in the alternative, Summary Adjudication  

Moving Party:             Defendant Otis Elevator Company

Responding Party:      (1.) Plaintiff Mayra Garcia

                                    (2.) Intervenor American Casualty Company of Reading, Pennsylvania

Tentative Ruling:       The motion for summary judgment is denied. The motion for summary adjudication is granted as to the second and third causes of action and denied as to the first cause of action.

            This is a personal injury action. On March 9, 2020, Plaintiff Myra Garcia (Plaintiff) alleges that she was injured when she tripped and fell entering an elevator (Elevator) in the lobby of the Manulife Plaza building, 515 South Figueroa Street, Los Angeles, California 90071 (Property). Plaintiff contends that as she entered the Elevator, her foot caught on the elevator car threshold – which was allegedly misleveled with the lobby – causing her to fall. Plaintiff sued John Hancock Life Insurance Company (John Hancock) and Otis Elevator Company (Otis) for products liability, premises liability, general negligence, and for violation of the Disabled Persons Act (the Act). American Casualty Company of Reading, Pennsylvania (American Casualty) filed a Complaint in Intervention.[1]

            Defendant Otis moves for summary judgment, or in the alternative, summary adjudication on the first (products liability), second (premises liability) and third (negligence) causes of action. Plaintiff opposes the motion. American Casualty joins in Plaintiff’s opposition.

            The motion for summary judgment is denied. The motion for summary adjudication is granted as to the second and third causes of action and denied as to the first cause of action.

Evidentiary Issues:

Plaintiff’s objections to Otis’s evidence is ruled as follows: Nos. 1 and 6 are sustained, Nos. 2-5 are overruled.

 Otis’s objections to Plaintiff’s evidence are ruled as follows: Nos. 1, 6-7, 9-11, 18-26, are overruled. Nos. 2-5, 8, 12-17, 27-28 are sustained.

 Both parties’ sets of objections fail to quote the objectionable material as required under California Rules of Court, rule 3.1354.

LEGAL STANDARD

“The 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists 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. (Ibid.) 

            “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

             In support of the motion for summary judgment, Otis moves on the grounds that Plaintiff cannot establish all the elements of her claims and the undisputed facts show that there is no evidence of any defect in the Elevator, or that it malfunctioned in any way. Further, Otis contends that there is no evidence that Otis owned, operated or controlled the Elevator. Nor is there any evidence that Otis had any prior notice of a dangerous condition or prior misleveling event, similar to Plaintiff’s Incident. Finally, Otis contends, there is no evidence that it was negligent in maintaining or servicing the Elevator, and none that it caused Plaintiff’s injury.

First Cause of Action for Products Liability:

            In moving for summary adjudication of the first cause of action for products liability, Otis argues that there is no evidence that the Elevator suffered from any defect or malfunction.

            “ ‘Products liability is the name currently given to the area of the law involving the liability of those who supply goods or products for the use of others to purchasers, users, and bystanders for losses of various kinds resulting from so-called defects in those products.’ ” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478.) “A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560.)

            “A plaintiff in a products liability case may seek recovery on theories of both strict liability and negligence.” (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 553.) Regardless of theory, however, “where a plaintiff alleges a product is defective, proof that the product has malfunctioned is essential to establish liability for an injury caused by the defect.” (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 855.)

            Here, Otis argues that the record demonstrates that there was no defect in the Elevator such that no defect in the Elevator could have caused Plaintiff’s injury.

            First, Otis submits evidence – based on the Maintenance Records and the testimony of Norma Madrid, the property manager – that there were no complaints related to the leveling of the elevator, and no complaints of any trip and fall hazard in the five years before the Incident. (DSS 7-9, 14, 15, 17.) Moreover, on February 13, 2020, weeks before the Incident, Otis performed four hours of general maintenance on the Elevator.  This maintenance consisted of the mechanic’s observations and maintenance related to the quality of the elevator ride, car leveling, stopping accuracy and door operation, among other items. (DSS 7.)

Additionally, Otis’s building mechanic, James Clark, inspected the Elevator three days after the incident on March 12, 2020, and found the elevator to be properly functioning – including that the car was level advanced of the door opening. (DSS 11.)

That same day, Senior Safety Inspector for the City of Los Angeles, Frederick Lu, also inspected the Elevator and determined that “all the safety devises [sic], signs, were inspected and found in compliances [sic] . . . therefore the conveyance was allowed to resume normal service.” (DSS 12-13.)[2]

            In opposition to the motion, Plaintiff notes that Defendant Otis only contends that there is no evidence of any product malfunction. In response, Plaintiff points to the declaration of its expert, Jospeh Stabler, to demonstrate the existence of a defect. (PSS 7-9.)

Plaintiff’s reliance on the declaration of Stabler is unpersuasive. As preliminary matter, Plaintiff’s separate statement and Opposition cites to the entire declaration Stabler declaration and fails to cite to any specific evidence. Plaintiff’s separate statement of additional “undisputed facts” violates California Rules of Court, rule 3.1350(d)(3), which requires reference to evidence by exhibit, title, page, and line number.

In opposing the motion for summary judgment, it is Plaintiff’s obligation to point out to the Court the specific evidence that creates a triable issue of material fact. This is why the law requires a separate statement of disputed facts. “When the moving party’s statement is laid side by side with the opposing party's responsive separate statement, the court is directed to the specific evidence supporting any facts alleged to be disputed. Using this process, the court need only review evidence pertaining to disputed facts; there is no need for it to review evidence supporting facts which are agreed to be undisputed nor evidence not referenced in the moving party's separate statement or in the opposing party's responsive statement, at least insofar as the opposing party relies on facts which are claimed to be disputed.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 314.)

“That the fact [to create a triable issue] could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties. We will not place on the trial court the burden of conducting a search for facts which counsel failed to bring out, nor can we attribute a level of prescience to the trial court which counsel lacked.” (North Coast Business Park. v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31.)

Moreover, the Stabler declaration is largely conclusory and fails to identify a defect based on any specific evidence. Stabler says he reviewed documentary evidence but he does not appear to have personally inspected the Elevator in this case. (Stabler Decl., ¶ 6.) Stabler fails to identity the basis – that is, the document that he inspected – for his determination that there was a defect in the Elevator. In fact, Stabler fails to identify the defect and instead opines generally “[t]he devices/parts of the subject elevator that likely contributed to the misleveling incident include the Primary Velocity Transducer (PVT) which adjusts the elevator speed, and the Secondary Position Transducer (SPT) which monitors the leveling accuracy of each elevator 19 and measures the car position to within 8 mm (approximately 5/16 in.).” (Stabler Decl., ¶ 20.) Thus, the declaration of Stabler does not raise a triable issue of material fact in dispute.

            Plaintiff also submits the declaration of Paul Kayfetz. Like the Stabler declaration, Plaintiff again violates rule 3.1350(d)(3) by failing to cite to any specific portion of the Kayfetz declaration in support of its separate statement of facts. However, unlike the Stabler declaration, the Kayfetz declaration at least properly opines with adequate foundation that at the time of the Incident the approximate height of the elevator car threshold to the landing when Plaintiff’s foot made contact with the elevator car was approximately 1 3/16 inches and the doors remained open by approximately 1 1/16 inches. (Kayfetz Decl., ¶ 13.)

Even if the Court cannot rely on this uncited evidence in the Kayfetz declaration, the deposition of Plaintiff and Larry Isidro have been properly and specifically cited.[3] This evidence does support a finding that there is a triable issue of material fact with respect to whether the Elevator misleveled at the time of the Incident. (PSS 15.) Based on this disputed evidence, Plaintiff argues that there is a triable issue of material fact of whether the Elevator suffered from a defect under the consumer expectation test.

            In California, a product is defective in design if “the product fails to meet ordinary consumer expectations as to safety” or “the design is not as safe as it should be.” (Johnson v. U.S. Steel Corp. (2015) 240 Cal.App.4th 22, 32.) “The rationale of the consumer expectations test is that ‘[t]he purposes, behaviors, and dangers of certain products are commonly understood by those who ordinarily use them.’” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232.)

            In reply, Otis argues that an elevator is not the type of consumer product subject to the consumer product test. Without any legal citation, Otis argues “[t]he operation of an elevator is beyond the scope of the everyday passenger’s experience, and as such an elevator is not a product that is subject to consumer expectation analysis.” (Reply 2:1-3.)

            This is unpersuasive. “The inherent complexity of the product itself is not controlling on the issue of whether the consumer expectations test applies; a complex product ‘may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers.’” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232.)

For example, in Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, the plaintiff, a bus passenger, was thrown from her seat and injured during a sharp turn. She sued GM, the manufacturer of the bus, alleging that the vehicle was defectively designed because there was no “grab bar” within easy reach of her seat. (Id. at p. 116.) The plaintiff presented no expert testimony, but she submitted photographs of the interior of the bus, showing where safety bars and handles were located in relation to the seat she had occupied. (Id. at p. 126.)

On appeal after the grant of a nonsuit, our Supreme Court reversed, in relevant part concluding that the passenger had presented sufficient evidence for the case to go to the jury under the consumer expectation test. (Id. at pp. 126–127.) That is, it was enough for the plaintiff to show “the objective conditions of the product” so that the jurors could employ “[their] own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. [Fn. omitted.] Since public transportation is a matter of common experience, no expert testimony was required . . ..” (Campbell, supra, 32 Cal.3d at p. 126.)

As another example, in McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, the driver of a car was injured when its side air bag failed to deploy in a head-on collision. (Id. at p. 1116.) In the plaintiff's defective product liability claim against the manufacturer and seller of her vehicle, the trial court granted the defendants’ motion for summary judgment in part  based on the defendants’ argument that the consumer expectation test did not apply because the deployment of an air bag involves the consideration of sophisticated technology outside the experience of an ordinary consumer. (Id. at 1118.) Specifically, the defendants submitted expert testimony that the accident occurred at a speed and at a collision range outside that required for the air bag to deploy; in contrast, the plaintiff presented evidence only that “the accident was a ‘head-on’ collision, occurring within the ‘frontal collision range’ depicted in [the manufacturer]'s owner’s manual.” (Id. at 1124.) The appellate court reversed the grant of summary judgment, finding that an understanding of sophisticated technology was unnecessary. Instead, the appellate court held that the plaintiff had presented “sufficient evidence from which a jury could infer that the failure of an air bag to deploy under the facts and circumstances advanced by [the plaintiff] violates commonly held minimum safety assumptions within the every day [sic ] experience of ordinary consumers.” (Id. at p. 1125.)

            Similarly, entering an elevator is a common, everyday experience to which a jury could reach a “conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567 [italics in original].)

            Based on the foregoing, Plaintiff has met her burden to demonstrate a triable fact in dispute with respect to a defect under the consumer expectations test. Upon doing so, the Plaintiff is entitled to have the jury determine whether or not the product satisfied ordinary consumer expectations.

            Finally, in reply, Otis also argues for the first time that Plaintiff’s product liability cause of action fails because “Otis was not in the chain of distribution of the elevator, a fact fatal to this claim.” (Reply 1:8-10.) However, Otis did not make this argument in the moving papers, as noted by the Opposition. (Mot. 6:27-8:19; Opp. 7:4-6 [“Defendant Otis does not dispute that it designed, manufactured, or sold the subject elevator and its component part.”].) Nor does Otis submit any evidence in support. Thus, this argument fails.

            The motion for summary adjudication of the first cause of action for product liability is denied.

Second Cause of Action for Premises Liability:

            Defendant Otis argues Plaintiff cannot prevail on the premises liability claim because Plaintiff cannot show Otis owned, possessed or controlled the premises.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; see Civ. Code, 1714, subd. (a).) That is, those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156; Civ. Code, § 1714, subd. (a).) “In most instances, where there is no control over the premises, there is no duty to exercise reasonable care to prevent injury. (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711.)

Here, Otis submits evidence that the Elevator was owned and controlled by Defendant John Hancock Life Insurance Company, USA dba John Hancock Real Estate – not Defendant Otis. (DSS 4 [Biernat Decl., Ex. F [John Hancock’s Responses to Plaintiff’s Requests for Admissions, Set One, No. 1 and 3].)[4]

In opposition, Plaintiff argues Otis controlled the Elevator. (PSS 4.) However, the cited evidence – Stabler’s declaration and Deposition of Otis Mechanic James Clark – do not contain admissible evidence creating a triable issue of material fact. Plaintiff identifies no paragraph of the Stabler declaration that opines Otis controls the elevator – nor does Stabler, as the elevator expert, have the requisite personal knowledge to opine over the control of the Elevator.[5] Moreover, the cited portions of the deposition of Otis mechanic James Clark – pages 334 lines 11-20, and pages 337-338, lines 1-13 – are not attached to the declaration of Atticus Wegman.

Plaintiff also attempts to apply common carrier liability to Otis. However, this argument fails as a matter of law.

  “[A] common carrier [for reward] is any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit.” (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339.) While the entity that owns the Elevator might be a common carrier, Otis is not. Here Otis is merely a third party maintenance contractor; it does not own or operate the elevator at issue. (Pruenda v. Otis Elevator Co. (1992) 65 Wash.App. 481, 485-488 [“An elevator repair company is in a different position than an owner/operator of an elevator. The repair company contracts to maintain the elevators, but unless it places a full-time employee on guard at the building, it cannot anticipate when a given elevator might malfunction.”].) Under Plaintiff’s theory, an auto repair shop becomes a common carrier by making repairs on a public bus.

Rather, as an independent third-party elevator maintenance company, Otis is “under a duty … to use ordinary and reasonable care in the repair and inspection of the elevator.” (Dahms v. General Elevator Company (1932) 214 Cal.733, 742.)

As discussed above, the relevant evidence before this Court on this issue shows only a contractual relationship between Otis and admitted owner, John Hancock Life Insurance Company, for Otis to service, maintain and repair the Elevator.

“[T]he concept of control as developed in case law has been somewhat elastic....” (Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1588.) At a minimum, however, there must be some “ ‘dramatic assertion of a right normally associated with ownership or ... possession’ “ of the premises upon which the plaintiff was injured. (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 201, italics omitted; see Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1170 [“plaintiff has presented evidence suggesting that defendants treated a portion of [the property] as if they did own it”].) Plaintiff fails to demonstrate that the contract at issue here endows Otis with the rights of control normally associated with ownership or possession.

As such, Otis’s duty here is to use ordinary and reasonable care in the maintenance and service of the elevators. Otis has shifted its initial burden on the issue of “ownership, possession, and control” and Plaintiffs has failed to raise a triable issue material fact in dispute regarding Otis’s ownership, possession or control over the Elevator. Thus, summary adjudication of the second cause of action for premises liability is proper. (Sabetian v. Exxon Mobil Corporation (2020) 57 Cal.App.5th 1054, 1071 [“Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.”].)

Third Cause of Action for Negligence:

            In moving for summary adjudication of this cause of action, Otis argues that it did not breach its duty of care in the repair and inspection of the Elevator and was not on any notice of any defects or problems.

The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “ ‘While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question of law for the courts to determine. [Citation.]’ ” (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838.)

Otis first argues that no evidence demonstrates Otis acted negligently in a manner that caused the Elevator to supposedly malfunction. Otis submits evidence that during regular maintenance, its mechanics cleaned, examined and inspected the elevator equipment for ordinary wear and tear, and made necessary repairs and replaced worn parts as needed. (DSS 6.) In addition, during each visit to an elevator, the mechanic would ride the elevator from top to bottom, stopping at multiple floors. (DSS 6.) In doing so, the mechanic would check the overall condition of the elevator which includes observing the leveling of the elevator car and any other hazards. (DSS 6.) The mechanic would address any problems that arise. (DSS 6.)

Further, review of Otis’s Maintenance Records for the Elevator in the five years before and six months after the Incident show that Otis performed regular, routine and preventative maintenance on the Elevator, as well as service in response to reports made by Defendant John Hancock. (DSS 7.) Maintenance Records show four hours of general maintenance on the Elevator on February 13, 2020. (DSS 7.)

In opposition, Plaintiff argues – without citation to specific evidence – that Defendant Otis did not provide adequate maintenance per its own contract, which required at least 6 man hours be provided to each elevator each month. (PAF 69 [citing “See Declaration of Joseph Stabler”].) Even assuming Plaintiff had properly cited the Stabler declaration, nowhere in the Stabler declaration does it affirmatively identify the Elevator’s defect, demonstrate that Otis’s negligence caused or failed to correct said defect, and that this defect caused Plaintiff’s injury.  That is, because Stabler has failed to identify a defect, he cannot argue that Otis’s purported “minimal required maintenance” was either the cause of the defect or failed to remedy the defect.  Stabler’s declaration fails to establish causation between the maintenance and the defect that allegedly caused Plaintiff’s injury.

Rather, Stabler provides general testimony that the “computerized solid-state controller with a feature known as advanced door opening/pre-opening that allows the elevator doors to open before the elevator is level with the floor” “is known to have a tendency to allow misleveling of an elevator upon passenger entry.” (Stabler Decl., ¶ 11.) Stabler makes another vague statement that “[i]n terms of maintenance, improper maintenance is a well-known contributing cause to misleveling.” (Stabler Decl., ¶ 16.) “The devices/parts of the subject elevator that likely contributed to the misleveling incident include the Primary Velocity Transducer (PVT) which adjusts the elevator speed, and the Secondary Position Transducer (SPT) which monitors the leveling accuracy of each elevator and measures the car position to within 8 mm (approximately 5/16 in.).” (Stabler Decl., ¶ 20.) “[I]n accordance with OEC's On-Line History Reports for 2019 - 2020, Defendant OEC also failed to perform the following maintenance tasks: MC15A Cartop Examination & Maintenance, which is where the Secondary Position Transducer (SPT) is located.” (Stabler Decl., ¶ 21.) Stabler makes no conclusions as to what the defect was (such as whether the SPT was defective) to carry Plaintiff’s burden that Otis’s failure to properly maintain the Elevator resulted in the defect. The expert opinion is vague, conclusory, and speculative. 

Nor does Stabler’s declaration demonstrate that Otis’s purported failure to instruct and supervise its elevator personnel regarding the terms and conditions and elevator performance requirements, which includes adjusting and maintaining the elevator's stopping accuracy at all floors consistently within 0.25 inches of level regardless of load or direction of travel, as specified in the elevator maintenance agreement demonstrate that this caused the defect which led to Plaintiff’s injury. Moreover, that Otis did not disable/deactivate the advance door opening feature/pre opening on the Elevator before Plaintiff’s incident does not show a breach of duty of care – even if would have “more than likely” eliminated the aforementioned trip and fall hazard. (Stabler Decl., ¶ 20.)

In conclusion, Stabler’s declaration fails to connect these conclusions with any articulated breach of a standard of care that resulted in Plaintiff’s injury.

In opposition, Plaintiff also argues that Defendant Otis spent only 4 minutes examining and testing the elevator after Plaintiff’s Incident. This post-inspection action fails to demonstrate a failure of duty of due care that resulted in Plaintiff’s injury and is largely irrelevant, except as used by Otis to show that no defect was discovered after the Incident.

Lastly, Plaintiff argues that whether Defendant Otis adequately performed its duty of care or failed is a question of fact for the jury. While true, this conclusory statement on the state of the law does not relieve Plaintiff of its duty to present material facts in dispute in opposition to a motion for summary judgment. That is, the matter only goes to a jury where there are material facts in dispute.

On the negligence cause of action, Otis also argues that there is no evidence that there were any instances of any injuries at this Elevator, including trip-and-falls, before the Incident. (DSS Nos. 7-10.) In opposition, Plaintiff submits evidence that there was a similar event of misleveling in 2012. (PSS 44.)

It is true that with respect to a claim of negligence (as opposed to premises liability or product design defects), prior similar incidences are relevant for the purposes of foreseeability.  (Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1345 [“Evidence that there have been no prior claims tends to be more relevant in actions alleging negligence, because foreseeability of harm is a primary issue in such cases.”].)

Here, however, Plaintiff offered evidence of one instance of misleveling that occurred eight years ago, with no prior instances until the date of this alleged Incident. Given the large temporal gap in occurrences on a regularly used Elevator, this fact does not raise a triable issue of material fact as to the foreseeability of a defect with the Elevator.

Thus, the motion for summary adjudication of the negligence cause of action is granted. 

CONCLUSION

The motion for summary judgment is denied. The motion for summary adjudication of the second and third cause of action is granted. The motion as to the first cause of action is denied.