Judge: Daniel M. Crowley, Case: 192TCV29096, Date: 2023-02-08 Tentative Ruling

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Case Number: 192TCV29096    Hearing Date: February 8, 2023    Dept: 28

Defendant Superior Electrical, Mechanical & Plumbing, Inc.’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On August 19, 2019, Plaintiffs Benita Valencia (“Valencia”) and John Carper (“Carper”) filed this action against Defendants The Kroger Company, Inc. (“Kroger”), Food 4 Less of California, Inc. (“F4L”) and John Doe (“Doe”) for premises liability, negligence and loss of consortium. Plaintiff later amended the complaint to include Superior Electrical, Mechanical & Plumbing, Inc. (“SEMP”).

On November 21, 2019, F4L filed an answer. On January 12, 2022, F4L filed a Cross-Complaint against Cross-Defendant SEMP for equitable indemnity, breach of contract, express indemnity, contribution and apportionment, and declaratory relief. On January 13, 2022, F4L filed the FACC. On February 1, 2022, SEMP filed an answer.

On February 1, 2022, Doe filed an answer.

On July 5, 2022, SEMP filed a Motion for Summary Judgment to be heard on December 27, 2022. The Court continued the hearing on the motion to February 8, 2023. Plaintiffs filed a joinder to F4L’s opposition on December 8, 2022. On December 13, 2022, F4L filed an opposition. On January 25, 2023, F4L filed an amended opposition.

Trial is currently scheduled for April 10, 2023.

PARTY’S REQUESTS

SEMP requests the Court grant summary judgment on both the complaint and cross-complaint on the basis that there are not triable issues of material facts.

Plaintiffs request the Court either grant or deny summary judgment on the basis of whether the Court finds SEMP owed a duty to F4L.

F4l requests the Court deny the motion.

OBJECTIONS

SEMP’s Objections:

Sustained: 1 – 5, 11-12

Overruled: 6-10, 13, 14, 15, 16-17

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

Whether a commercial landlord had possession and control over commercial property to subject the landlord to liability is a question of law for the court to decide. (Kentucky Fried Chicken of Calif., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “A landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control.” (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604.) “[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.) This bright line rule holds a landlord liable to third parties in a premises liability action only if: (1) the landlord has actual knowledge of the hazard; and (2) the right and ability to remedy it. (Id.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

According to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, when determining if a risk if trivial, courts look to a multitude of factors beyond just depth or height of a sidewalk fault. For example, courts may look towards physical characteristics (such as exposed rebar or broken pieces), visibility, and history (such as whether anyone else has been injured). 

A customer injured by a dangerous condition on a premises owners' property can only recover damages against the owner of a premises if the owner was somehow negligent. (Louie v. Hagstrom's Food Stores, Inc. (1947) 81 Cal.App.2d 601.) A premises owner's negligence may be proven by showing that the owner did not “exercise reasonable care to keep the premises reasonably safe for patrons” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035), either because (1) the owner itself created a dangerous condition on the premises (Henderson v. Progressive Optical System (1943) 57 Cal.App.2d 180, 184), or (2) someone else created a dangerous condition, and the owner acted unreasonably by not remedying that condition or warning its customers about it (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829) “Absent any evidence that there was a … dangerous condition created by or known to [defendant], [plaintiffs] cannot sustain their burden of proof” so as to defeat a defendant’s motion for summary judgment. (Peralta v. The Vons Companies, Inc., (2018) 24 Cal.App.5th 1030, 1036.) A store owner must have actual or constructive notice of the condition to be negligent; it cannot have merely existed. (Id.)

DISCUSSION

Plaintiff alleges that, on August 28, 2017, she slipped and fell on a liquid substance on the floor near the floral area that was leaking out of the bottom of the frozen food refrigerator. (UMF 1-4.) SEMP states that from July 1, 2017, to August 28, 2017, the only EVAC repair performed by SEMP on the subject premises occurred on July 24, 2017.

Plaintiff’s Complaint

In order for a party to be found liable for premises liability, a party must have an ownership, possessory or controlling interest in the subject premises. SEMP did not own, control or possess the subject premises. (UMF 5-6.) SEMP merely provided repair services at the subject location subject to an agreement between F4L and SEMP. (UMF 7-8.) During August 2017, SEMP provided services on a single day—August 9, 2017—repairing a toilet and a sink. (SEMP 11-14.) The evidence displays that SEMP was not in control of the subject property or even the alleged refrigerator on this particular day, nor did SEMP have an agreement requiring daily monitoring for disrepair. Based on this evidence, Plaintiff cannot prove SEMP is liable for premises liability.

Plaintiff also alleges that SEMP is liable for negligence; negligence requires a duty, breach of duty, causation and damages. Here, the Court finds that the evidence does not support a finding of breach of duty. SEMP’s contract to provide repairs to F4L may have provided potential liability to third parties, however, there is no indication that SEMP breached any duty to Plaintiff. SEMP’s contract did not require SEMP to provide ongoing maintenance or inspections—rather SEMP sent out employees after receiving request from F4L. SEMP’s last request regarding the EVAC system was completed on July 24, 2017. (UMF 17.) During this visit, SEMP fixed the issue with an unrelated meat display case and confirmed the EVAC system for the entire premises was working properly. (UMF 16.) F4L did not contact SEMP indicating there were any new or ongoing issues that would have required SEMP’s involvement. (UMF 18.) There are no facts to support that SEMP caused the subject condition, nor that SEMP failed in any duty to repair the subject condition. SEMP’s job was to make repairs and inspections as requested—without a request, SEMP did not breach any such duty.

As SEMP has shown they are liable for neither negligence nor premises liability, SEMP cannot be liable for loss of consortium. There must be an underlying cause of action to give rise to an action for loss of consortium. SEMP has met its burden as to summary judgment on the complaint; the burden shifts to Plaintiffs.

Plaintiffs state that they will abide by the Court ruling as to SEMP’s duty to F4L, as any potential liability to Plaintiffs stems from that duty.

F4L’s Cross-Complaint

F4L and SEMP’s subject agreement is governed by a Master Services Agreement, which states that SEMP will indemnify F4L arising out of: 1) SEMP’s breach of the MSA, 2) any claim for damages cause by or resulting from the willful or negligent acts of omissions of SEMP’s personnel or 3) any claim by any third party regarding or cause by the services. (UMF 8-9). SEMP argues that as SEMP’s personnel did not cause the injury via willful or negligent acts, SEMP did not have to indemnify F4L. SEMP’s argument as to Plaintiff’s complaint supports this finding.

F4L’s Opposition

F4L argues that SEMP breached its duty, as it provided inadequate repairs, resulting in the subject water leaks that cause Plaintiff’s injury. F4L cites to the fact that SEMP provided 77 repairs to the EVAC system over a 3 year time period and that the entire EVAC system needed to be replaced. F4L alleges that SEMP knew that the EVAC was in need of replacement but failed to alert F4L, breaching the subject service agreement and the duty of care to Plaintiffs. (FUMF 12-13.)

In reviewing F4L’s separate statement, the Court does not find evidence offered in support of this proposition. F4L relies upon the Declaration of Daniel Crump and work orders from 2015-2017. Daniel Crump is the maintenance manager for facility engineering for F4L; his job includes management of third party vendors and store maintenance for Los Angeles area. His job includes reviewing, knowing of, and approving the responsibilities of F4L third party vendors. He states “77 work orders in a 3-year period to service and repair the same issue of water leaking from the EVAC at the premises evidence inadequate repairs and preventative maintenance by the vendor, Superior Electrical Mechanical and Plumbing, Inc.,” but provides no basis for this claim. (Declaration of Daniel Crump ¶ 10.) This amount was later amended to 83 in the amended opposition. He offers no experience, education or explanation as to why 83 work orders in 3 years is indicative of inadequate repairs. Crump does not attest he is familiar with EVAC systems, or how often they require repairs. There is no context provided for this number for it to have any probative value. Additionally, Crump further opines that SEMP failed to advise F4L with adequate information so that F4L could understand the extent of the issues. (Crump Decl. ¶ 12.) Again, there is no foundation for this declaration—merely a statement. Finally, Crump notes that the entire EVAC system was replaced in 2020, stating that SEMP never opined on the need to do so. (Crump Decl. ¶ 20.) However, again, there is no context provided—the EVAC system was replaced three years after this incident. A lay person cannot meaningfully opine that a complicated mechanical system was in need of total replacement 3 years prior because it was replaced eventually. Crump provided no explanation as to why it was replaced, nor did he provide any expert testimony as to whether it should have been replaced.

Overall, the Court finds that F4L has not provided adequate evidence to oppose the motion for summary judgment. Crump’s declaration does not establish him as an expert nor does it provide proper foundation for any of the statements utilized by F4L in its opposition. The crucial statements in Crump’s declaration are all subject to objection due to said lack of foundation. There is no evidence that the EVAC system was in need of more intense repair or replacement; without said evidence, the Court cannot find there is any dispute of material fact.

F4L also argues that SEMP breached a duty in failing to provide notes explaining the nature and extent of the service, maintenance and repair performed on the EVAC, which made it difficult to apprize the nature and extent of issues relating to the EVAC equipment. (PUMF 15.) SEMP notes that every single service work order verification form is signed by the F4L store manager, who is given the ability to read the form, evaluate the work done and determine if the job was performed as requested. SEMP then sends an invoice detailing the work done. SEMP provided evidence of the notes provided, which included a filled-out section labeled “technician comments / recommendations.” (Ex. M and N.) Exhibit M, dated March 2015, even clearly states “recommend getting system replaced,” as to the EVAC system. SEMP complied with their duty and even provided notice that there was a recommendation the EVAC system be replaced. F4L was put on notice as to the issues but chose not to take corrective action.

The Court finds there is no dispute as to material evidence. The Court grants the motion.

CONCLUSION

Defendant Superior Electrical, Mechanical & Plumbing, Inc.’s Motion for Summary Judgment is GRANTED. SEMP is granted summary judgment as to both the complaint and the cross-complaint.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.