Judge Elaine W. Mandel, Case Number: 23SMCV01635, Date: 2025-02-26 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV01635, Date: 2025-02-26 Tentative Ruling

Case Number: 23SMCV01635 Hearing Date: February 26, 2025 Dept: P

Tentative Ruling

Marhefky v. Plumbing Center, Inc., Case no. 23SMCV01635

Hearing date February 26, 2025

Defendant’s Motion for Summary Judgment

Plaintiff Marhefky was injured when he fell after striking an uneven section of public roadway while on his skateboard. Plaintiff alleges defendants Plumbing Center and Value Construction were responsible for excavating and repaving the pavement. Value moves for summary judgment.

Plaintiff’s opposition was due 2/6/25, but it was filed and served 2/12/25. Value argues this left only two days to reply. Value prepared a substantive reply, so the court will consider the opposition but will inquire whether defendant needed additional time to reply. The court also reminds plaintiff of the statutory requirements for filing oppositions.

Plaintiff requests judicial notice of (1) the Cal. Secretary of State’s business search for Value Construction, Inc. and OSA, LLC, and (2) the Google Maps image of the incident location, 1061 Palms Blvd., Los Angeles, CA 90291. The court may take judicial notice of the contents of a website. Ampex Corp. v. Carle (2005) 128 Cal.App.4th 1569, 1573, 1574. Notice is appropriate per Cal. Evid. Code §451. GRANTED.

Value offers 2 evidentiary objections to the declarations of Phillip L. Rosescu, P.E., M.S. and counsel Bloom. Objections 1-2 OVERRULED.

Pursuant to Cal. Code Civ. Proc. §437c(a)(1) a party may move for summary judgment if it is contended the action has no merit. Pursuant to §437c(f)(1) a court may summarily adjudicate causes of action. A motion for summary judgment shall be granted if there is no triable issue of material fact, and the record establishes as a matter of law, plaintiff cannot prevail on a cause of action. Cal. Code Civ. Proc. §437c(c). A defendant has met its burden of showing a cause of action has no merit it shows one or more elements of the cause of action cannot be established, or there is a complete defense to the cause of action. Once defendant met its burden, the burden shifts to plaintiff to show a triable issue of material fact exists as to the cause of action or a defense thereto. Cal. Code Civ. Proc. §437c(p)(2).

Plaintiff’s negligence and premises liability claims both require him to establish causation. See CACI 400, 1000. Value argues plaintiff cannot establish causation because Value did not own, lease or control the area where plaintiff fell. SSMF 3, 6. Value argues Plumbing Center was the only entity involved in excavation and repaving. SSMF 1-2. Value asserts Plumbing Center excavated the street at issue and hired third-party “Billy” to finish repaving the street. SSMF 2-5.

Value argues its conduct was not a causal factor because there was no conduct by Value. “If the accident would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.” Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 370. This is sufficient to shift the burden to plaintiff to establish a triable issue of fact.

Plaintiff argues Value subcontracted with Plumbing Center, so Value is responsible for Plumbing Center’s alleged failure to follow safety standards. SSMF 1-2. Plaintiff offers the declaration of expert engineer Rosescu, who states Plumbing Center was negligent in installing uneven metal bevels, intended to allow safe travel over the pavement, which resulted in plaintiff’s fall. SSAMF 2-6.

Plaintiff argues Value’s owner Amit failed to ensure reasonable safety standards were followed. Plaintiff asserts Amit was present at the job site and acknowledged safety procedures were not properly followed. SSAMF 9, 10. Plaintiff argues Value is therefore liable for Plumbing Center’s negligence, creating a triable issue of fact as to causation.

Value argues it reasonably relied on Plumbing Center and exercised no control over the area where plaintiff fell. SSMF 1. “Even when work performed by an independent contractor poses a special or peculiar risk of harm, the person who hired the contractor will not be liable for injury to others if the injury results from the contractor’s ‘collateral’ or ‘casual’ negligence.” Privette v. Superior Court (1993) 5 Cal.4th 689, 697. “An independent contractor’s negligence is collateral… when the negligence involves an ‘operative detail of the work, as distinguished from the general plan or method to be followed.’” Id.

Per plaintiff’s separate statement of additional material facts, the cause of plaintiff's fall was an uneven metal bevel installed by Plumbing Center. SSAMF 2-6. Value argues the use and installation of the bevels is an operative detail per Privette, supra. Whether the bevel constitutes an operative detail, and subsequently whether Value is vicariously liable plaintiff’s fall, is a triable issue of fact. DENIED.