Judge: Gary Y. Tanaka, Case: 19STCV20315, Date: 2022-08-05 Tentative Ruling

Case Number: 19STCV20315    Hearing Date: August 5, 2022    Dept: B

PROCEEDINGS

Kyle Brown v. Beach House Design & Development, et al.

19STCV20315

1. A&D Plastering Company’s Motion for Summary Judgment   

    

   TENTATIVE RULING

    

               A&D Plastering Company’s (“A&D”) Motion for Summary Judgment is denied.

    

               Background

    

               Plaintiff filed his Complaint on June 11, 2019.  Plaintiff was employed by O’Rourke Construction (“O’Rourke”), a subcontractor hired by the general contractor Defendant Beach House Design & Development (“Beach House”) for a construction project.  On June 16, 2017, Plaintiff fell from a scaffold on the jobsite located at 1727 Monterey Boulevard, Hermosa Beach, California 90254.  Plaintiff alleged a sole cause of action for General Negligence. Cross-Complaints were also filed by Defendant Beach House and by another subcontractor on the project, Co-Defendant and moving party A&D Plastering, Inc. (“A&D”).

   
   

               Objections

    

               Plaintiff’s objections: Objections 1 to 4 are sustained.  Objection 5 is overruled.

    

               Defendant’s objections: Objections 1 to 16 are overruled.

    

               Motion for Summary Judgment

    

               The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (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.)

    

               “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  CCP § 437c(p)(2).  “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 the cause of action or a defense thereto.” CCP § 437c(p)(2).  “If the plaintiff cannot do so, summary judgment should be granted.”  Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

    

               “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

    

               “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, 159 Cal.App.4th at 467; CCP § 437c(c).)

    

               Defendant A&D moves for summary judgment as to Plaintiff’s Complaint. Defendant’s motion is based on the ground that Plaintiff cannot present evidence that A&D owed a duty to Plaintiff, that A&D breached any duty owed to Plaintiff, or that any alleged breach by A&D caused Plaintiff’s injuries.  The Court notes that Defendant’s separate statement is defective because it does not comply with Cal. Rules of Court, Rule 3.1350(d)(3) which requires that citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

    

               As to the sole cause of action for Negligence, Plaintiff must establish the following elements: “the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.”  McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671. 

   
   

               The Court finds that Defendant has met its initial burden of showing that Plaintiff’s cause of action lacks merit by showing that essential elements of the cause of action (breach and causation) cannot be established.  However, Plaintiff has met his burden to show that a triable issue of one or more material facts exists as to the cause of action.  CCP § 437c(p)(2).

    

               First, the Court notes that Defendant did not meet its initial burden to establish that it owed no duty to Plaintiff.  Defendant owed a duty of care to Plaintiff.  Generally, “[t]he independent contractor[] [owes] a general duty imposed by law to use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work. ... The cases show, moreover, that the duty of care is owed to all those whom the contractor may reasonably expect to be affected by his work, whatever the capacity in which they come, whether as invitees or licensees or as other contractors.”  McCall v. Otis Elevator Co. (1963) 219 Cal.App.2d 22, 30 (internal citations and quotations omitted).

    

               In addition to a general duty of due care, Defendant owed a duty of care pursuant to its contract.  Section 8.2 of the Subcontractor Agreement between Beach House and A&D required that A&D conduct inspections to ensure safe working conditions and to be responsible for providing a safe workplace for its employees and other sub-contractor employees.  (Plaintiff’s Separate Statement of Additional Material Facts and Supporting Evidence (“SSAMF”) 124.)  The contract places the scaffolding inspection duty upon A&D.  (SSAMF 124, 140.)

    

               Plaintiff has submitted competent evidence to show the existence of a triable issue of material fact as to Defendant’s breach of the duty of care. “[A] plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and that, [. . .] evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.”  Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1210 (internal citations and quotations omitted).

    

               Plaintiff provides evidence to show that scaffolding on a construction site may change daily depending on the work required.  (SSAMF 135, 136.)  Debris can also accumulate which can cause hazards.  (SSAMF 137.)  Thus, Plaintiff submits evidence that scaffolding should be inspected daily.  (SSAMF 138.)  Plaintiff provides evidence that the reasonable scaffolding subcontractor would inspect the scaffold at the beginning of each workday. (SSAMF 142.)

    

               Plaintiff presented evidence that defects existed with the scaffolding including missing wire ties holding the scaffolding rig, missing floor planks, missing crossbars, holes in the tarp, debris on surfaces, and missing mid-rails.  (SSAMF 67-69, 92, 101, 152). Plaintiff submitted evidence that no other sub-contractor employees used the scaffolding from the closing of the job site on June 15, 2017, to the time of Plaintiff’s fall. (SSAMF  93-96). Plaintiff submitted evidence that O’Rourke Construction did not alter the scaffolding.  (SSAMF 44, 45, 58, 110, 118.)  Thus, as noted above, Plaintiff submitted evidence that the scaffold was, indeed, defective.  (SSAMF 67-69, 92, 101, 152.)

    

               This evidence shows the existence of a triable issue of material fact on the element of breach because Plaintiff’s evidence provides an inference that no one else other than an employee of O’Rourke was on the scaffold on the incident date, and that no others had altered the scaffold.  Defendant’s mere assertion that Plaintiff cannot show that the scaffold was altered, by some other party other than the Defendant, in some manner, is not dispositive.  Plaintiff’s evidence provides an inference that the scaffold was not altered by any other party other than moving Defendant, and Defendant has not provided definitive evidence to show that, in fact, it was altered by another party. A trier of fact could reasonably find that the defects existed a significant period of time prior to the fall which could have been detected by A&D during a reasonable inspection.  According to the evidence submitted by Plaintiff, a reasonably diligent daily inspection of the scaffolding would have revealed the existence of the defects of the scaffold.  (SSAMF 143.)

    

               Finally, Plaintiff presented evidence to show the existence of a triable issue of material fact as to the element of causation. “[C]causation in fact is ultimately a matter of probability and common sense: [A plaintiff] is not required to eliminate entirely all possibility that the defendant's conduct was not a cause.  It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not.  The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise.  If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case.” Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253.

    

               Plaintiff submits competent evidence to show the existence of a reasonable inference that Defendant’s breach was the cause of Plaintiff’s injuries.  The numerous defects of the scaffold were outlined above in the analysis to the element of breach.  Plaintiff submitted evidence that the scaffold would rock and sway because of the missing ties.  (SSAMF 153.)  After a post-fall inspection, the scaffold was determined to be unsafe. (SSAMF 69, 70.)  Witness Michael Farnthorpe purportedly stated to an OSHA investigator, Matthew Zylowski, that he and Plaintiff were on the scaffold installing windows on the upper level of the residence, and that Plaintiff stepped backward against the scaffold, which was missing a mid-rail, and fell approximately 20 feet.  (Defendant’s Separate Statement of Facts 35.)  Farnthorpe later denied making this statement, but the denial simply shows the existence of a triable issue of fact and an issue of credibility.  Plaintiff told Matthew Zylowski that he had stepped backward against the scaffolding, which was missing a rail, and fell.  (Defendant’s Separate Statement of Facts 40.)  Beach House’s Jeff Strnad admitted that Plaintiff could have fallen off the scaffold and that it was not in a safe condition. (SSAMF 102-103.)  OSHA Investigator Zylowski concluded that Plaintiff fell from the second story of the scaffold.  (SSAMF 129.)  All these facts could support an inference that the fall and injuries were caused by a fall from the scaffold and from defects of the scaffold.  The fact that Plaintiff may have admitted that he has no memory of the incident is not dispositive as other evidence can support an inference to satisfy the element of causation.

    

               Therefore, Defendant’s Motion for Summary Judgment is denied.

              

               Plaintiff is ordered to give notice of this ruling.