Judge: Helen Zukin, Case: 20STCV03161, Date: 2022-10-13 Tentative Ruling

Case Number: 20STCV03161    Hearing Date: October 13, 2022    Dept: 207

Background

This action is a personal injury case. On September 21, 2018, Plaintiff Steven Gonzalez (“Plaintiff”) was injured when a 2000-pound elevator hoist counterweight struck his body. Plaintiff did not die, but his right arm was crushed and nearly severed. As a result of this incident, Plaintiff filed this action against multiple defendants, alleging negligence and negligence per se.

Plaintiff was primarily employed by Russell Construction (“Russell”), who lent Plaintiff’s services to Defendant Del Amo Construction, Inc. (“Del Amo”) on the project. Del Amo contracted with Defendant Engel Holdings, Inc. dba Cabrillo Hoist (“Cabrillo”) to install the hoist which ultimately injured Plaintiff. Cabrillo now moves for summary judgment, or, alternatively, summary adjudication as to Plaintiff’s claims against it, Del Amo’s Cross-Complaint against it, and Plaintiff-in-Intervention Insurance Company of the West’s Complaint-in-intervention, arguing it did not owe a duty of care to Plaintiff. Plaintiff and Del Amo oppose the motion.

Objections to Evidence

Del Amo’s objections to the declaration of Greg Torres are OVERRULED. Del Amo’s objections to the declaration of Hector Melgar are OVERRULED. Del Amo’s objections to the declaration of John McCormack are OVERRULED.

Cabrillo’s objections to the declaration of Robert Cotton are OVERRULED with the exception of objections 1 and 7, which are SUSTAINED.

Summary Judgment Standard

Motions for summary judgment are governed by Code Civ. Proc. § 437c, which allows a party to “move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (C.C.P. § 437c(a)(1).) 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.) Code Civ. Proc. § 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.) 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.)

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. (C.C.P. § 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. (C.C.P. § 437c(p)(2); Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Summary Adjudication Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends there is no merit to the cause of action, defense, or claim for damages, or there is no duty owed. (See CCP §437c(f)(1).) “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.” (Ibid.) A party moving for summary adjudication bears the burden of persuasion that there are no triable issues of material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

In analyzing motions for summary adjudication, the court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

Analysis

In order to succeed on a claim for negligence, a plaintiff must show (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Cabrillo argues Plaintiff cannot establish the elements of negligence against it as Cabrillo did not owe a duty of care to Plaintiff as a matter of law. It is undisputed that Plaintiff was injured while performing maintenance on Cabrillo’s hoist. However, Cabrillo argues it did not employ Plaintiff and it’s scope of work under its contract with Del Amo was limited to providing and installing the hoist, and not operating, supervising, or maintaining the hoist once it was installed. Cabrillo points to language in its contract with Del Amo which states Del Amo, not Cabrillo, would “employ at its own expense competent personnel to operate and maintain the Equipment….” (Ex. A to Notice of Lodging.) Additionally, Cabrillo presents evidence showing it could have provided a qualified operator for the hoist, but Del Amo chose instead to provide its own personnel. (UMF No. 5.) Del Amo designated two of Russell’s laborers—Plaintiff and Joaquin Cavanzon (“Cavanzon”)—to maintain and operate the hoist instead. Plaintiff was injured when Cavanzon activated the hoist while Plaintiff was performing lubricating maintenance on it.

On such facts Cabrillo argues it did not owe a duty of care to Plaintiff and thus Plaintiff cannot succeed on his negligence claims against it. Cabrillo in essence argues its obligations under its contract with Del Amo were limited in scope to providing and installing the subject hoist and had no responsibility for its operation or maintenance, including the safety procedures utilized on site by Del Amo.

Plaintiff and Del Amo respond by arguing Cabrillo in fact went beyond merely providing and installing the hoist, and further undertook to train Plaintiff and Cavanzon on the operation of the hoist. They argue the training was deficient as Cabrillo did not mention any safety precautions, equipment, or rules which would have prevented the injury to Plaintiff. They do not argue Cabrillo was hired to perform such training, or that Cabrillo was contractually obligated to perform such training, rather they argue that having undertaken to train Plaintiff and Cavanzon, Cabrillo assumed a duty of care to Plaintiff in performing that training. This is generally referred to as a “negligent undertaking” theory of liability.

“In general, there is no duty to take affirmative action to assist or protect another. (Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763, 775.) “However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 558–559.) The negligent undertaking theory of liability subsumes the well-known elements of a negligence action, i.e., duty, breach of duty, proximate cause and damages. (Id. at 559.) The foundational requirements for a negligent undertaking claim are that the defendant undertook the tasks alleged to have been performed negligently and the undertaking was to render services to another that the defendant should recognize as necessary for the protection of third persons. (Id. at 559–560.)

In Scott v. C. R. Bard, Inc., the defendant was the manufacturer of polypropylene mesh kits used in surgical procedures. As part of its marketing program, the defendant voluntarily offered training to physicians using the device. The plaintiff's surgeon received this training before operating on the plaintiff. On such facts, the Court of Appeal held the defendant could be held liable on a theory of negligent undertaking: “‘The manufacturer of a prescription medical device has no duty to train a physician in using its medical device. However, if a manufacturer undertakes to train physicians and fails to exercise reasonable care in that undertaking, it may be held liable for harm caused to third parties as a result of its negligent undertaking.’” (Scott, supra, 231 Cal.App.4th at 774, italics added.)

Similarly, in Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, plaintiffs brought an action against an auto club for the death of their 16-year-old son. Plaintiffs’ son was a passenger in an automobile stranded on the shoulder of a freeway. The driver called defendant AAA for assistance, who dispatched a tow truck. The tow truck failed to locate the car, and a drunk driver ultimately struck the car, killing plaintiffs’ son. Defendant demurred, arguing it owed no duty of care to prevent the collision with the drunk driver. The Court of Appeal disagreed, concluding “on these facts we cannot say that respondent owed no duty of care to appellants’ son. The undertaking to send the tow truck clearly did affect his interest. Had they not expected respondent to send assistance, the boys may have made other arrangements. They could have called their parents, a friend or even CHP to be driven home or at least to a safer location. [Citation.] Appellants allege that the Auto Club failed to locate the stalled vehicle due to its negligence. If appellants can prove respondent's negligence, respondent will be held liable for its breach of duty.” (Id. at 575-576.)

In Will v. Southern Pacific Co. (1941) 18 Cal.2d 468, the Court of Appeal held a railroad company could be held liable on a theory of negligent undertaking for failing to maintain one of the devices used to warn the public of the train’s approach: “When a railroad has undertaken to warn travelers of the approach of its trains by means of a crossing device, such as an automatic signal, upon which the public is encouraged to rely, failure to use due care in the maintenance of this device may constitute negligence regardless of the fact that it may have given other warning of the train's approach.” (Id. at 473-474.)

Plaintiff’s operative First Amended Complaint alleges, in part, Cabrillo failed to provide proper training to Plaintiff on the safety precautions which could have prevented the accident. (FAC at ¶¶ 21, 22, 24.) It is undisputed that Cabrillo employee Steven Dooley (“Dooley”) visited the project site and instructed Plaintiff and Cavanzon on the operation and lubrication of the hoist. (UMF No. 11.) Del Amo refers to this event as “training” while Cabrillo characterizes it instead as a “customer service orientation.” There appears to be no dispute, however, as to the content of this instruction. Dooley instructed Plaintiff and Cavanzon on starting the generator, adjusting the generator, engaging switches for the first and second floors, engaging toggle switches inside the elevator equipment box, moving the cab of the hoist between floors, and operating the cab’s gates. (UMF No. 12; Del Amo AMF No. 8.) Dooley’s instruction also included lubricating the hoist as part of maintenance, and Dooley observed Plaintiff lubricating the hoist in the same position he was in at the time of the accident. (Del Amo AMF Nos. 9-11.) Dooley provided a maintenance manual for the hoist and went over the first 15 pages of the manual with Plaintiff. (Plaintiff AMF No. 31.) Dooley did not go over page 17 of the manual with Plaintiff, which contained safety advice and three safety rules for safely performing maintenance on the hoist. (Plaintiff AMF No. 32.) Dooley also did not instruct Plaintiff and Cavanzon on safety procedures or precautions with respect to the maintenance of the hoist. (Plaintiff AMF No. 26.)

Cabrillo argues these facts cannot show a negligent undertaking on its part. Cabrillo argues such an undertaking cannot be found here as its contractual scope of work is limited to providing and installing the hoist. However, this only shows Cabrillo did not have a contractual duty to train Plaintiff. An undertaking may be assumed “gratuitously or for consideration” by a defendant. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Accordingly, Cabrillo could still be deemed to have gratuitously undertaken to train Plaintiff on the operation of the hoist.

Cabrillo also tries to draw a distinction between affirmative malfeasance and nonfeasance, arguing that any alleged failure to provide safety training is nonfeasance for which it cannot be held liable absent a special relationship with Plaintiff. However, “the ‘negligent undertaking’ doctrine, like the special relationship doctrine, is an exception to the ‘no duty to aid’ rule.” (Conti v. Watchtower Bible & Tract Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1231 [citing Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 248–249.) Accordingly, the distinction between affirmative malfeasance and nonfeasance has no bearing on whether Cabrillo could be held liable on a theory of negligent undertaking.

“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor … undertook, gratuitously or for consideration, to render services to another … ; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons … ; (3) the actor failed to exercise reasonable care in the performance of its undertaking; (4) the failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) the harm was suffered because of the reliance of the other or the third persons upon the undertaking.” (Artiglio, supra, 18 Cal.4th at 613-614.) “Under this formulation, a duty of care exists when the first, second and fifth elements are established. The third element addresses the breach of that duty of care and the fourth element covers both causation and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.)

The Court finds triable issues of material fact exist as to the first and fifth elements above. If questions remain “about precisely what it was that the defendant undertook to do” such that “the record can support competing inferences [Citation], or if the facts are not yet sufficiently developed [Citation] ‘“an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits”’ [Citation] and summary judgment is precluded.” (Artiglio, supra, 18 Cal.4th at 615.) The Court finds the record here supports competing inferences as to Cabrillo’s undertaking. There is evidence before the Court that Cabrillo voluntarily undertook to instruct Plaintiff and Cavanzon on the operation and maintenance of the hoist, and that Del Amo relied on Cabrillo to provide training to Plaintiff and Cavanzon. (Del Amo ADF No. 6.) There is also competing evidence before the Court that Del Amo specifically assumed the responsibility for providing trained and qualified operators for the hoist rather than contracting with Cabrillo to have Cabrillo provide them. (UMF No. 5.) Such evidence supports competing inferences about whether and to what extent Cabrillo undertook to train Plaintiff, and if so, whether it could be found to have breached its duty by failing to instruct Plaintiff and Cavanzon on safety procedures.

Cabrillo also argues it cannot be held liable for negligent undertaking because any alleged failure to train Plaintiff and Cavanzon did not increase the danger posed to Plaintiff. Cabrillo cites to Bloomberg, discussed above, arguing the AAA’s failure to locate the stranded car increased the danger to plaintiffs’ son because as a result the car was left on the shoulder of the road where it could be struck by another car. The Court is not persuaded by this argument. A jury could conclude Cabrillo’s failure to provide safety training increased the likelihood the hoist would be operated in an unsafe manner, leading to injury. Moreover, this is only one of the three possible theories which can satisfy the fifth element for a claim of negligent undertaking set forth above. Ultimately, the Court need not decide whether Cabrillo’s alleged failure to provide safety instructions increased the danger to Plaintiff because the Court finds a triable issue of material fact remains as to whether “the harm was suffered because of the reliance of the other or the third persons upon the undertaking.” (Artiglio, supra, 18 Cal.4th at 614.) Del Amo has provided evidence showing it relied on Cabrillo to provide training to Plaintiff and Cavanzon (Del Amo ADF No. 6). It remains an open question as to whether such reliance was the proximate cause of Plaintiff’s injury.

Cabrillo argues the imposition of liability against it on the basis of the instruction provided to Plaintiff and Cavanzon would preclude it from offering any customer service to its client. Not so. Rather, if Cabrillo decides to offer additional services to its clients above and beyond its contractual obligations, it must not perform those services negligently. This is the same legal obligation which has always applied to Cabrillo.

Accordingly, the Court finds triable issues of material fact exist which preclude summary judgment in Cabrillo’s favor on Plaintiff’s claims. Cabrillo moved for summary judgment or adjudication of the claims raised against it by Del Amo and the Plaintiff-in-Intervention on the basis that those claims were dependent on Cabrillo being held liable for Plaintiff’s injury. Accordingly, the same triable issues of fact which preclude summary judgment on Plaintiff’s claims also preclude summary judgment on the claims raised by Del Amo and the Plaintiff-in-Intervention. Cabrillo’s motion is thus DENIED in its entirety.

Conclusion

Defendant Engel Holdings, Inc. dba Cabrillo Hoist’s motion for summary judgment, or, alternatively, summary adjudication is DENIED.