Judge James L. Crandall, Case 19-1076981 2022-08-18 Tentative Ruling

Judge: James L. Crandall, Case: 19-1076981, Date: 2022-08-18 Tentative Ruling

1. Motion for Summary Judgment and/or Adjudication

2. Motion for Summary Judgment and/or Adjudication

1.Defendant Schindler Elevator Corporation moves for summary judgment on the complaint of plaintiff Michael Joanou.

Procedural Issues Re: Alternative Motion for Summary Adjudication

In the alternative to summary judgment, defendant Schindler purports to move for summary adjudication.

However, where “summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Code Civ. Proc. § 437c(h); see also CRC 3.1350(b).

Here, the notice of motion indicates that Schindler is seeking summary adjudication and then sets four multi-sentenced grounds addressing purported deficiencies in the causes of action without actually calling these grounds “issues.”

The first such ground or issue addresses the second cause of action, the second ground or issue addresses the third and fourth causes of action, the third ground or issue addresses the second and fourth causes of action, and the fourth issue addresses the fifth cause of action.

These grounds or issues are not repeated verbatim in the separate statement as required by CRC 3.1350(b). Rather, the separate statement sets forth four issues that relate to the second through fifth causes of action individually and do not provide the specific grounds set forth in the notice of motion.

Because the issues set forth in the notice of motion and the separate statement are not identical and correspond to the exact same issues and causes of action, summary adjudication has not been properly requested and cannot be given in the alternative if summary judgment is denied.

Procedural Issues Re: Evidentiary Objections

In opposing the motion, plaintiff submitted evidentiary objections to both this motion and the motion for summary judgment by the co-defendant with his opposition to the motion. (ROA 163.)

Subdivision (b) of CRC 3.1354 provides that written objections to evidence submitted in support or opposition to a motion for summary judgment or adjudication must be separately numbered and do all of the following:

Identify the name of the document in which the specific material objected to is located

State the exhibit, title, page, and line number of the material objected to

Quote or set forth the objectionable statement or material

State the grounds for each objection to that statement or material

Plaintiff’s objections do not quote or set forth the objectionable statements or materials. As a result, they do not comply with the required format and are not considered.

Merits

The complaint contains five causes of action. Only the second through fifth causes of action are asserted against moving defendant Schindler, who was named in the place of Doe 11.

For purposes of motions for summary judgment and adjudication, a defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2).

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue on one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc. § 437c(p)(2).

Second Cause of Action for Negligent Servicing, Inspection and Repair

In the introductory portion of the complaint, plaintiff alleges that, on August 23, 2017, he was riding in an elevator at the back of the Apple store at the Brea Mall “when the vertical, bi-parting doors of [the elevator] closed on his left hand, crushing it” and he sustained several injuries, including multiple fractures. (Complaint, ¶¶ 4, 7, 10, and 11.)

In the second cause of action, plaintiff alleges that defendant Schindler “conducted inspections, reconditioning, rebuilding, modifying, servicing, repair, retrofitting, testing, maintenance, and consultation with regard to the operations and safety of the [subject elevator]” (complaint, ¶ 23) and that it was negligent with respect to these tasks (complaint, ¶ 24).

He alleges that Schindler had a contract with the owner or lessee of the elevator by which Schindler “retained or exercised control” over the maintenance service, inspection, repair, testing and modification of the elevator and was required to make frequent periodic inspections and keep the elevator in good and safe repair. (Complaint, ¶ 25.)

He alleges that the negligence of Schindler in the inspections, reconditioning, rebuilding, modifying, servicing, repair, retrofitting, testing, maintenance, and consultations with regard to the operation and safety of the elevator was the direct and proximate cause of the injuries and damages he suffered. (Complaint, ¶ 28.)

Schindler contends that this cause of action lacks merit because it did not own or manufacture the elevator in which plaintiff was injured. It contends that it only had a contractual duty to provide periodic maintenance services for the owner of the elevator and to perform repairs as needed. It contends that it did not have notice of any problems with the elevator doors and that it had performed preventative maintenance on the elevator just a couple of weeks before the incident.

Schindler additionally contends that there is no evidence that the elevator doors failed to operate properly or that the doors closed or fell without the strap being pulled.

In support of its arguments, Schindler submits evidence to show the following facts:

That it did not manufacture the elevator and only contracted to make and provide as-needed repairs and maintenance for it (facts 5 and 6)

That there were no reports regarding any malfunctions of the elevator doors before the incident or reports of needed repairs on them after the incident (fact 7)

That the elevator was inspected and permitted by the State of California on April 5, 2017 and the report did not mention any issues or concerns with the elevator doors (fact 8)

That Schindler performed preventative maintenance to the elevator on August 9, 2017 and the elevator did not show any defects or signs of malfunctioning parts, including any on the doors (fact 9.)

That Schindler did not have actual or constructive knowledge of any defective conditions regarding the elevator before August 23, 2017 (fact 12)

That plaintiff testified at deposition that he is familiar with the operation of freight elevators like the one that caused his injuries (fact 13)

That plaintiff testified at deposition that when he pulled the elevator’s strap to close the doors, the lower door contacted his left hand as it was moving upward and it was crushed when the upper door came down (fact 16)

That percipient witness David Castellon declares that plaintiff’s hand was caught between the upper and lower doors of the elevator when plaintiff pulled the top door down too abruptly (fact 18)

That David Castellon declares that he used the elevator every day for more than four months and never had an issue operating the elevator (fact 19)

That there is no evidence that the elevator was defective or dangerous at the time of the incident. (fact 22)

While these facts support Schindler’s position that it was not negligent with respect to the maintenance and repair of the elevator, they do not necessarily show that plaintiff cannot prove such negligence as required by Code Civ. Proc. § 437c(p)(2).

Furthermore, in his responding separate statement, plaintiff disputes Schindler’s facts 7, 9, 10, 12, and 22, using paragraphs 4-10 of the declaration of his expert, Philip Rosescu as evidentiary support. Mr. Rosescu attests that he is a licensed civil engineer and has extensive technical and practical experience in conducting safety investigations and analysis of premises.

Mr. Rosescu attests that he has reviewed the depositions of plaintiff and Schindler’s PMQ and service technician, the declaration of Mr. Castellon and the photographs submitted with the moving papers, and the service records for the elevator. He also attests that he inspected the elevator on August 17, 2021.

He attests that, based on his review of the materials, his inspection, and education and experience, it is his expert opinion that the elevator was in a defective condition at the time of the incident in at least two respects, i.e., that the strap that closed the upper elevator door was too short and knotted and that the door lacked bumper guards.

He also attests that he believes that these defects caused or contributed to plaintiff’s injuries because they permitted the elevator door to close on plaintiff’s hand.

Moving defendant Schindler submitted a separate statement with its reply that responds to additional facts submitted by plaintiff with the opposition. (ROA 176.) Significantly, this document indicates that Schindler disputes some of the additional facts submitted by plaintiff, which only confirms the existence of triable issues of material fact.

The existence of triable issues of material fact preclude judgment in Schindler’s favor on the second cause of action – as well as summary judgment on the entire complaint. Not only is summary adjudication of the various causes of action unavailable because of procedural issues previously discussed, but a review of the separate statement shows that Schindler relies on the same facts in challenging all causes of action.

RULING: The motion of defendant Schindler Elevator Corporation for summary judgment on the complaint of plaintiff Michael Joanou is denied, as is the alternative motion for summary adjudication.

Triable issues of material fact exist as to whether the elevator was in a defective condition at the time of the incident, as shown by plaintiff’s evidence submitted to dispute defendant’s facts 7, 9, 10, 12, and 22 as well as by the separate statement submitted by the moving party with its reply.

Evidentiary Objections

Plaintiff’s evidentiary objections have not been considered by the Court because they do not comply with CRC 3.1350.

Defendant’s evidentiary objections 1 and 7 are sustained; the rest are overruled.

2.MSJ of Defendant Simon Group.Inc.

Defendants Simon Property Group, Inc., Simon Property Group, LP, and The Retail Property Trust move for summary judgment on the complaint of plaintiff Michael Joanou.

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. Code Civ. Proc. § 437c(p)(2).

Only the first cause of action for negligence is asserted against the two Simon defendants and defendant The Retail Property Trust, who was named in the place and stead of the fictitiously named Doe 1.

In this cause of action, plaintiff alleges that three moving defendants “owned, leased, rented, franchised, occupied, controlled, managed, and operated” the Brea mall, where the freight elevator that injured plaintiff was located. (Complaint, ¶ 13.)

He alleges that these defendants “were under a duty to exercise reasonable care for the safety of Plaintiff in owning, leasing, renting, franchising, occupying, controlling, managing, maintaining, operating, improving, inspecting, securing, supervising and/or otherwise providing safe conditions at [the Brea mall] and to protect all persons on said premises, including Plaintiff.” (Complaint, ¶ 14.)

He further alleges in the first cause of action that the three moving defendants “were common carriers of people for reward, as used in California Civil Code Section 2100” and “were required to use the utmost care and diligence for the safe carriage of persons; to provide everything necessary for that purpose; and to exercise a reasonable degree of skill, pursuant to California Civil Code Section 2100.” (Complaint, ¶ 15.) He further alleges that these defendants “were negligent in their control, management, inspection, repair, maintenance, and operation of [the Brea mall]” and that they “also failed to use the required duty of utmost care toward Plaintiff, in violation of California Civil Code Section 2100.” (Complaint, ¶ 16.)

He alleges that in the first cause of action that the negligence of the three moving defendants included “failing to provide the necessary safeguards, safety switches, safety devices, warning signs, and operational instructions … thereby creating a dangerous, defective and unsafe condition so as to directly and proximately cause Plaintiff to suffer severe and permanent injuries to his person.”

In moving for summary judgment, the moving defendants contend that the two Simon defendants do not owe plaintiff any duty of care because they do not own the mall.

They also contend that defendant The Retail Property was not a common carrier but even if it were, it did not breach any duty because there was nothing wrong with the elevator doors.

They contend that the elevator doors have been in good working condition, operating as designed in accordance with industry standards, regularly maintained and not defective.

The separate statement submitted by the three moving defendants (ROA 120) is completely devoid of any facts addressing the ownership of the Brea mall. Thus, moving defendants fail to show that the two Simon defendants do not own the mall or otherwise had no connection to it.

Additionally, while the moving defendants have submitted facts relating to the incident, none of the facts affirmatively disprove any of plaintiff’s allegations or show that he cannot establish them. Slightly rephrased, the 15 facts submitted by the moving defendants are as follows:

On August 23, 2017, plaintiff went to the Brea mall as a superintendent for Shawmut Design and Construction to assist with repairs at the Apple Store (fact 1)

Pplaintiff had never been to the mall before(fact 2)

After plaintiff had spent some time in the Apple Store, he and three subcontractors exited that store through the back door and entered the freight elevator (fact 3)

Although plaintiff had used freight elevators in the past, he had never used this particular freight elevator before (fact 4)

The freight elevator used by plaintiff has vertical, bi-parting doors that open up and down (as opposed to left and right) (fact 5)

Plaintiff had previously only used freight elevators with similar doors that opened and closed in the same way, i.e., up and down (fact 6)

The up and down doors on the elevator are closed by manually pulling down on a strap (fact 7)

Plaintiff pulled down on the strap to close the elevator doors but caught his left hand in between the doors in the elevator as they were closing (fact 8)

Plaintiff reported the incident to a security officer at the mall and was taken to the hospital (facts 9 and 10)

On June 13, 2019, plaintiff filed the instant complaint against the two Simon defendants and later added defendant The Retail Property Trust and co-defendant Schindler Elevator Corporation (facts 11, 12, and 13)

Only the first cause of action is asserted against the three moving defendants and the rest are asserted against the co-defendant (facts 14 and 15)

At most, these facts show that plaintiff injured his hand when the elevator doors closed on it.

Moving defendants have not met their initial burden on the motion and it does not shift to the plaintiff to show that there is a triable issue of material fact.

RULING: The motion of defendants Simon Property Group, Inc., Simon Property Group, LP, and The Retail Property Trust for summary judgment on the complaint of plaintiff Michael Joanou is Denied.

Plaintiff’s objections to the evidence submitted by the moving defendants have not been considered by the Court because they are not formatted as required by CRC 3.1354(b).

Defendants’ objections to the evidence submitted by plaintiff have not been considered by the Court because they are not material.

Future hearing dates

10/21/22 – MSC

10/31/22 – Jury Trial