Judge John J. Kralik, Case Number: 21STCV09678, Date: 2023-09-29 Tentative Ruling

Plaintiff Daniel Suarez (“Plaintiff”) alleges that on May 20, 2019, he operated a forklift to load inventory, but the forklift’s brakes failed and the forklift lacked a seatbelt feature (or any safety feature), such that he fell from an open ledge and was thrown from the seat of the forklift. Plaintiff alleges that the forklift fell from the open ledge onto his body, crushing him for approximately 20 minutes. He alleges the incident caused him to suffer substantial head trauma and the amputation of his left arm.

Plaintiff alleges that Defendants Power Medic Technologies, Inc. (“Power Medic”) and Pete’s Road Services, Inc. (“Pete’s Road Services”) were responsible for inspecting and maintaining the forklift. He alleges that the forklift was a Crown Model #RC3020-30 Stand Up forklift which was designed and manufactured by Defendant Crown Equipment Corporation (“Crown”).[1]

Plaintiff alleges that he was on the premises of 111 N. Baldwin Park Blvd., City of Industry, California, which is owned, operated, and controlled by non-parties Harvard Label, Inc. & One Stop Plastic Card, Inc. dba Harvard Card Systems; Harvard Label LLC; and PLI-Los Angeles. Plaintiff alleges that they outsourced services for the subject forklift to Power Medic and Pete’s Road Services.

Plaintiffs allege that Defendants 2000 Gold Limited Partnership (“2000 Gold”) and Michael Tang (“Tang”) maintained an unsafe area for forklift operation in the warehouse on the premises, including an unguarded, open, and unsecured ledge without any surrounding barriers or railing, which Defendants knew or should have known was dangerous. He also alleges that Defendants knew or should have known that a poorly, inadequately serviced forklift with faulty brakes was dangerous.

The complaint, filed March 11, 2021, alleges causes of action for: (1) negligence against all Defendants; (2) premises liability against Tang and 2000 Gold; (3) negligent hiring, supervision, training, and/or retention against Power Medic, Pete’s Road Services, 2000 Gold, and Tang; (4) strict liability against Crown; and (5) negligent product liability against Crown.

On October 25, 2021, Plaintiff dismissed without prejudice the complaint as to Power Medic Technologies, Inc. only.

On November 16, 2021, Plaintiff dismissed without prejudice the complaint as against Pete’s Road Service, Inc. only.

On June 30, 2021, Cross-Complainants 2000 Gold and Tang filed a cross-complaint against Power Medic, Pete’s Road Services, and Crown for: (1) equitable indemnification; (2) apportionment of fault; and (3) declaratory relief.

On January 5, 2023, Cross-Complainants dismissed without prejudice the cross-complaint as against Pete’s Road Service, Inc. only.

On January 11, 2023, Cross-Complainants dismissed without prejudice the cross-complaint as against Power Medic Technologies, Inc. only.

On December 7, 2021, Plaintiff in Intervention The Hartford Insurance Company of the Midwest (“Hartford:”) filed a Workers’ Compensation Subrogation Complaint in Intervention against 2000 Gold, Tang, Crown, and Roes 1-20.

On January 30, 2023, Defendants/Defendants-in-Intervention 2000 Gold and Tang filed a motion for summary judgment as to Plaintiff’s complaint and Hartford’s Complaint-in-Intervention. In the alternative, they seek summary adjudication on the following issues that there are no triable issues of act regarding:

· (1) Plaintiff’s 1^st cause of action for negligence against 2000 Gold and Tang;

· (2) Plaintiff’s 2^nd cause of action for premises liability against 2000 Gold and Tang; and

· (3) Plaintiff’s 3^rd cause of action negligent hiring, training, supervision and/or retention against 2000 Gold and Tang.

On April 6, 2023, Plaintiff filed opposition papers. On April 10, 2023, Hartford filed a joinder to Plaintiff’s opposition papers.[2] On April 14, 2023, 2000 Gold and Tang filed reply papers.

On February 9, 2023, Cross-Defendant Crown filed a motion for summary judgment against 2000 Gold and Tang’s cross-complaint. The Court is not in receipt of an opposition brief. On September 21, 2023, Crown filed a Notice of Non-Opposition to its motion, stating that it was not in receipt of an opposition brief.

Plaintiff requests judicial notice of the complaint. The request is granted. (Evid. Code, § 452(d).)

With the opposition brief, Plaintiff submitted evidentiary objections to the declaration of Kevin N. Heffernan and Exhibit A, which includes the deposition of Joe Hilger. Specifically, Plaintiff objects to specific excerpts of Mr. Hilger’s deposition testimony. The objections are overruled.

2000 Gold and Tang argue that they are entitled to summary judgment or, alternatively, summary adjudication on Plaintiff’s Complaint and Hartford’s Complaint-in-Intervention, arguing that Plaintiff’s 1^st, 2^nd, and 3^rd causes of action for negligence, premises liability, and negligent hiring/supervision/training/retention against them fail. (The 4^th and 5^th causes of action are not alleged 2000 Gold and Tang.)

The elements of a premises liability claim and negligence 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, 1158.) “A landlord is not liable for injuries to a tenant caused by a condition on the premises which arises after the tenant has taken possession. [Citations.] However, the rule in this state is different with respect to a condition which exists at the time the property is leased to the tenant. [Citations.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1605 [citations omitted].)

2000 Gold and Tang argue that the negligence and premises liability causes of action fail because they owed no duty of care to Plaintiff.

The following facts are undisputed. 2000 Gold is and was the owner of the building and property located at 111 N. Baldwin Park Boulevard and Tang is the CEO for 2000 Gold. (Gold Fact 1.) From January 2013 to October 2018, Tang operated the business Harvard Label, Inc. (“Harvard”) out of the subject property, which it leased from 2000 Gold. (Id. at 2.) Joe Hilger is the director of operations for PLI Card Marketing Solutions (“PLI”). (Id. at 3.) In October 2018, PLI purchased Harvard, which assumed the lease of the property from 2000 Gold. (Id. at 4.) Neither 2000 Gold nor Tang had any ownership interest in PLI and did not own or maintain any equipment used by PLI. (Id. at 5-6.) On May 20, 2019, Plaintiff was PLI’s employee and he was not employed, supervised, or directed by 2000 Gold or Tang. (Id. at 11-12.) On that day, Plaintiff was operating a forklift when the forklift went over the side of a loading dock on the subject property. The forklift had faulty, poorly maintained brakes and no seatbelt. (Id. at 13.) The loading dock was equipped with bollards on either end of the loading dock and a chain that could be stretched between the bollards. (Id. at 14.) The bollards and chain had been in place at the time PLI purchased the business and took possession of the subject property. (Id.) However, the chain was not in place at the time of Plaintiff’s accident although it was PLI’s policy that it be in place. (Id. at 15.) The chain was for the area where Plaintiff’s accident occurred and was available on the day of Plaintiff’s accident, which was under the sole control of PLI. (Id. at 16-17.)

2000 Gold and Tang argue that PLI’s equipment was maintained by PLI, PLI managed and was in control of the subject property, and PLI was responsible for maintenance and repairs to the subject property. (Gold Fact 7-10.) Facts 7-10 are disputed by the parties.

2000 Gold and Tang argue that PLI’s director, Mr. Hilger, acknowledged that PLI was responsible for all repairs and everything associated with the building, such that PLI had complete control over the property. (Hilger Depo at pp. 12-13, 48.) They argue that the accident only occurred because PLI failed to use the chain on the loading dock and PLI’s forklift had faulty brakes. They argue that they as landlords cannot be held responsible for dangers inherent in a dangerous business.

In opposition, Plaintiff argues that landowners are still liable for dangerous conditions that exist on the property. Plaintiff relies on Mora v. Baker Commodities, Inc. (1989) 210 App.3d 771:

[A] commercial landowner, cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. [Citations.] At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. [Citations.] Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain condition, the landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger.[] …

However, the landlord's responsibility to inspect is limited. Like a residential landlord, the duty to inspect charges the lessor “only with those matters which would have been disclosed by a reasonable inspection.” [Citations.] The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord's obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant.[] However, if no such inspection is warranted, the landlord has no such obligation.

Here, respondent, as the moving party of the summary judgment motion, had the burden to show as a matter of law that there were no triable issues of fact. [Citations.] Once a court finds a duty exists, it is for the jury to determine if the inspection was reasonable under the circumstances.

(Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781-782 [citations and footnotes omitted].)

Plaintiff argues that 2000 Gold and Tang have not provided any evidence showing that an inspection of the subject property took place at the time of the lease. Plaintiff also argues that any determination of whether the inspection was reasonable would be a question of fact for the jury to determine. Neither party provides a copy of the lease agreement between 2000 Gold and PLI for the premises.[3]

The Court also lacks any photographs of the loading dock. 2000 Gold and Tang have not provided any declarations, expert opinions, or documentary evidence of how high the loading dock was, whether the loading dock was a “typical cargo loading dock” (as claimed by 2000 Gold and Tang on page 3 of their reply), or whether the loading dock constituted a dangerous condition prior to and during the period of the lease.[4] Based on the evidence currently before the Court, the Court cannot ascertain whether a chain held across the bollards would have been sufficient to stop a forklift from going over the edge of the loading dock. (See Pl.’s Additional Material Fact [AMF] 29; Hilger Depo. at p. 30 [stating that “[a] chain would have a hard time stopping a forklift.”].)

At this time, the Court finds that 2000 Gold and Tang have not upheld their burden in summary judgment or summary adjudication on the 1^st and 2^nd causes of action. As such, the motion is denied as to the 1^st and 2^nd causes of action.

The elements of a negligent hiring, supervision, or retention of employee claim are: (1) the defendant employer hired the employee; (2) the employee was/became unfit or incompetent to perform the work for which he/she was hired; (3) the defendant employer knew or should have known that the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed the plaintiff; and (5) the defendant employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff’s harm. (CACI 426.) “[A]n employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843.) “Liability for negligent hiring ... is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

In the 3^rd cause of action, Plaintiff alleges in the complaint that Defendants had a duty of care in hiring, retaining, training, and/or supervising their employees, contractors, or agents. (Compl., ¶47.) Plaintiff alleges that Defendants’ employees, contractors, or agents were unfit or incompetent to perform the work for which they were hired, including the management, service, inspection, and maintenance of the subject forklift and the premises. (Id., ¶48.)

2000 Gold and Tang argue that the 3^rd cause of action against them fails because PLI was responsible for managing, servicing, inspecting, and maintaining the forklift and premises. They argue that they undertook no responsibility or actions that resulted in Plaintiff’s injury. They argue that there is no evidence of an employment relationship as there was no employee, agent, or contractor on the part of 2000 Gold or Tang who was involved with Plaintiff’s incident.

In opposition, Plaintiff did not address the 3^rd cause of action. Plaintiff has not raised any triable issues of material fact regarding the unfitness or incompetence of any employee of 2000 Gold and/or Tang.

The Court grants the motion for summary adjudication as to the 3^rd cause of action only.

2000 Gold and Tang argue that if summary judgment is granted as against Plaintiff’s complaint, then Hartford’s Complaint-in-Intervention too should be barred.

However, as discussed above, the motion for summary judgment is denied and the motion for summary adjudication is denied as to the 1^st and 2^nd causes of action. As there are still active claims against 2000 Gold and Tang in Plaintiff’s complaint, the Court declines to enter summary judgment or summary adjudication in favor of 2000 Gold and Tang on Hartford’s Complaint-in-Intervention.

Crown moves for summary judgment against Cross-Complainants 2000 Gold and Tang’s cross-complaint. As noted above, the motion is not opposed.

Crown argues that the cross-complaint fails as alleged against Crown because: (1) Crown did not owe a duty of care to Plaintiff; and (2) Cross-Complainants have not offered any credible evidence against Crown regarding the alleged defects in the subject forklift or causation.

Crown provides the following undisputed material facts. On March 11, 2021, Plaintiff filed a complaint against 2000 Gold and Tang, Crown, and other unrelated parties seeking damages for the subject May 20, 2019 accident while Plaintiff was operating a Crown RC 3000 Series stand-up rider forklift, Serial No. 1A315203 at a PLI Card Marketing Solutions (“PLI”) warehouse in Industry, California. (Crown Fact 1.) While operating the subject forklift to load inventory at PLI, Plaintiff drove the forklift off an open loading dock, falling approximately 4 feet to the ground below, with the forklift’s overhead guard striking his head and crushing his left upper extremity, eventually requiring amputation. (Id. at 2.) Plaintiff’s complaint asserts causes of action sounding in negligence and strict liability against Crown, but Plaintiff has not served Crown as a defendant in this action. (Id. at 3-5.) On June 30, 2021, 2000 Gold and Tang filed a cross-complaint against Crown and Crown was served on April 13, 2022. (Id. at 6-7.)

First, Crown argues that it did not owe a duty of care to Plaintiff to ensure the adequate inspection, maintenance, repair, etc. of the subject forklift and therefore did not breach a duty. Crown argues that it did not own, possess, or control the warehouse and that it did not perform service or maintenance of the condition of the forklift at the time of the accident. (See e.g., Kaley v. Catalina Yachts (1986) 187 Cal.App.3d 1187, 1201 [“Every owner has a duty to maintain all brakes and component parts in good condition and in good working order. … The duty to maintain the brakes in good working order is not delegable.”] [citing Vehicle Code, § 26453].)

In its undisputed facts, Crown states that in the 1^st cause of action for negligence against Crown, which Cross-Complainants adopted, Plaintiff’s complaint alleges that Crown “had a duty to ensure adequate inspection, maintenance, repair, replacement transporting, emptying, safety and management of the subject forklift” and that Crown breached such duty. (Crown Fact at 8.) Joe Hilger (PLI’s director operations) testified that PLI’s maintenance department was in charge of maintaining the forklifts at their facilities, including the subject forklift involved in Plaintiff’s accident, because they tried to do as much maintenance in-house. (Id. at 9; Hilger Depo. at 26:21-24 and 28:14-25.) Mr. Hilger testified that PLI was “responsible for all repairs and everything associated with operating the building” and that he had no information that Crown performed any maintenance or repairs on the subject forklift. (Crown Fact at 10-11; Hilger Depo. at 48:12-15 and 55:6-9.) Crown did not own the subject forklift, did not perform service or maintenance on the forklift, and did not own or control PLI’s warehouse. (Crown Fact at 12.)

The Court finds that Crown has upheld its initial burden on the motion as to Plaintiff’s negligence cause of action, such that it would not be liable for indemnity, apportionment of fault, or declaratory relief as to 2000 Gold and Tang’s cross-complaint. “[T]here can be no indemnity without liability.” (Children's Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787; Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [“Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff's injuries.”].) As the motion is not opposed, Cross-Complainants have not presented opposing evidence or triable issues of material fact that Crown owed a duty to Plaintiff and thereby have not shown that Crown was required to indemnify Cross-Complainants.

Second, Crown argues that Cross-Complainants have not presented evidence that there were alleged defects in the forklift that caused Plaintiff’s injuries.

In its separate statement, Crown states that in the 4^th cause of action for strict liability and 5^th cause of action for negligent product liability against Crown, which Cross-Complainants adopted, Plaintiff’s complaint alleges that the forklift was defective in design and negligently designed because it was not equipped with seatbelts or safety guard rails, or other safety features such as a roll cage. (Crown Fact at 13-14.) Crown states that Plaintiff’s allegations form the basis for Cross-Complainants’ cross-complaint. (Id. at 15.) Crown states that the forklift complied with all applicable industry standards, including the American Society of Mechanical Engineers/American National Standards Institute (“ASME/ANSI”) B56.1 Safety Standard for Low Lift and High Lift Trucks, all Occupational Safety and Health Association (“OSHA”) regulations, and all Underwriters Laboratories (“UL”) Safety Standards. (Id. at 16-17.)

Crown presents the declaration of Ronald A. Grisez, who is the Director of Product Safety and the Product Safety Coordinator at Crown. He states that in his role, he is knowledgeable about the design features of Crown’s forklifts and the applicable standards that forklifts must comply with, including ASME/ANSI B56.1 Safety Standards, OSHA regulations, and UL Safety Standards. (Grisez Decl., ¶3.) He states that he has reviewed the design features of the Crown RC 3000 Series stand-up rider forklift at issue in this case and that it complied with all applicable standards and regulations. (Id., ¶4.) He states that the forklift was not defective in any way and was reasonably safe for its intended user. (Id., ¶6; Crown Fact 18.)

The Court finds that Crown has upheld its burden on these causes of action in the complaint, which are the underlying claims that Cross-Complainants’ cross-claims against Crown are based upon. The motion is not opposed, such that Cross-Complainants have not raised triable issues of material fact.

As such, Crown’s motion for summary judgment to the cross-complaint is granted.

Defendants/Cross-Complainants/Defendants-in-Intervention 2000 Gold Limited Partnership and Michael Tang’s motion for summary judgment on Plaintiff’s Complaint and Hartford’s Complaint-in-Intervention is denied. In the alternative, 2000 Gold and Tang’s motion for summary adjudication is denied as to the 1^st and 2^nd causes of action to Plaintiff’s Complaint and Hartford’s Complaint-in-Intervention. The motion for summary adjudication is granted as to the 3^rd cause of action alleged in Plaintiff’s Complaint.

Cross-Defendant Crown Equipment Corporation’s motion for summary judgment to Cross-Complainants 2000 Gold Limited Partnership and Michael Tang’s cross-complaint is granted. The Court notes that the cross-complaint was alleged against Cross-Defendants Power Medic Technologies, Inc. (dismissed), Pete’s Road Services, Inc. (dismissed), and Crown Equipment Corporation only. As there are no remaining parties and claims remaining in the cross-complaint, the cross-complaint shall be dismissed and Crown Equipment Corporation is ordered to prepare a proposed judgment with respect to the cross-complaint.

[1] The named defendant is Crown Equipment Corporation (see caption in complaint and paragraph 8), but the complaint refers to Crown Equipment Company in the allegations (see paragraphs 23-24 in the complaint).

[2] Hartford’s joinder papers only include a 2-page joinder with no additional arguments or separate statement.

[3] In his deposition, Mr. Hilger states that he believes and knows there was a lease agreement for the building, but does not know who the parties to the agreement were and had not seen a copy of the lease agreement himself. (Hilger Depo. at pp.22-23.) in reply, 2000 Gold and Tang argue that there was no written lease agreement with PLI and that PLI was responsible for undertaking all maintenance and management of the subject property. There is a triable issue of material fact regarding whether a lease agreement existed, whether an inspection of the property occurred at the time of the lease, and whether the inspection was “reasonable.”

[4] At most, the Court has Mr. Hilger’s deposition testimony. He testified that the loading dock is an outdoor elevated loading dock, which is surrounded by the building premises on one side and surrounding by rails and a ramp down to the parking lot level on the other side. He states there is a roof over the top. He states that the loading dock area has room for 2 trucks to back up and that the loading dock is approximately 4 feet off the parking lot. (Hilger Depo. at p.14.)

Superior Court of California

County of Los Angeles

Department B