Judge Lee S. Arian, Case Number: 22STCV31699, Date: 2025-05-07 Tentative Ruling

Plaintiff Barryon Basil Nembhard (“Plaintiff”) alleges that he was injured on September 30, 2020, when Elevator No. 2, identified as Machine No. 642120, State No. 180843 (the “Subject Elevator”), at The Ivy at Noho, located at 11011 Otsego Street, Los Angeles, California (the “Subject Property”), allegedly dropped several floors and came to a stop at the basement level of the property.

Based on this incident, Plaintiff asserts the following claims against Otis Elevator Company:

2. Second Cause of Action – Products Liability, including:
a) Count One – Negligent Infliction of Personal Injury,
b) Count Two – Breach of Warranty, and
c) Count Three – Strict Liability; and

Defendant Otis now moves the Court for summary judgment, or in the alternative, summary adjudication on the following issues:

Summary Adjudication – Basis No. 1:
Plaintiff cannot establish that Otis Elevator was negligent in constructing or installing the Subject Elevator, nor in performing limited new installation warranty maintenance services. Additionally, this claim is barred under the completed and accepted doctrine.

Summary Adjudication – Basis No. 2:
Plaintiff’s Second Cause of Action for Products Liability, including all three counts, is barred by law because Otis Elevator acted as the constructor of an improvement to real property, not as the manufacturer of a consumer product. There is no evidence of a specific defect in the Subject Elevator, which was completed in May 2019. The Subject Elevator does not qualify as a “product” for purposes of strict liability under California law. Moreover, Plaintiff’s express warranty claim is time-barred, and the implied warranty claims fail for lack of privity and because any applicable warranties were disclaimed.

Summary Adjudication – Basis No. 3:
Negligence Per Se is not an independent cause of action and is derivative of Plaintiff’s underlying negligence claim, which is not viable. In addition, Plaintiff has not identified any specific statute, ordinance, or regulation that Otis Elevator allegedly violated.

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“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.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court overrules Defendant’s objections to Mr. Stabler’s expert declaration, except as to paragraphs 13, 18, 20, and 34, which were not material to the Court’s ruling. (CCP § 437c(q).

Although Plaintiff objects to certain material facts, the objections are improper for purposes of evidentiary rulings. As to Plaintiff’s sole evidentiary objection to the declaration of Mark Hollinger in its entirety, the Court overrules the objection.

Defendants argue that Plaintiff’s negligence claims fail because there is no evidence that Otis Elevator breached any duty or that any alleged breach caused or contributed to Plaintiff’s injuries. Under California law, an elevator maintenance company owes a duty of ordinary care and is not held to the heightened standard applicable to common carriers. (Vandagriff v. J.C. Penney Co. (1964) 228 Cal.App.2d 579, 583; Dahms v. General Elevator Co. (1932) 214 Cal. 733, 742.)

Otis constructed and installed the Subject Elevator at the property, completing the work on May 29, 2019, pursuant to a May 1, 2017 subcontract agreement between Otis, J&G Construction, Stephen Samuel Irrevocable Trust, and Evolve Realty Development Corp. (UMF 6.) Otis performed its work as a subcontractor under J&G Construction, the general contractor for the Subject Property. (UMF 7.)

Defendants contend that Otis satisfied its warranty maintenance obligations in a diligent and professional manner and that Otis’s duty was limited to the scope of its new installation warranty, which expired around June 2020. (UMF 18.) Defendants further assert that Otis was not performing maintenance at the time of the alleged incident, which occurred months after its warranty period ended, and that ongoing responsibility had shifted to TRE Elevator. (UMF 24–25.) There is no evidence Otis had actual or constructive notice of any defect similar to the condition alleged by Plaintiff during its service period. (UMF 21–22.) Otis’ maintenance records do not reflect any issue or complaint consistent with Plaintiff’s claims. (UMF 26.) The records are silent as to any unexpected stops or erratic elevator movement during the period Otis was responsible for maintenance.

Although Plaintiff presents various arguments and evidence relating to prior incidents, the only evidence before the Court regarding the period during which Otis was responsible for maintenance, up until June or July 2020, when maintenance was transferred to TRE, consists of Otis’s own maintenance records showing issues in February and April 2020. Although Plaintiff cites documentation from TRE, including maintenance records, those records pertain to a timeframe after Otis’ warranty period. The Court acknowledges Plaintiff’s argument that Otis’ PMK witness could not confirm whether maintenance was conducted in July, August, or September 2020. However, this does not constitute affirmative evidence that Otis continued performing maintenance beyond the documented period. The evidence shows that Otis’ warranty period was one year, and the record does not indicate that Otis maintained the subject elevator after June 2020. Plaintiff also argues that Otis’ inspections did not conform to OMMS standards, but these arguments do not directly relate to the incident at issue, the elevator’s abrupt stop that allegedly caused Plaintiff’s injuries. The central question is whether there is evidence that Otis failed to properly perform its inspection duties or otherwise caused the incident during Otis’s maintenance period through June 2020.

Plaintiff contends that Otis negligently maintained the elevator by failing to perform adequate inspections and by not identifying or repairing a defect that allegedly caused the elevator to drop suddenly. Plaintiff asserts that Otis’ own records, as well as TRE’s records for June 2020, show that Otis responded to service calls in February, April, and June 2020, all involving similar issues such as power outages, the elevator failing to move, and individuals becoming trapped inside; events that required system resets. Plaintiff argues that these incidents suggest potential control system issues that were not properly investigated. According to Plaintiff’s expert, abnormalities in acceleration or deceleration are often caused by defects in the regulation or control mechanism, and Otis’ failure to thoroughly examine those systems may have allowed a latent defect to go undetected.

Specifically, the expert claims that on February 6, 2020, Otis reset the car safety operated switch (SOS) but failed to document what was examined or what corrective action was taken. Again, on April 26, 2020, Otis responded to a service call noting, “HARTSOOK ELV, DUE TO PWR OUTAGE ELV NT WRKING,” but failed to document any diagnostic procedures or findings. As detailed in the Stabler Declaration, these responses reflect a pattern of superficial maintenance activity rather than a thorough investigation into the elevator’s control system. According to industry standards cited by Stabler, “abnormal movements including fast acceleration and deceleration rates are almost always caused by a problem with the regulation or control mechanism in the elevator system. Since elevators must compensate for the number of passengers in both directions of travel, the controlling mechanisms are complex. Most traction-type elevators are equipped with speed or current sensors that feedback information to the speed-regulating circuitry. Faults in the circuitry can result in incorrect information being fed back to the controlling mechanism causing the hoisting motor voltage to be unstable. This can cause the elevator to abruptly accelerate in either direction or to even to abruptly change directions.” Stabler opines that Otis’s failure to diagnose the root causes of these earlier incidents allowed a potentially hazardous condition to persist, ultimately contributing to the September 30, 2020 abrupt stop. By failing to examine and test the elevator’s critical control and braking systems in accordance with applicable standards, Otis “failed to thoroughly examine and test the subject elevators to ensure that a defect or failure in the elevator's operating system would not result in the elevator descending in an uncontrolled manner and stopping abruptly, which is the proximate cause of Plaintiff's incident.” (Stabler Decl. at ¶¶ 7.15, 7.17, 9.5.) The Court agrees that the superficial service records for the February and April 2020 service calls are insufficient to establish that no triable issues of fact exist regarding the negligent maintenance claims.

Accordingly, the motion for summary adjudication as to Plaintiff’s first cause of action is denied.[1] (And, consequently, the motion for summary judgment is also denied.)

Defendants argue that Plaintiff’s strict products liability claim fails for two independent reasons: (1) the Subject Elevator is not a “product” within the meaning of strict liability law, and (2) there is no evidence of any defect in the elevator that caused Plaintiff’s alleged injuries. Otis Elevator constructed and installed the Subject Elevator as a licensed C-11 elevator contractor. Because the elevator was custom-built and permanently installed into the property as part of a construction project, Defendants contend it constitutes an “improvement to real property” and not a mass-produced product subject to strict liability. (Brooks v. Eugene Burger Mgmt. Corp. (1989) 215 Cal.App.3d 1611, 1624–1627[playground equipment and ground is not a product]; Robinson v. Chin & Hensolt (2002) 98 Cal.App.4th 702, 712.[cable car turntable is not a product]) They invoke the reasoning behind Code of Civil Procedure §§ 337.1 and 337.15, which limit the liability exposure of contractors involved in real property improvements and support the distinction between construction work and product manufacturing. Because Otis constructed and installed the elevator directly on site, rather than mass-producing it for resale, Defendants assert that strict liability does not apply.

Plaintiff argues that the subject elevator did not perform as safely as an ordinary consumer would expect and that the design was defective because the risks presented by the elevator’s design substantially outweighed any benefits conferred. However, Plaintiff cites no legal authority to overcome Defendant’s argument on the threshold issue of whether strict products liability applies to the subject elevator. Plaintiff further contends that the elevator was defective in the specific design of its microprocessor-based controller and electric-dynamic or mechanical braking systems and interlocks, and that these components malfunctioned in a dangerous manner, causing the incident and subsequent malfunctions in the months following installation. However, there is no evidence as to the alleged defect for the microprocessor-based controller and electric-dynamic or mechanical braking systems and interlocks and whether such defect was present when it left the assembly line rather than as a result of negligent maintenance.

Plaintiff has elected to dismiss his Second Cause of Action for Breach of Warranty and Third Cause of Action for Negligence Per Se against the moving Defendant. Accordingly, the Motion for Summary Adjudication as to these two causes of action is moot.

The Motion for Summary Adjudication as to Issue One is denied. The Motion for Summary Adjudication as to Issue Two is granted.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Given its ruling, the Court does not address the “Inspected and Approved” Doctrine, as the negligence cause of action survives based on the negligent maintenance claim. However, the Court will discuss at the hearing whether the doctrine needs to be addressed in light of the potential issues of duty that may be implicated by such consideration.