Judge Linda S. Marks, Case 2021-01179837 2023-07-24 Tentative Ruling

Judge: Linda S. Marks, Case: 2021-01179837, Date: 2023-07-24 Tentative Ruling

1. Motion to Compel Production filed by Owen Horowitz on 3/20/23
2. Motion for Summary Judgment and/or Adjudication filed by ECS Mechanical, Inc. on 5/5/23

Motion #1 is continued to 08/14/2023 to be heard with the companion Motion to Compel Answers to Interrogatories.

Motion #2 Motion of Defendant ECS Mechanical, Inc. (“ECS”) for summary judgment or, in the alternative, for summary adjudication:

A defendant moving for summary judgment satisfies his or her initial burden by showing 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).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 (pleadings serve as the outer measure of materiality in a summary judgment motion)).

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

Per the Complaint, this action arises out of an incident where Plaintiff fell from a mobile scaffolding platform while installing a portion of ceiling at a Vons store. (Compl. ¶1.) The incident occurred when the mobile scaffolding’s front wheel rolled into an uncovered floor drain. (Id.) Per the Complaint, Plaintiff was employed at the time by general contractor RK Build Group, Inc. (“RK”). (Compl. ¶12.) ECS was added into the case as Doe 2. (ROA 27.)

The Complaint alleges causes of action for 1) negligence; and 2) premises liability.

First Cause of Action for Negligence

The elements of a negligence cause of action are: duty, breach, proximate or legal cause of injury to Plaintiff resulting from the breach, and damage to plaintiff. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5)

ECS first contends that it did not owe any duty to prevent Plaintiff’s harm. The subject property was owned and operated by Safeway, Inc. (UMF 2.) ECS submits evidence that it was a subcontractor hired by general contractor RK to perform plumbing and fire sprinkler work at the site. (UMF 1, 4.) ECS also submits evidence that its bid proposal, which was ultimately accepted by RK, contained exclusions which excluded from ECS’s scope of work any obligation to provide floor protection or safety markings. (UMF 3-4.) ECS did not expose the floor drain nor did it cover it with red tape. (UMF 11.) The exposure of the floor drain as well as covering it with red tape were performed by employees of RK. (UMF 12.) As of the date of Plaintiff’s accident, ECS had not performed any work on the floor drain. (UMF 13.)

Plaintiff attempts to dispute the above evidence. Plaintiff contends that fire sprinkler work was not included in the proposal. Plaintiff cites to Exhibit 1, which is an unauthenticated (and therefore inadmissible) document titled “Proposal.” However, even had the document been admissible, whether the scope of work included fire sprinklers or not is not a triable issue of material fact.

Plaintiff also attempts to create a triable issue of fact by contending that there were multiple proposals and that the phrase “safety markings” did not appear in any of them. Plaintiff failed to create a triable issue of fact because the proposal exclusions submitted by ECS list “floor protection or safe off” as excluded from ECS’s scope of work. ECS’s principal, Edward Smith, explains in his declaration that “safe off” is a common term used in the plumbing and construction industries to mean safety devices or safety markings. (Smith Decl. ¶5.) Plaintiff has not submitted any admissible evidence to create a triable issue. Further, Plaintiff’s Exhibit 1, which is not authenticated and therefore not admissible, appears to include a list of exclusions that is identical to that submitted by ECS. Therefore, even if the court could consider Plaintiff’s Exhibit 1, it would not change this court’s ruling. Plaintiff takes issue with a number of ECS’s other material facts, but does not provide any admissible evidence to support his contentions.

ECS has met its burden in demonstrating that it did not owe a duty to prevent Plaintiff’s harm. ECS did not own, possess, lease, occupy or control the property. It also had no involvement with the subject drain prior to the time of the accident. Plaintiff has not raised a triable issue of material fact.

As the above is dispositive of the motion, the court does not address ECS’s remaining arguments.

Second Cause of Action for Premises Liability

The elements of premises liability are: (1) Defendant owned/leased/occupied/controlled the property, (2) Defendant was negligent in the use or maintenance of the property, (3) Plaintiff was harmed, and (4) Defendant’s negligence was a substantial factor in causing Plaintiff’s harm. (CACI 1000.) “The same concepts of duty applicable to general negligence claims apply to premises liability claims.” (Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139.)

As with the first cause of action for negligence, ECS again argues that it did not owe any duty to prevent Plaintiff’s harm. Accordingly, the above discussion applies equally to the second cause of action for premises liability.

Tentative Ruling: The motion of Defendant ECS Mechanical, Inc. (“ECS”) for summary judgment, is GRANTED.

Plaintiff’s requests for judicial notice are DENIED. The facts of which the Plaintiff requests the court take judicial notice are not the proper subject matter for judicial notice. (See Evid. Code §§452(g), (h).)

ECS to give notice