Judge: Lisa R. Jaskol, Case: 20STCV36426, Date: 2023-08-11 Tentative Ruling

Case Number: 20STCV36426    Hearing Date: September 21, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On September 24, 2020, Plaintiff Tomas Gutierrez (“Plaintiff”) filed this action against Defendants Reign Investments, LLC (“Reign”) and Ghafoori-Tabrizi Kamran for premises liability. Plaintiff later amended the complaint to include Defendants Summer Land Partners Group, Inc. (“Summer Land”) and VA Building Company, Inc. (“VA”). 

On November 30, 2020, Reign filed an answer and a Cross-Complaint against Cross-Defendants Roes 1-20 for indemnification, apportionment of fault and declaratory relief. 

On December 22, 2021, Summer Land filed an answer. On May 31, 2022, VA filed an answer. 

On December 20, 2022, VA moved for summary judgment.  The motion was set to be heard on August 11, 2023.  On July 28, 2023, Plaintiff filed an opposition. On August 4, 2023, VA filed a reply.   On August 11, 2023, the Court heard argument and continued the hearing to September 21, 2023. 

Trial is currently set for December 15, 2023. 

PARTIES’ REQUESTS 

VA requests that the Court grant summary judgment. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

A.   Summary judgment 

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)   

In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view the evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  

          B.  Negligence 

          “The elements of a negligence claim [are] . . . a legal duty of care, breach of that duty, and proximate cause resulting in injury.”  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

VA’S EVIDENTIARY OBJECTIONS 

Sustained: 6, 7

Overruled: 1-5 

DISCUSSION 

A.   Undisputed facts 

On or about November 30, 2019, Plaintiff fell in the garage of the construction project located at 13724 Victory Boulevard, Van Nuys, California (“Project) while working for his employer, Bob French Construction.  (UMF 9.)  Plaintiff alleges that he fell into an 8-foot deep sump hole.  (UMF 10.)   

Plaintiff had walked down a ramp into the garage of the structure, where fell into the sump hole as he was walking in the garage toward a set of stairs.  (UMF 15.) The sump hole was approximately 20 to 25 feet away from the bottom of the ramp.  (UMF 16.)  Plaintiff did not see the sump hole because it was typically covered.  (UMF 18.) The last time Plaintiff saw the sump hole with a cover on it was approximately two weeks before the incident.  (UMF 13.) 

VA is a commercial plumbing company and was the plumbing contractor at the Project.  (UMF 2.)  VA did not own the property where the incident occurred.  (UMF 1.)  VA did not create the sump hole which Plaintiff fell into. (UMF 8.)  VA’s initial work at the Project of connecting the underground plumbing pipes to the sump hole was completed on or about the end of October 2019. (UMF 3.)  VA’s scope of work at the Project also included installing a sump pump in the hole once construction at the project was near completion.  (UMF 4.)  

In his complaint, Plaintiff asserts a negligence claim against VA.  (UMF 22.)  Plaintiff alleges VA failed to post adequate warnings or a barrier and therefore created an unsafe and dangerous condition. (UMF 24.)  Plaintiff further alleges that VA had a duty to ensure the sump hole was covered at all times and ensure the area was well lit.  (UMF 25.) 

Summer Land was the Project’s general contractor.  (Declaration of Mia Hong, Exh. 5, p. 35.) 

B.   VA carries its initial summary judgment burden 

VA argues it did not have a duty to Plaintiff because VA did not create the risk and did not have a special relationship with Plaintiff.  VA did not create the sump hole which Plaintiff fell into.  VA has presented evidence that its initial work at the Project was completed by the end of October 2019 and it did not have any employees working at the sump hole location between October 2019 and December 11, 2020.  In addition, VA presented evidence that an employee of Bob French Construction had placed a plywood cover over the sump hole but a “helper” of the “owner” removed it within two weeks before Plaintiff’s fall.  The “helper” later apologized to Plaintiff for removing the cover and forgetting to replace it before Plaintiff fell.  Plaintiff did not know the helper’s name but stated he was between 4 feet 8 inches and 5 feet in height. 

VA also contends it did not have a special relationship with Plaintiff because, as the plumbing contractor, it did not own, possess, or control the property and did not employ Plaintiff.  VA asserts its scope of work did not include inspection of the Project.  Therefore, VA argues, it did not owe a duty of care to Plaintiff to inspect the property, place warning signs or ensure the garage had adequate lighting.  VA has presented evidence to support these contentions. 

VA has carried its initial burden on summary judgment, shifting the burden to Plaintiff. 

C.   Plaintiff has raised triable issues of fact 

1.    Duty 

Plaintiff asserts that VA was responsible for ensuring the sump hole remained covered while work on it was not being performed. (PAMF 5-7.)  To support this assertion, Plaintiff relies on the deposition testimony of Menashe Kozar, Summer Land’s person most qualified.  Kozar testified that VA was tasked with ensuring the sump hole remained covered at all times while it was not being worked on.  (Exh. 4 to Declaration of Mia Hong, pp. 33-34.) 

VA disputes the foundation for Kozar’s testimony.  Kozar was the person most qualified for Summer Land, the Project’s general contractor.  (Declaration of Mia Hong, Exh. 5, p. 35.)  VA was the Project’s plumbing contractor.  (UMF 2.)  Kozar testified that Summer Land, as the general contractor, was responsible for supervising the subcontractors to ensure they properly performed their job tasks. (Exh. 4 to Declaration of Mia Hong, p. 40.)  Kozar further testified that he conducted in-person safety inspections of the Project, including the lower garage level, and if he had seen that the sump hole was left uncovered he would have addressed that with VA. (Exh. 4 to Declaration of Mia Hong, pp. 39-40.)  This testimony provides adequate foundation for Kozar’s deposition testimony that VA was responsible for ensuring the sump hole remained covered when work on it was not being performed.  

Plaintiff has raised a triable issue of fact regarding duty. 

2.    Breach 

VA argues Plaintiff cannot prove it breached a duty of care because VA did not employ anyone who fits the description of the person who, according to Plaintiff, apologized to Plaintiff for removing the cover from the sump hole before Plaintiff’s fall.  VA also points to other evidence suggesting VA did not employ the person who removed the sump hole cover. 

Plaintiff’s theory of breach does not require that VA be responsible for removing the sump hole cover before Plaintiff’s fall.  Plaintiff has raised a triable issue of fact by presenting evidence that the sump hole was uncovered for up to two weeks and VA did not replace the cover during that time, breaching its alleged duty to ensure the sump hole remained covered whenever work was not being performed there. 

VA also asserts that even assuming it was responsible for providing lighting in the area of the sump hole (which VA denies), Plaintiff testified that he did not have trouble seeing as he was walking toward the stairs at the time of his fall.  Therefore, VA argues, lighting was not a factor in Plaintiff’s fall. 

Plaintiff’s deposition testimony is not as definitive as VA suggests.  In response to the question, “So are you telling us that you were having no trouble seeing when you were walking towards the stairs,” Plaintiff answered: “Correct. The light from the lamp didn't bother me. I didn't simply see the hole because we all know that it's closed. It's secure. A person can walk with no problem always.”  Plaintiff was then asked, “My question is: Is there any reason why you didn't see the hole was open before you stepped in it?”  Plaintiff answered, “Because when you start to walk where there's metal, then it's dark. Now, when you're coming off of the ramp, then it's light. But where the metal is and the hole, it's dark. I never imagined it would be open. If I had, I wouldn't have fallen.”  (Declaration of Mia Hong, Exh. 2, p. 65.) 

Plaintiff has carried his burden of raising a triable issue of fact concerning whether VA breached a duty of care to Plaintiff. 

CONCLUSION 

The Court DENIES Defendant VA Building Company, Inc.’s motion for summary judgment. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days of the continued hearing.