Judge: Loren G. Freestone, Case: 37-2021-00016815-CU-PO-CTL, Date: 2023-08-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00016815-CU-PO-CTL ROMERO VS SIEMENS MOBILITY INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Siemens Mobility Inc.'s motion for summary judgment is DENIED.

Preliminary Matters Siemen's unopposed request for judicial notice of the case docket and various documents on file is granted.

Plaintiff Robert Romero's unopposed request for judicial notice of OSHA regulations is granted.

Romero's evidentiary objections 1, 2, 3, and 5 are overruled. (See Andrews v. Foster Wheeler LLC (206) 138 Cal.App.4th 96, 102–107 [moving party may meet its initial burden by submitting factually devoid interrogatory responses and deposition testimony, showing that the opposing party does not possess and cannot reasonably obtain needed evidence].) Romero's evidentiary objection 4 is sustained. (See Great American Ins. Cos. v. Gordon Trucking, Inc.

(2008) 165 Cal.Ap.4th 445, 450 ['the responding party may not use its own interrogatory responses in its own favor' in moving for summary judgment].) Siemens' evidentiary objections 1–32 are overruled. (See Hooked Media Group, Inc. v. Apple Inc.

(2020) 55 Cal.App.5th 323, 338 ['documents were authenticated both by the attorney's statement that they had been produced in discovery and by their form, which indicates authenticity'].) Siemens' evidentiary objection 33 is also overruled. (Cal. Rules of Court, rule 3.1354(b)(3) [objections must 'quote or set forth the objectionable statement or material'].) Siemens' evidentiary objections made directly in its response to Romero's statement of additional material facts are overruled. (Cal. Rules of Court, rule 3.1354(b); see Hodjat v. State Farm Mut. Auto.

Ins. Co. (2012) 211 Cal.App.4th 1, 8–9.) The court additionally notes that neither party referenced their objections by objection number in the right column of their separate statements in opposition/reply to the motion as required. (Cal. Rules of Court, rule 3.1354(b).) Calendar No.: Event ID:  TENTATIVE RULINGS

2951186  22 CASE NUMBER: CASE TITLE:  ROMERO VS SIEMENS MOBILITY INC [E-FILE]  37-2021-00016815-CU-PO-CTL Analysis Siemens moves for summary judgment on the basis that it 'was not responsible for the presence of the fluid on which Plaintiff slipped and fell on June 12, 2019.' Siemens relies on the following evidence: (1) Romero's sparse discovery responses about the factual basis for his claim, (2) admissions in his deposition that he did not have any information about who was responsible for allowing hydraulic fluid to get onto the car, and (3) testimony from its San Diego field site manager that he did not have any information indicating a Siemens employee was responsible for the spill. (Def. UMF 8–14, 16.) Even assuming this was sufficient to shift the burden, Romero submits sufficient evidence raising a triable issue of fact. Importantly, although a motion for summary judgment cannot be opposed based on mere speculation and conjuncture, the court must 'consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence.' (Achay v. Huntington Beach Union High School District (2022) 80 Cal.App.5th 528, 541; see, e.g., Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1167–1168.) Here, Romero submits evidence that in June 2019, the month of the incident, Siemens was attempting to repair various issues with the trolleys it had sold MTS. (Plf. AMF 27–29, 35–39, 41.) It was undertaking 'daily operations' during that time. (Plf. Ex. 5 at 80.) The subject trolly (no. 5010), specifically, was part of a 'consist' (i.e., a group of connected trolley cars) that was experiencing issues with doors, ramps, loose connectors, and component failures that Siemens was trying to remedy. (Plf.

Ex. 6.) A jury could reasonably infer that Siemens deposited the fluid on the trolley floor while it was performing the repairs, particularly in light of Siemens' failure to offer a reasonably plausible alternative explanation.

Moreover, regardless of whether Siemens caused the spill, there is a triable issue as to whether it negligently failed to remove the fluid. As Romero points out, Siemens never addressed that separate theory of liability in its moving papers. (See Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846 ['If the defendant does not address an issue in a motion for summary judgment that has been raised in the plaintiff's complaint, it fails to meet its initial burden to show the plaintiff's action has no merit']; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714 ['a defendant who seeks summary judgment must define all of the theories alleged in the complaint and challenge each factually'].) Siemens argues that was a 'previously undisclosed theory of liability.' But the theory was disclosed at the outset of the case. Romero specifically alleged that Siemens not only 'negligently left' the fluid (Compl. ¶ 12), but also that it negligently 'failed to remove' it (Compl. ¶ 13). Romero's later interrogatory responses, asserting that Siemens 'negligently created a dangerous condition (liquid on the floor) on the Trolley,' are fairly construed as encompassing both the misfeasance and the nonfeasance that were expressly alleged in the complaint. (See Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211 [explaining that 'courts are encouraged to take a liberal approach in determining the scope' of the claims at issue, and holding that use of the term 'negligently' in connection with alleged premises liability raised issue of both general negligence and negligence per se].) Siemens argues that it did not owe any such duty to Romero. A 'person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect unless there is some relationship between them which gives rise to a duty to act.' (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 437–438.) The common law does not recognize any such relationship between an employer and the employees of another employer who are present at the same worksite.

(Id. at p. 438.) 'The common law does recognize, however, that a special relationship of the type that gives rise to a duty to take affirmative action to protect another may be created by contract.' (Ibid.) 'If a special relationship arises out of a contractual duty, the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract.' (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1203.) Calendar No.: Event ID:  TENTATIVE RULINGS

2951186  22 CASE NUMBER: CASE TITLE:  ROMERO VS SIEMENS MOBILITY INC [E-FILE]  37-2021-00016815-CU-PO-CTL Here, Siemens' agreement with MTS includes the following provision under Section 4.5, entitled 'Safety and Protection': 'The Manufacturer [Siemens] shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Manufacturer shall take all necessary precautions for the safety of and shall provide the necessary protection to prevent injury or death to employees and other persons engaged in the performance of the Work.' (Plf. AMF 18.) 'Work' is defined as 'the furnishing of all of the supervision, labor, Materials, equipment, services, and incidentals necessary for the production, assembly, furnishing, delivery, inspection, qualification testing, static testing and dynamic testing of all [trolleys] (including spare parts, training, technical support, manuals, and Special Tools) as contemplated in the Contract Documents.' (Plf. AMF 19.) Siemens argues that this provision does not extend to Romero because he was not 'engaged in the performance of the Work.' As support, Siemens cites to facts that the incident happened at the beginning of Romero's shift when he was attempting to go about his 'daily duties.' (Def. UMF 4–5.) Those facts are insufficient to meet Siemens' initial burden because they are not supported by evidence showing that those 'daily duties' were unrelated to the 'Work.' Romero, on the other hand, submits evidence that at the time of the incident he was moving the trolley to the 'C Yard' for maintenance. (Plf.

Ex. 7 at 30–32.) And as noted above, this was during the same time when the trolley was experiencing various issues that Siemens was attempting to remedy. Thus, a jury could reasonably infer that Romero slipped while moving the trolley in connection with the 'Work.' Finally, Siemens argues that it did not breach any such duty. As support, it cites to the fact that it cleaned the vehicle. (Plf. Ex. 5 at 16.) But again, that fact is insufficient to meet Siemens' initial burden because it is not supported by evidence as to when/how often it was cleaned and what that cleaning entailed. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1207 ['if, by the exercise of reasonable care, the [defendant] would have discovered the condition, he is liable for failing to correct it,' and '[w]hether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury'].) Conclusion There is a triable issue as to whether Siemens negligently left the fluid on the floor, and a triable issue as to whether Siemens negligently failed to clean it up. The motion for summary judgment is therefore denied.

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