Judge: Mark A. Young, Case: 19STCV43863, Date: 2023-02-10 Tentative Ruling
Case Number: 19STCV43863 Hearing Date: February 10, 2023 Dept: M
CASE NAME: Wabisabi et
al., v. The Abbot Kinney Grill, et al.
CASE NO.: 19STCV43863
MOTION: Jacques
Wylan Plumbing Inc.’s Motion for Summary Judgment and/or Adjudication
HEARING DATE: 2/10/2023
Legal
Standard
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“A party may move for summary adjudication as
to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that
one or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary
adjudication as an alternative to a request for summary judgment, the request
must be clearly made in the notice of the motion. (Gonzales v. Superior
Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to” subdivision (t).
(CCP, § 437c(t).)
To
prevail, the evidence submitted must show there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP, § 437c(c).) The motion cannot succeed unless the
evidence leaves no room for conflicting inferences as to material facts; the
court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when a material fact is the witness’s state of
mind and “that fact is sought to be established solely by the [witness’s]
affirmation thereof.” (CCP, § 437c(e).)
Once
the moving party has met their burden, the burden shifts to the opposing party
“to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish
anything by affidavit unless and until the moving party has by affidavit stated
facts establishing every element... necessary to sustain a judgment in his
favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary
judgment motion. The function of the pleadings in a motion for summary judgment
is to delimit the scope of the issues and to frame the outer measure
of materiality in a summary judgment proceeding.” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations
and citations omitted.) “Accordingly, the burden of a defendant moving for
summary judgment only requires that he or she negate plaintiff's theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in the
pleadings.” (Ibid.)
EVIDENTIARY ISSUES
Jacques Wylan Plumbing Inc.’s (JWP) request for judicial
notice is GRANTED. (Evid. Code § 452(d).)
Wabi Plaintiffs’ objections to Exhibit P is SUSTAINED on
hearsay grounds.
The Court concurs that TOPA’s joinder to the separate
statement does not strictly comply with the separate statement requirements.
Thus, the Court could treat the motion as unopposed regarding TOPA’s complaint.
However, the Court will consider the opposition despite this defect. Otherwise,
JWP’s objections to TOPA’s evidence are OVERRULED.
JWP’s objections to the evidence submitted by Wabi
Plaintiffs are SUSTAINED as to nos. 4 (hearsay), 7 (legal conclusion), 9 (same).
The remainder are OVERRULED.
Analysis
JWP moves for summary
judgment/adjudication of each cause of action alleged against it. This includes
the Wabi Plaintiff’s Fourth Amended Complaint (4AC) with causes of action for Negligence,
Premises Liability, Private Nuisance, and Trespass); Plaintiff TOPA’s complaint
for Negligence; and the Abbot Kinney Grill’s cross-complaint for Negligence,
Implied Indemnity, Contribution and Indemnity, and Declaratory Relief.
Causation
In their motion for summary
judgment, JWP principally attacks the element of causation, arguing that the
undisputed evidence shows that their conduct did not substantially contribute
to the fire. To prove a cause of action
for negligence, a plaintiff must show (1) a legal duty owed to plaintiffs to
use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County
of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.)
A defendant’s negligence is the actual cause of the plaintiff’s injury if it is
a “substantial factor” in bringing about the harm. (Mitchell v. Gonzales
(1991) 54 Cal.3d 1041, 1052-53.) “‘If
the conduct which is claimed to have caused the injury had nothing at all to do
with the injuries, it could not be said that the conduct was a factor, let
alone a substantial factor, in the production of the injuries.’” (Id.) While breach of duty and
causation are ordinarily questions of fact, they can be questions of law if the
material facts show lack of breach or causality. (See Constance B. v. State
of California (1986) 178 Cal.App.3d 200, 207.)
The elements of a cause of action
for premises liability are the same as those for negligence: duty, breach, causation,
and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998
“Those who own, possess, or control property generally have a duty to exercise
ordinary care in managing the property in order to avoid exposing others to an
unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014)
232 Cal.App.4th 32, 37.) To impose liability for a dangerous condition, defendant
must have either actual or constructive knowledge of the dangerous condition or
have been able to discover the condition by the exercise of ordinary care. (Squillante
v. Barr (1955) 131 Cal.App.2d 175, 178-79.) “Whether a dangerous condition has
existed long enough for a reasonably prudent person to have discovered it is a
question of fact for the jury.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th
1200, 1207.)
A cause of action for private
nuisance requires the plaintiff to show an injury specific to the use and
enjoyment of his land. (Adams v. MHC Colony Park Limited Partnership
(2014) 224 Cal.App.4th 601, 610.) Virtually any disturbance of the enjoyment of
property may amount to a nuisance, so long as the interference is substantial
and unreasonable. (Monks v. City of Rancho Palos Verdes (2008) 167
Cal.App.4th 263, 302; see Civ. Code, § 3479.) A nuisance claim is a negligence
claim if the negligence and nuisance causes of action rely on the same facts
about lack of due care. (Melton v. Boustred (2010) 183 Cal.App.4th 521,
542.)
The elements of a common law
trespass are (1) the plaintiff’s ownership or control of the property; (2) the
defendant’s intentional, reckless, or negligent entry on the property; (3) lack
of permission to enter the property, or acts in excess of the permission; (4)
actual harm; and (5) the defendant’s conduct as a substantial factor in causing
the harm. (Martin Marietta Corp. v. Insurance Co. of North America
(1995) 40 Cal.App.4th 1113, 1131 – 1132; Fibreboard Corp. v. Hartford
Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 511-512.)
Equitable indemnity “‘is premised
on a joint legal obligation to another for damages,’ but it ‘does not
invariably follow fault.’ [Citation.]” (Prince, supra, 45 Cal. 4th at 1158.)
The elements of a cause of action for [equitable] indemnity are (1) a showing
of fault on the part of the indemnitor and (2) resulting damages to the
indemnitee for which the indemnitor is ...equitably responsible. (C.W. Howe
Partners Inc. v. Mooradian (2019) 43 Cal. App. 5th 688, 700.) Logically, no
indemnity may be obtained from an entity that has been found not to be
responsible for the injury. (Children’s Hospital v. Sedgwick (1996) 45
Cal. App. 4th at 1780, 1787; BFG Architects Planners, Inc. v. Forcum/Mackey
Construction, Inc. (2004) 119 Cal. App. 4th 848, 852 [“there can be no
indemnity without liability.”].)
Pertinent Allegations
The Wabi Plaintiffs’ operative 4AC
alleges “as part of the commercial kitchen renovations, [JWP] was hired by The
Tasting Kitchen, and/or MMLK, and/or Ocean Construction, and was responsible
for various construction tasks and performed work at the Subject Property,
including, but not limited to, the following construction related tasks
pertinent to this action:
a. disconnecting various cooking
equipment, including gas powered cooking equipment so that it could be stored
during construction;
b. re-installing various cooking
equipment, including gas powered cooking equipment, after the kitchen
renovations were allegedly complete;
c. Providing/installing gas, water
and indirect waste lines to install a new gas powered pasta cooker in the
commercial kitchen;
d. disconnecting old kitchen
griddles several weeks after the restaurant’s reopening and then installing new
kitchen griddles thereafter; and
e. relocating waste lines and vent
lines.”
(4AC ¶ 61.)
In addition, JWP “negligently
and/or recklessly disconnected and reinstalled various gas-powered cooking
equipment in the commercial kitchen, installed gas, water, and indirect waste
lines to gas-powered cooking equipment, and disconnected and installed kitchen
griddles, all of which contributed to the impediment of heat and flammable
substances from being properly exhausted/vented from the cooking equipment
and/or commercial kitchen. On information and belief, this work, which was
performed in part after the restaurant was reopened and the commercial kitchen
was being used violated various California codes, including but not limited to,
Building, Fire, Mechanical, and Retail Food code requirements, created a fire
hazard, and impeded the necessary and required rate of air movement to keep the
Subject Property safe.” (4AC ¶ 64, emphasis added.)
Wabi’s 4AC further alleges that on
December 12, 2018, “a fire originated inside the Subject Property as a result
of each of the Defendants’ negligent and/or reckless conduct identified above
and herein. [JWP]’s independent conduct, actions, and omissions identified
above and herein each contributed to and were a substantial factor in causing
the fire. The fire penetrated into Plaintiffs’ restaurant and destroyed it.”
(4AC ¶ 69.) JWP “controlled the Subject Property including the cooking
equipment and other equipment and improvements located at the Subject Property…
insofar as its control of the areas of the Subject Property it performed work
during the time it performed such work.” (4AC ¶ 80(d).) The Wabi Plaintiffs reiterate
these same basic allegations as to each cause of action.
TOPA’s complaint alleges negligence
against JWP. They allege “Defendants acted negligently and carelessly so as to
cause a fire at the Tasting Kitchen, and to cause the fire to spread beyond the
Tasting Kitchen. The negligence and carelessness included without limitation
improper installation of kitchen fixtures and equipment that improperly allowed
gaps and/or penetrations in the wall near cooking equipment so that heat from
the cooking equipment ignited combustible materials and spread to the Injured
Property.” (TOPA Compl., ¶ 25.) Defendants’ negligence was a substantial factor
in the fire that spread from the Tasting Kitchen to the Injured Property
causing substantial damage. (Id., ¶ 26.)
Cross-Complainant the Abbot Kinney
Grill LLC’s cross-complaint alleges that JWP owed a duty to properly performing
the various construction work at the subject property. (CC ¶15.) JWP breached their duty to Abbot Kinney Grill
by failing to act reasonably within the circumstances giving rise to this
action, including but not limited to the performance of various construction
work at the subject property. (CC ¶16.) As such, Abbot Kinney Grill alleges
that JWP’s negligence was a direct,
proximate and legal cause of the injuries sustained by Cross-Complainant, and
for which Plaintiffs have named Cross-Complainant in the underlying Lawsuit.
(CC ¶17.) Abbot Kinney premises the indemnity and declaratory relief causes on
the same allegations. (See CC ¶¶ 20-32.)
JWP’s Burden on Summary Judgment
JWP presents evidence regarding
their responsibilities and work performed for the renovations. In the fall of
2018, The Tasting Kitchen (TKK) hired Ocean Construction as the general
contractor to perform construction improvements at the Property. (UMF No. 13.)
TKK shut down in November and December 2018 for renovations and building
maintenance. (UMF No. 15.) This first phase of the project, between November
and December 2018, focused solely on renovations to the kitchen, including but
not limited to the plumbing, flooring and walk-in refrigerator. (UMF No. 16.)
JWP submitted a proposal to Ocean on
October 30, 2018, for the plumbing work that was to be performed at the Subject
Property. (UMF No. 17.) On November 15, 2018, Ocean authorized JWP to provide
labor, materials and equipment necessary for the installation of a complete
plumbing system, including furnishing and installing new plumbing fixtures and
trim including connection of new waste, vent and water piping to existing
services. (UMF No. 18.) On November 20, 2018, JWP submitted a change order to
provide gas, water and indirect waste lines to the nearest floor sink to the
new pasta cooker at the end of the cook line, provide a new stainless steel mop
sink, re-run hot water through the second story down, disconnect old griddles
and install two near griddles two weeks after reponing due to lead time, and
install new sewer plumbing line. (UMF No. 20.) The water lines were replaced as
they were dated and falling apart. (UMF No. 21.) The gas and water lines that
were installed by JWP for the new pasta cooker were connected to the
preexisting gas and water lines that ran behind the line. (UMF No. 22.)
For this work, all the kitchen
equipment and flooring had to be removed, including four stoves, one grill, a
few tables, three refrigerated units, pre units, metro shelving units, metal
tables, a fryer and the dishwashing machine. These were removed by the company
that TKK leased the machine from. (UMF No. 23.) TKK's kitchen equipment was
stored in the bar area of the restaurant during the November 2018 renovations,
wherein TKK employees and kitchen staff cleaned the equipment. (UMF No. 24-25.)
Prior to opening on December 3, 2018, all the kitchen equipment was put back
into place. (UMF No. 26.) Most of the kitchen equipment that was removed was
replaced, except for two stoves that needed to be replaced in tandem as one of
them had salt corrosion. (UMF No. 27.) TTK had also purchased a new pasta
cooker that was placed in the kitchen upon reopening. (UMF No. 28.) The pasta
cooker was installed by TKK's third-party equipment installer in collaboration
with JWP. (UMF No. 29.)
JWP presents evidence of the cause
of the fire. It is undisputed that in the early morning on December 12, 2018,
at approximately 5:41 a.m., there was a fire at the Premises. The fire
“originated within the interstitial wall space that separates the Wabi Sabi
Restaurant from the adjacent Tasting Kitchen Restaurant….” (UMF No. 49.) The
examination of the debris and the back side of metal panels associated with the
TKK’s kitchen revealed “distinctive oxidation on the back side of the panel and
vertical wood wall studs consumed around the oxidation pattern.” (UMF No. 50.)
Heat conducted through the stainless metal paneling through the metal screws
that had attached to a metal shelf unit above the commercial stove. This heat
conducted through the metal screws heated the wood construction within the
interstitial wall space, thereby causing the fire incident. (UMF No. 51
[Plaintiffs’ Ex. 4 essentially concurs with this point].) Multiple experts
agree that the cause of the fire was due to a long-term, low temperature
heating event, which resulted from heat from the cooking equipment in the
Tasting Kitchen “impinging on the stainless-steel splash panels and metal shelf
unit” conducting through metal screws lines that penetrated the interstitial
wall space to the wood construction between the gypsum boards. (UMF No. 52-55.)
Notably, the area involved with the
fire is directly behind the cooking appliances and at approximately the same
height as the heat sources. (UMF no. 56.) There were no gas lines observed
within this area of the wall. (UMF No. 57.) There are no fire patterns on the
appliances which would demonstrate the fire started in the kitchen and spread
into the wall. (UMF No. 58.) The gas lines and gas line connections appeared to
be intact without any visible fire patterns or sustained fire damage. (Id.) An
expert found no evidence that the gas and plumbing connections made by JWP
contributed to the cause of this fire. (UMF No. 60.) According to the evidence,
a fire caused by a failed gas connection inside of Tasting Kitchen would leave
fire patterns on items in the general vicinity of the fire; however, there were
no items around the gas connections that had such fire patterns on them. (UMF
No. 61.)
Critically, JWP presents evidence
that it was not responsible for, and did not perform any work on, the metal
shelving or stainless-steel backing near the stoves of the commercial kitchen
at TTK. (UMF No. 19, 38.) The metal shelving was improperly installed, removed
and re-installed by the stainless fabricator/installer. (UMF No. 30.) When the
shelves were being reinstalled in December 2018, the shelves were moved up from
their original location as the new floor was taller and the height of the
shelves needed to be readjusted. (UMF No. 31.) This decision to adjust the
height of the shelves was a collaborative decision between TKK and Ocean. (UMF
No. 32.) The stainless backing wherein the shelves were attached to was not
removed during the renovation. (UMF No. 34.) JWP was not contracted to perform
nor did actually perform any work with the stainless-steel shelving or the
stainless steel wall covering. (UMF No. 38.) Furthermore, JWP did not make the
decision to reopen TKK. (UMF No. 40.)
As set forth in their papers and
supporting evidence, JWP did not affect or control the source of the fire
leading to the conclusion that JWP’s conduct did not contribute to the fire,
and that JWP did not control the relevant portion of the property that led to
the fire. Such evidence would defeat causation. Therefore, JWP meets its burden
of production as to the issue of causation.
Plaintiffs’ Burden
The Wabi Plaintiffs and TOPA both
oppose on the same set of facts and arguments. They argue that the following
material disputes of fact exist defeating summary judgment: (1) whether JWP
completed its work in November of 2018 (UMF No. 19 & 35); (2) whether the
kitchen equipment was installed and/or reinstalled prior to the Tasting
Kitchen’s reopening (UMF No. 26); (3) whether the work by JWP occurred between
December 3 and the Tasting Kitchen’s reopening (UMF No. 39); (4) whether
inspection of JWP work or any work on the concrete slab project as a whole at
the Tasting Kitchen took place before the outbreak of the fire (UMF No. 41);
and (5) whether shelve screws and/or holes in the wall where the fire occurred
transmitted heat into the wall’s interior (UMF Nos. 51, 52 & 54).
Here, the Court does not believe
that the alleged plumbing or building code violations create a dispute of material
fact as to causation. While these codes would be useful for establishing
whether JWP’s conduct fell below a standard of care, a violation of such codes
does not, per se, create causation. To show actual causation, Plaintiffs would
require evidence that JWP’s conduct contributed to the cause of the fire. Merely
citing code violations (even if such codes are designed to prevent fires) does
not demonstrate that JWP’s conduct caused the fire. Plaintiff would need to
produce evidence that JWP’s actions or their control caused the fire, not whether
JWP’s renovations violated building codes. Likewise, Plaintiff’s evidence that
the restaurant was prematurely opened, or that JWP’s renovations occurred prior
to the fire, is not specific and substantial evidence that would demonstrate JWP’s
conduct substantially contributed to the fire.
In their opposition, Plaintiff Wabi
attempts to dispute the origin, cause of the fire was that the heat transmitted
via shelf screws and/or holes in the wall where the fire occurred had conducted
into the wall’s interior. (UMF Nos. 51, 52 & 54.) Even if the Court ignored the fact that
Plaintiff’s evidence agrees that the shelf screws were the cause of the fire, this
is not specific and substantial evidence that JWP’s conduct contributed to the
fire.
Plaintiffs also rely on the
speculative theory that if JWP had requested an inspection of their work as
required, and that inspection occurred prior to the re-opening of the
restaurant (PAMF no. 36), and that inspector happened to notice the holes during
that unrelated inspection (PAMF No. 34, 35, 40), that perhaps the fire
would have been prevented. Plaintiffs also speculates that JWP might have
caused the fire since they performed work adjacent to and on the same wall
where the fire started. (PAMF Nos. 12, 13, & 14.) Even liberally construed,
this is not specific and substantial evidence that JWP had control of, or
contributed to, the existence the subject holes. This does not dispute that JWP
had the duty or ability to correct the screw/hole issue. The above undisputed
evidence shows that the decision and installation of the stainless-steel sheet
was by TTK, Ocean, and another contractor. Thus, the Court cannot view this
purported omission as a “substantial” contribution to the fire.
For these reasons,
there is no dispute of material fact that JWP’s conduct did not contribute to
the alleged fire. Each of the causes of action in Wabi’s 4AC, TOPA’s complaint,
and Abbot Kinney’s cross-complaint sound in negligence and requires causation,
or are causes of action dependent on liability for negligence. As such, JWP’s
motion for summary judgment is GRANTED as to the Wabi Plaintiff’s 4AC,
Plaintiff TOPA’s Complaint, and Cross-Complainant Abbot Kinney’s
Cross-Complaint.