Judge Mark C. Kim, Case BC716805 2022-07-26 Tentative Ruling

Judge: Mark C. Kim, Case: BC716805, Date: 2022-07-26 Tentative Ruling

Case Number: BC716805 Hearing Date: July 26, 2022 Dept: S27

1. Background Facts

Plaintiffs filed the instant action on August 9, 2018, against Defendants Ultramar, Inc., Valero Refining Company, Valero Services, Inc., Aggreko PLC, Aggreko LLC, Aggreko North America, Electrical and Instrumentation Unlimited of Louisiana, Inc., and Xenon, Inc. The action arises out of a tragic incident that occurred on June 10, 2017, when Decedent Jason Alexander Sanchez was accidentally electrocuted while he was performing electrical work on an electrical transformer outside the Valero refinery in Wilmington, California. Plaintiffs assert four causes of action: (1) Negligence (under general and per se theories), (2) survival action pursuant to Code of Civil Procedure section 377.70, (3) Strict Products Liability, (4) Negligent Products Liability.

Defendant Aggreko LLC (“Aggreko”) filed the instant motion for summary judgment or, in the alternative, summary adjudication on February 15, 2022, that is the subject of this ruling. In the alternative to summary judgment, Defendant Aggreko seeks summary adjudication separately as to each cause of action asserted in Plaintiffs’ Third Amended Complaint (TAC). No opposition was filed to the motion.

2. Motion for Summary Judgment or Summary Adjudication

a. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

b. Request for Judicial Notice

Defendant Aggreko’s request for judicial notice in support of its motion is denied as moot.

c. Evidentiary Objections

Co-Defendant Ultramar, Inc. raises objections to the Declaration of Roger Wilson and Allan Morrison offered in support of Defendant Aggreko’s motion. Defendant Ultramar, Inc. is neither the moving nor the responding party here, and is not permitted to make evidentiary objections. Thus, the court declines to rule on them.

d. Relevant Facts

Decedent Jason Sanchez was tragically killed in an electrocution accident at a refinery owned by Defendant Valero Refining Company in Wilmington, California, on June 10, 2017, while he was servicing an electrical transformer that was energized with current emitted from an electrical generator supplied by Defendant Aggreko. (Separate Statement, ¶¶ 1, 2, 3.) The accident occurred because the person who hooked up the generator failed to ground it to the neutral bus of the main switchboard. (Separate Statement, ¶ 4.) It was the policy and practice between Valero and Aggreko that the “hook up” procedure of generators rented by Aggreko would be performed by Valero and not by Aggreko, and that is what happened in this instance, as a Valero contractor was responsible for hooking up the Aggreko generator that caused the electrocution. (Separate Statement, ¶¶ 9, 10.) The generator was delivered to Valero two days before the accident and was placed by a delivery driver in a parking lot near the refinery and the driver did not install or hook up the generator. (Separate Statement, ¶ 12.) The evidence offered in support of these statements of fact are the declarations of Alan Morrison, an employee of Aggreko with knowledge of Aggreko’s services for refinery companies like Defendant Valero Refining Company, and Roger Wilson, a professional engineer hired as an expert witness. These declarations support the statements of fact in Defendant Aggreko’s separate statement and are admissible.

e. First Two Causes of Action for Negligence

Defendant Aggreko contends that there is no triable issue of fact as to the negligence causes of action asserted in the TAC because Plaintiffs cannot establish the element of causation necessary to prove their claims. The first and second causes of action asserted in the TAC are based on negligence theories. The first cause of action alleges negligence based upon the failure to properly install the generator, which the TAC argues constituted a breach of the ordinary duty of care as well as several statutes that supply a duty of care under a per se theory. (TAC,¶ 37.) The second cause of action is the same cause of action as the first, asserted by Plaintiffs as successors in interest to Decedent Jason Sanchez.

Four elements are required to successfully plead a negligence cause of action: (1) defendant's legal duty of care to plaintiff; (2) breach of that duty; (3) injury proximately caused by that duty; and (4) damages to plaintiff. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141.)

As to the first two causes of action, which are the same except that the second is asserted by Plaintiffs in their capacities as the decedent’s successors in interest, Defendant Aggreko is entitled to summary adjudication because there is no triable issue as to Defendant Aggreko’s breach of duty. Defendant Aggreko frames the issue as one of causation, but the reason why Aggreko is entitled to summary adjudication is better understood as there being no triable issue of fact as to its breach of duty. Here, there is no triable issue that any action attributable to Defendant Aggreko fell below the standard of care or violated any statute which might substitute for the standard of care. As Defendant Aggreko asserts in its separate statement and supports with admissible evidence, the Aggreko delivery driver left the generator in a parking lot two days before the accident and had no role whatsoever in installing it. (Separate Statement, ¶ 12.) The installation plan was designed by Rodrick Ramirez, an employee of Defendant Xenon, Inc., and was executed by contractors for Defendant Valero Services, Inc. (Separate Statement, ¶¶ 16, 19.) Thus, there is no triable issue of fact that Defendant Aggreko breached its duty of care to the Decedent. No facts alleged in the TAC show that any of Defendant Aggreko’s actions constituted a violation of a statute that could replace the ordinary duty of reasonable care under the circumstances, either, and Plaintiffs failed to file an opposition to argue otherwise. Thus, Defendant Aggreko is entitled to summary adjudication as to the first two causes of action.

As to the fourth cause of action for negligence based on a products liability theory, Defendant Aggreko is not entitled to summary adjudication

f. Product Liability Causes of Action

Plaintiff’s third cause of action is for strict products liability. Generally, to establish a strict products liability claim, the plaintiff must prove that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injuries. (Sherman v. Hennessy Industries, Inc. (2015) 237 Cal.App.4th 1133, 1151 fn. 7.) The fourth cause of sounds in negligence, although the theory asserted is that Defendant Aggreko breached the duty of care by manufacturing a generator that was unreasonably dangerous. A plaintiff may seek recovery in a products liability case either on the theory of strict liability in tort or on the theory of negligence. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478.) Under either a negligence or a strict liability theory of products liability, to recover from a manufacturer, a plaintiff must prove that a defect caused injury. (Id. at 479.)

Here, Defendant Aggreko is not entitled to summary judgment as to either of these causes of action because it fails to make arguments in its motion concerning the alleged defects or lack thereof of the generator that it supplied. Defendant Aggreko asserts in its separate statement that it supplied the generator and that it was electricity from the generator that caused Decedent Sanchez’s death while he was servicing it. (Separate Statement, ¶¶ 3, 4.) All that Defendant Aggreko argues in its motion is that there is no triable issue as to causation for each cause of action. There is no discussion as to whether the generator was or was not designed in a condition that made it defective or that designing it in such a way constituted a breach of the duty of care. It is undisputed that the generator caused Decedent’s death. Whether the generator was designed in an unreasonably dangerous condition, whether it was being used in a reasonably foreseeable way at the time of the accident, and whether Defendant Aggreko exercised due care in the design of the generator are all issues that need to be addressed if Defendant Aggreko were to show that there is no triable issue of fact as to the third and fourth causes of action. The memorandum in support of the motion does not address those issues at all. Neither does the separate statement, on its own, provide obvious inferences that there are no triable issues of fact as to those questions.

Thus, Defendant’s motion for summary adjudication must be denied as to the third and fourth causes of action for strict products liability and negligent products liability.

3. Conclusion

Defendant Aggreko LLC’s motion for summary judgment is DENIED. Defendant Aggreko LLC’s motion for summary adjudication is GRANTED in part and DENIED in part. It is GRANTED as to the first and second causes of action asserted in Plaintiffs’ Third Amended Complaint, and DENIED as to the third and fourth causes of action asserted in Plaintiffs’ Third Amended Complaint. The first and second causes of action for Negligence and “Survival Action Pursuant to Code of Civil Proc. §377.30” are DISMISSED with prejudice as to Defendant Aggrego LLC.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.