Judge: Matthew C. Braner, Case: 37-2022-00036233-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00036233-CU-PO-CTL BALDERAS VS MONTANO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant David Verran's motion for summary judgment is DENIED.

Defendant Rebecca Montano's unopposed motion for summary judgment is GRANTED.

Summary Judgement Legal Standard Summary judgment is appropriate when all the papers submitted by the parties show there is no triable issue of material fact as to any cause of action and the moving party is therefore entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each and every alleged cause of action is without merit. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant can meet that burden by showing one or more elements of each cause of action cannot be established or that there is a complete defense to each cause of action. (Code of Civ. Proc., § 437c, subd. (p)(2).) Defendant Verran's Motion Defendant Verran, a contractor, grounds his motion on the general rule that 'after a contractor ha[s] completed a building and the owner ha[s] accepted it, the contractor [is] not liable to third persons for injury caused by the condition of the work done even though negligent in performing the contract.' (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466; see also Boswell v. Laird (1857) 8 Cal. 469, 498 ['By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties the liability of the contractors has ceased, and their own commenced.'].) In support of his defense, he presents evidence that he was hired by Defendant Montano in 2014 to install laminate flooring on a staircase at her home, this work was completed and accepted by her no later than early 2015, and he was unaware of any issue with his work until 2022, after Plaintiff Humberto Balderas fell while using the stairs and subsequently filed a lawsuit against Defendants. Thus, Defendant Verran contends he owed no duty to Plaintiff to warn him of the purported dangerous condition.

In opposition, Plaintiff does not dispute the facts relied on by Defendant Verran. Instead, he relies on the exception to the general rule, which 'relates to latent defects in the construction of the article or structure in question, the existence of which is known or reasonably should be known to by the contractor.' (Hogan v. Miller (1957) 153 Cal.App.2d 107, 111; see also Johnston v. Long (1943) 56 Cal.App.2d 834, Calendar No.: Event ID:  TENTATIVE RULINGS

3045868  19 CASE NUMBER: CASE TITLE:  BALDERAS VS MONTANO [IMAGED]  37-2022-00036233-CU-PO-CTL 837 ['An exception to the general rule is that the contractor is liable if the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, provided the contractor knows, or should know, of the dangerous situation created by him, and the owner does not know of the dangerous condition or defect and would not discover it by reasonable inspection.'].) As explained by the court in Sanchez, '[t]hat the defect is latent goes to the dangerousness of the condition, for, without knowledge of the defect, one cannot guard against it.' (Sanchez v. Swinerton & Walberg Co., supra, 47 Cal.App.4th at p. 1469.) Thus, the 'latency of the defect remains essential to a contractor's negligent-construction liability after the owner has accepted the structure.' (Id. at p. 1470.) Here, Plaintiff presents evidence Defendant Verran's work fell below the standard of care for contractor's installing laminate flooring. He presents evidence Defendant Verran disregarded the application instructions for ChemRex, the construction adhesive he applied to the underside of the laminate flooring, by using a gun dispenser instead of a notch trowel tool. He presents evidence Defendant Verran violated recognized standards of the National Wood Flooring Association ('NWFA') by failing to apply the adhesive in a continuous minimum ¼ inch-wide uniform bead covering the entire width and length of each plank, to within a minimum of 1' of the edges and ends of each board, and by applying the adhesive in a random pattern instead of using one of the four NWFA recognized patterns (Serpentine, Parallel Stripes, Ends & Grooves, Lengthwise Parallel Stripes). He presents evidence Defendant Verran violated both NWFA and manufacturer standards by covering no more than 50 percent of the flooring with adhesive, instead of the recommended 80 percent minimum.

Plaintiff also presents evidence that Defendant Verran testified he was not aware of any standards regarding the amount of adhesive to apply to laminate flooring, but is aware he has a duty to comply with industry standards, and is aware of the NWFA. Defendant Verran also admitted via deposition testimony that neither Defendant Montano nor any other customer could have known prior to Plaintiff's fall that the flooring on their stairs may break.

Based on the above evidence, Plaintiff contends a dispute of material fact exists as to Defendant Verran's negligence in installing the laminate flooring, and that the alleged defect was necessarily latent and not patent. The court agrees. Both the evidence (including Defendant Verran's admission) and simple logic demonstrate the defect was latent. If the defective condition was a function of improper application of adhesive to the underside of the flooring, the defect would necessarily remain hidden until the adhesion between the subfloor and the laminate planks failed in a situation it would not be expected to fail, as allegedly happened in this case.

Defendant Verran's counterargument lacks merit; indeed, it borders on misrepresentation of the relevant legal authority. As the court in Sanchez, and the extensive caselaw relied on by the Sanchez court, make clear, the most relevant consideration of a contractor's liability following acceptance of his or her work is whether the alleged defect is patent or latent. The exception is not a 'small' carve out, nor does it require the contractor to 'know' of the dangerous condition; it also applies if the contractor 'should know' (i.e., is negligent in not knowing) of the condition. (Johnston v. Long, supra, 56 Cal.App.2d at p. 837; see also Dow v. Holly Mfg. Co. (1958) 49 Cal.2d 720, 725-26 [the contractor is 'in full control of the construction and knows or should know what is being placed in the building[, because] what is placed there is peculiarly within his knowledge, and where, as here, it involves a defective appliance which is covered and hidden by the walls in the course of construction, the responsibility for such defect should rest upon him . . . .'].) Accordingly, Defendant Verran's motion for summary judgment is denied.

Defendant Montano's Motion Given Plaintiff's submission of an opposition to Defendant Verran's motion, the lack of an opposition to Defendant Montano's motion appears intentional. The court will therefore treat the lack of an opposition as a concession by Plaintiff that Defendant Montano's motion has merit. (San Diego Superior Court Local Rule 2.1.19, subd. (B).) Calendar No.: Event ID:  TENTATIVE RULINGS

3045868  19 CASE NUMBER: CASE TITLE:  BALDERAS VS MONTANO [IMAGED]  37-2022-00036233-CU-PO-CTL In addition, Defendant Montano's motion is substantially grounded on her lack of knowledge of the purported defect as to the laminate flooring, and her inability to have discovered the defect due to its latency, and the fact that it did not break until Plaintiff fell. Thus, the undisputed facts reveal that Defendant Montano owed no duty to warn of the allegedly dangerous condition. (See Sanchez v. Swinerton & Walberg Co., supra, 47 Cal.App.4th at p. 1467 ['If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.'].) Accordingly, Defendant Montano's motion for summary judgment is granted.

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