Judge Michael E. Whitaker, Case 19STCV23916 2022-09-16 Tentative Ruling

Judge: Michael E. Whitaker, Case: 19STCV23916, Date: 2022-09-16 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Jontian Jackson alleges he sustained injuries when he fell into a caisson hole at the construction site of his employer, defendant Pacific Coast Design Group (“PCDG”). Plaintiff fell into the caisson hole while removing the piece of plywood placed over it by PCDG. Defendant Roy Brothers Drilling, Inc. (“RBD”) was subcontracted by PCDG to drill the caisson holes. Plaintiff alleges that, after drilling the caisson holes at the site, RBD left the holes unprotected, unbarricaded, without adequate warning signs or other methods of protecting people from falling into them. (Complaint, p. 4.)

RBD moves for summary judgment on Plaintiff’s complaint. In the alternative, RBD moves for summary adjudication. Plaintiff opposes the motion.

The Court notes that RBD’s notice does not indicate the issue(s) upon which it seeks summary adjudication. Instead, the notice proffers a single issue for which RBD seeks summary judgment.

Where summary adjudication is sought, the notice must specify the “specific cause of action, affirmative defense, claims for damages, or issues of duty sought to be adjudicated.” (Cal. Rules of Court, rule 3.1350, subd. (b).) The Court may not summarily adjudicate claims or defense as to which no triable issue was raised unless requested in the notice of the motion. (Homestead Sav. V. Superior Court (1986) 179 Cal.App.3d 494, 498.) When the notice of motion seeks only summary judgment, the presence of any triable issues requires denial of the motion. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 10:88.)

Here, because RBD’s notice states it seeks summary judgment on a single issue – i.e., that Plaintiff cannot establish one or more elements of his sole cause of action for general negligence - the Court considers the motion as a motion for summary judgment.

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[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.” (Ibid.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

With respect to RBD’s evidentiary objections to the Declaration of Jontian Jackson, the Court rules as follows:

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) “[R]ecovery in a negligence action depends as a threshold matter on whether the defendant had a duty to use due care . . . .” (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 397 [cleaned up].)

“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 [hereafter, “Brown”].) In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

Breach occurs when the defendant’s conduct falls below the standard of care established by law for the protection of others. (Rest.2d Torts, § 282; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 396-397.) The usual standard is what an ordinarily prudent person would do under the circumstances. (Tucker v. Lombardo (1956) 47 Cal.2d 457, 463-464.) While not dispositive, custom and practice in the local business or social community may be considered in establishing a standard of care. (Bullis v. Security Pacific National Bank (1978) 21 Cal.3d 801, 809.) Further, compliance with all safety rules and codes does not establish due care as a matter of law, but may be considered in determining due care. (Amos v. Alpha Property Management (1999) 73 Cal.app.4th 895, 901.)

Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) The doctrine of proximate cause relieves defendants from liability for injuries they, in fact, caused, based on considerations of policy and justice. (Ortega, supra, 26 Cal.4th at p. 1205.) But proximate cause only becomes relevant after it has first been determined that defendant’s conduct was the cause in fact of plaintiff’s injury. (See Rest.2d Torts, § 431, subd. (a).)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].)

Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence. The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)

RBD argues it did not owe a duty to Plaintiff because the contract between RBD and PCDG to perform work at the site explicitly excluded RBD from covering and securing the caisson holes, delegating that responsibility, instead, to PCDG. (Undisputed Material Facts (“UMF”), No. 4.) RBD further asserts that it did not own, operate, maintain, or mange the worksite, and was not present at the worksite at the time of the incident. (UMF, Nos. 6, 12, 13.)

The Court notes that RBD does not advance a copy of the contract between it and PCDG which RBD claims excluded RBD from responsibility for covering and securing the caisson holes after they were drilled. Rather, RBD advances deposition testimony as to the contents of the subject contract, and a different contract between RBD and PCDG for a different worksite, which RBD’s purports to be substantially similar to the contract between the two parties for the worksite in this case. (See Table of Evidence, Exhibits C, D, J.) This evidence is insufficient to prove the contents of the parties’ contract for the subject jobsite – i.e., that RBD’s scope of work for the subject site did not include covering and securing the caisson holes.

Under Evidence Code section 1521, absent the original, the content of a writing may be proved by otherwise admissible secondary evidence unless: (i) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion; or (ii) admission of the secondary evidence would be unfair. (Evid. Code, § 1521, subd. (a); Dart Industries, Inc. v. Commercial Union Insurance Co. (2002) 28 Cal.4th 1059, 1068.)

Under Evidence Code section 1523, “[e]xcept as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.” (Evid. Code, § 1523, subd. (a).)

Oral testimony of the content of a writing may be admissible if the proponent does not have possession or control of a copy of the writing and either (1) the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence; (2) neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means; or (3) the writing is not closely related to the controlling issues and it would be inexpedient to require its production. (Evid. Code, § 1532, subds. (b), (c).)

Here, RBD does not proffer any basis for why the parties’ contract for RBD’s work at the subject worksite was not submitted such that oral testimony would be admissible to prove the content of the writing per Evidence Code section 1532.

RBD’s evidence fails to make a prima facie showing that there is no triable issue of material fact as to whether RBD was contractually excluded from responsibility for covering and securing the caissons at the worksite. Put differently, RPD has failed to establish there is no triable issues of material fact as to UMF Nos. 3 and 4.

In short, RPD failed to meet its burden of production and persuasion, and thus, the Court denies Defendant’s motion for summary judgment.

[1] The Court did not consider Plaintiff’s Sur-Reply as such pleading is not authorized under Code of Civil Procedure section 437c or California Rules of Court, rules 3.1350 – 3.1352. Moreover, Plaintiff failed to obtain leave of the Court to file such pleading.

DEPARTMENT	32
HEARING DATE	September 16, 2022
CASE NUMBER	19STCV23916
MOTION	Motion for Summary Judgment or, in the Alternative, Summary Adjudication
MOVING PARTY	Defendant Roy Brothers Drilling, Inc.
OPPOSING PARTY	Plaintiff Jontian Jackson