Judge: Olivia Rosales, Case: BC719558, Date: 2022-08-09 Tentative Ruling

Case Number: BC719558    Hearing Date: August 9, 2022    Dept: SEC

ALCALA v. PERFORMANCE TEAM LLC, et al.

CASE NO.:  BC719558

HEARING: 8/9/22 @ 1:30 PM

JUDGE:  RAUL A. SAHAGUN

 

#4

TENTATIVE RULING

 

Defendant Jay R. Smith Mfg. Co.’s motion for summary judgment or, in the alternative summary adjudication is GRANTED.

 

Moving Party to give NOTICE.

 

Defendant Jay R. Smith Mfg. Co. (“Smith”), named as Doe 73, moves for summary judgment or alternatively, for summary adjudication pursuant to CCP § 437c.

 

EVIDENTIARY RULINGS

 

Alcala’s Objection Nos. 5-8 are overruled.

 

PLEADING

 

Plaintiff Armando Alcala alleges that on June 21, 2018, Plaintiff was hired to clean solar panels on the roof of a warehouse.  While performing the work, Plaintiff fell down through one of the skylights, which was a dangerous condition for lack of guiderails, warnings, or other mandatory safety precautions.  Based thereon, Plaintiff asserts causes of action for:

 

1.    Premises Liability (v. Performance Team, Golden Springs, Thrifty Oil)

2.    General Negligence (v. Performance Team, Golden Springs, Thrifty Oil, Advanced Restoration)

3.    Lab. Code 3700 (v. Advanced Restoration)

4.    Strict Liability (v. Arcalight and Does 71-100)

5.    Breach of Implied Warranty (v. Arcalight and Does 71-100)

 

Subsequently, Jay R. Smith Mfg. Co. was named as Doe 73.

 

STANDARD

 

A 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. (CCP § 437c(p)(2).) 

 

ISSUE 1

 

4th cause of action for STRICT LIABILITY:

 

Smith contends it is entitled to summary adjudication of the 4th cause of action because Smith owed Plaintiff no duty; Plaintiff cannot establish causation; Smith had no duty to warn of known or obvious dangers; and Smith did not manufacture the subject skylight.

 

DUTY:  Courts consider the following factors when determining whether a duty exists: 1) the foreseeability that the conduct at issue would result in harm to the plaintiff; 2) the closeness of the connection between the defendant's conduct and the injury suffered; 3) the moral blame attached to the defendant's conduct; 4) the policy of preventing future harm; 5) the burden on the defendant and on the community of imposing the duty; 6) the cost and availability of insurance to cover the liability associated with the proposed duty; 7) the certainty that plaintiff suffered an injury; and 8) the consequences to the community of imposing such a duty. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

 

A skylight manufacturer “owe[s] no duty of care to protect against the innumerable unforeseeable risks surrounding the accidental misuse of its product…. As a matter of law, we conclude the risk of harm to Romito was not reasonably foreseeable for reasons of policy, thus negating any duty of care.”  (Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 68.)

 

Smith submits the following evidence:

 

·        On June 21, 2018, Plaintiff was performing work washing solar panels on the roof of the premises located at 12816 Shoemaker Avenue, Santa Fe Springs, CA 90670, when he fell through a skylight.  (Defense Separate Statement (DSS) 1.)

·        Plaintiff’s job was to feed the hose to make sure that it did not get tangled in between the solar panels and skylights. (DSS 3.)

·        Plaintiff was told by his employer “to not get near the skylights.”
(DSS 4.)

·        Plaintiff admitted that he was concerned about the presence of the skylights. (DSS 5.)

·        Plaintiff did not ask anyone to implement safety measures on the roof, and he did not hear anyone else ask Advanced Restoration Group for safety precautions. (DSS 6.)

·        At the time of Plaintiff’s fall, he had not been provided with fall protection equipment or training while working on the roof. (DSS 7.)

·        The purchase order (the “Purchase Order”) produced in this case indicates—but does not prove—that subject skylight through which Plaintiff fell (the “Skylight”) was ordered from TriStar Skylights on April 20, 2000. (DSS 12.)

·        Nearly 20 years have passed between the date of the Purchase Order and Plaintiff’s fall through the Skylight, so it is unclear whether the original skylights in the Purchase Order include the exact same, unaltered, unmodified Skylight through which Plaintiff fell. (DSS 13.)

·        Even assuming the Skylight was a TriStar product, Smith did not produce Tristar Skylights in April of 2000. (DSS 14.)

·        Smith’s principal manufacturing facility has been located in Alabama since
the late 1970’s. (DSS 15.)

·        On December 1, 1999, Smith stopped manufacturing TriStar Skylights, which were instead manufactured and sold by Potter Roemer. (DSS 19.)

·        Smith offered the TriStar brand of skylights to the market from May 30, 1997, until December 1, 1999. (DSS 20.)

·        There are no Smith internal records relating to the Purchase Order. (DSS 21.)

·        Potter Roemer was a separate entity from Smith on the date of the Purchase Order on April 20, 2000, and Smith was not manufacturing or selling the TriStar-brand skylights on April 20, 2000. (DSS 22.)

·        Smith never had any control over, nor involvement in, the design, plan, or construction of the building where the accident occurred (“the Building”), including the roof. Smith had no control over nor involvement in the choice of skylights to be placed on the roof, the number of skylights, the location of skylights, or the painted color of the roof. (DSS 23.)

·        At no time did Smith own or control the Building, including the roof. At no time did Smith control access to the roof of the Building. (DSS 24.)

·        At no time did Smith perform any maintenance, repair or installation of the Skylight or any other skylights located on the Building, nor was Smith ever asked to do so. (DSS 25.)

·        At no time did Smith have any control over or involvement in the decision whether to install or not install screens, bars, rails, netting, or any other safety precautions on top of or below the Skylight or any other skylights on the Building. (DSS 26.)

·        At no time did Smith have any control over or involvement in the choice of contractors performing work on the roof nor supervision over any safety measures taken by the contractors and their employees. (DSS 27.)

·        Smith had no control over or involvement in any training of any employees performing work on the roof, the skill level of the employees, nor whether any safety precautions were exercised by employees, including Plaintiff’s lack of use of fall protection. (DSS 28.)

·        Smith had never met or interacted in any way with Plaintiff Armando Alcala or his employer Advanced Restoration Group prior to this lawsuit. (DSS 29.)

 

In opposition, Plaintiff submits the following evidence:

 

·        On June 21, 2018, Plaintiff was lawfully present at the subject premises located at 12816 Shoemaker Avenue, Santa Fe Springs, CA 90670. (Plaintiff’s Separate Statement (PSS) 1)

·        At the time of the incident, the subject premises was owned by Golden Springs Development Company (PSS 2) and leased to Performance Team (PSS 5-6).

·        Golden Springs Development Company contracted with Advanced Restoration Group for a project to clean the solar panels on the roof of the warehouses located at the subject premises. (PSS 3)

·        Plaintiff was hired by Advanced Restoration Group to assist with the project. (PSS 4)

·        On the date of the incident, Plaintiff fell through the skylight on the roof of the building leased by Defendant Performance Team. (PSS 7)

·        The skylight which Plaintiff fell through, did not have any guiderails around it. (PSS 8)

·        The skylight which Plaintiff fell through, did not have any warning signs around it. (PSS 9)

 

Based on the evidence submitted, the court finds, as a matter of law, that Defendant Smith owes no duty to Plaintiff Alcala.

 

In Romito v. Red Plastic Co., an electrician was working on the roof of a building that contained a row of plastic skylights manufactured by Defendant Red Plastic Company, Inc.  The electrician did not wear any safety lines.  As he was pulling on a cable, the cable broke, and the electrician fell backwards through a skylight.  The trial court granted summary judgment and the Court of Appeal affirmed.  The court of appeal held, “We conclude Dur-Red owed no duty of care to protect against the innumerable unforeseeable risks surrounding the accidental misuse of its product…. As a matter of law, we conclude the risk of harm to Romito was not reasonably foreseeable for reasons of policy, thus negating any duty of care.”  (Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 68.)

 

“Dur-Red's ability to prevent future harm is limited by its total lack of control over various external factors affecting the risk of harm. Those factors include, for example, the roof's design, the layout and installation of the skylights, the roof's accessibility to the public, the presence of screens or rails around the skylight, the training, skill, and safety equipment used by workers coming near the skylight, and the maintenance of the skylight and surrounding area. In this case, Dur-Red simply filled and delivered an order for 12 skylights, exercising no control over the circumstances of Romito's accidental fall through a skylight 3 years later. Romito's failure to tie himself to a safety line cannot be attributed to Dur-Red.”  (Romita, supra 38 Cal.App.4th 66-67.)

 

Similarly, here, Plaintiff was working on the roof of a building when he fell through a skylight allegedly manufactured by Smith.  It is undisputed that Plaintiff was told by his employer “to not get near the skylights.”  (Undisputed DSS 4.)  It is undisputed that Plaintiff did not ask anyone to implement safety measures on the roof (DSS 6) and Plaintiff had not been provided with fall protection equipment or training while working on the roof. (Undisputed DSS 7.)  It is undisputed that nearly 20 years have passed between the date of the Purchase Order and Plaintiff’s fall through the Skylight, so it is unclear whether the original skylights in the Purchase Order include the exact same, unaltered, unmodified Skylight through which Plaintiff fell. (Undisputed DSS 13.)  It is also undisputed that Smith never had any control over, nor involvement in, the design, plan, or construction of the building where the accident occurred, including the roof; Smith had no control over nor involvement in the choice of skylights to be placed on the roof, the number of skylights, the location of skylights, or the painted color of the roof (Undisputed DSS 23); Smith did not own or control the Building, including the roof or access to the roof (Undisputed DSS 24); Smith did not perform any maintenance, repair or installation of the Skylight or any other skylights located on the Building, nor was Smith ever asked to do so. (Undisputed DSS 25); Smith had no control over or involvement in the decision whether to install or not install screens, bars, rails, netting, or any other safety precautions on top of or below the Skylight or any other skylights on the Building (Undisputed DSS 26). It is also undisputed that Smith had no control over or involvement in the choice of contractors performing work on the roof nor supervision over any safety measures taken by the contractors and their employees (Undisputed DSS 27);  Smith had no control over or involvement in any training of any employees performing work on the roof, the skill level of the employees, nor whether any safety precautions were exercised by employees, including Plaintiff’s lack of use of fall protection (Undisputed DSS 28); and Smith had never met or interacted in any way with Plaintiff Armando Alcala or his employer Advanced Restoration Group prior to this lawsuit (Undisputed DSS 29.)

 

The only relevant evidence offered in opposition is that the skylight did not have any guiderails around it (PSS 8) and did not have any warning signs around it (PSS 9).

 

This evidence does not create a triable issue.  Plaintiff admits that Smith had no control over rails or any other safety precautions on top of or below the skylight.  (See Undisputed DSS 26.)

 

Further, over 20 years have passed since the installation of the skylights.  Like the skylight manufacturer in Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, Smith had no control over the various external factors affecting the risk of harm, like the roof’s design, maintenance of the roof, the presence of rails or warnings around the skylight, training workers coming near the skylight, or Plaintiff’s own failure to tie himself to a safety line.  Accordingly, the court finds that Smith owed “no duty of care to protect against the innumerable unforeseeable risks surrounding the accidental misuse of its product” and the “risk of harm to [Plaintiff Alcala was] not reasonably foreseeable for reasons of policy.”  (See Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 68.)

 

Plaintiff makes no effort to distinguish Romito in its Opposition.

 

The court further finds that there is no duty to warn of open and obvious conditions.  (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1304; see also Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 448.)  Plaintiff admitted that he was aware of the skylights (Undisputed DSS 5) and his employer told him “to not get near the skylights.” (Undisputed DSS 4.)  Nonetheless, Plaintiff did not ask anyone to implement safety measures on the roof, and he did not hear anyone else ask Advanced Restoration Group for safety precautions. (DSS 6.)

 

As the court finds that Smith owed no duty, any analysis as to causation or the manufacturing status of Smith is moot.

 

Accordingly, summary adjudication of Issue 1 is GRANTED.

 

ISSUE 2

 

5th cause of action for BREACH OF IMPLIED WARRANTY:

 

Smith contends it is entitled to summary adjudication of the 5th cause of action because there is no vertical privity between Plaintiff and Smith.

 

In order to prevail on a breach of implied warranty theory, Plaintiff must demonstrate that the product was not fit for its ordinary intended use.  (See CACI 1231(3).)  Moreover, “vertical privity is a prerequisite for recovery on a theory of breach of the implied warranties of fitness and merchantability.”  (United States Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441; see also Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 500 - “[P]rivity between the plaintiffs and defendants remains a requirement for actions based upon the implied warranty of merchantability...as well as the implied warranty of fitness”; All West Electronics, Inc. v. M-B-W, Inc. (1998) 64 Cal.App.4th 717, 725 - “Privity of contract is a prerequisite in California for recovery on a theory of breach of implied warranties of fitness and merchantability.”)

Smith presents evidence that there is no relationship, contractual or otherwise, between Plaintiff Alcala and Defendant Smith.  Smith had never met or interacted in any way with Alcala or his employer Advanced Restoration Group prior to this lawsuit. (Undisputed DSS 29.)

 

Plaintiff does not make any argument in opposition to Issue 2 and did not offer any evidence to establish a triable issue as to vertical privity.

 

Accordingly, summary adjudication of Issue 2 is GRANTED.

 

As no triable issues remain, summary judgment is GRANTED.