GT’s Living Foods, LLC fka Millennium Products, LLC, v. Air Control Systems, Inc., et al.

PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION AS TO AIR CONTROL SYTEMS, INC.’S SECOND AND FOURTH AFFIRMATIVE DEFENSES

 

MOVING PARTY: Plaintiff GT’s Living Foods, LLC

RESPONDING PARTY(S): Defendant Air Control Systems, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff GT’s Living Foods, LLC, formerly known as Millennium Products, LLC, is a producer and supplier of kombucha. Plaintiff alleges it contracted with Defendant Fullmer Construction, as general contractor, to design and build tenant improvements at Plaintiff’s property. Fullmer then entered into a subcontract with Defendant Air Control Systems, Inc., for the design and build of the HVAC system. Plaintiff alleges the completed HVAC system could not withstand the highly corrosive environment necessary for kombucha production, resulting in rusting and corrosion. Plaintiff brings this action for breach of contract, breach of implied warranty, and negligence. 

Plaintiff now moves for summary adjudication of Defendant Air Control Systems, Inc.’s Second (contributory/comparative negligence) and Fourth (assumption of risk) affirmative defenses.  Defendant opposed.

TENTATIVE RULING:

Plaintiff’s Motion for Summary Adjudication of Defendant’s Second Affirmative Defense (comparative negligence) is DENIED.

Plaintiff’s Motion for Summary Adjudication of Defendant’s Fourth Affirmative Defense (assumption of risk) is GRANTED.

Moving party is ordered to give notice, unless waived.  

DISCUSSION:

Motion for Summary Adjudication

I. Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Defendant’s objections numbered 1 through 8 are OVERRULED.

Plaintiff objects to portions of the declaration of Terry Stack, Defendant’s counsel.  Portions of the declaration are arguably objectionable based on the declarant’s lack of personal knowledge. However, because this evidence is not material to the disposition of the motion, the court will not rule on the objections.  [FN 1] 

II. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. 

A party may move for summary adjudication as to one or more affirmative defenses if the party contends that there is no merit to an affirmative defense as to any cause of action. (CCP § 437(f)(1).) A motion for summary judgment should be granted only if it completely disposes of an affirmative defense. (§ 437(f)(2).)

III. Analysis

A. Second Affirmative Defense for Comparative/Contributory Negligence

First, Plaintiff moves to summarily adjudicate Defendant’s Second Affirmative Defense for comparative negligence.  [FN 2]

In California, where a plaintiff's conduct is a substantial factor in causing the plaintiff's injury, courts use comparative fault principles to apportion responsibility for the injury. (See, e.g., Li v. Yellow Cab Company of California (1975) 13 Cal.3d 804, 829 [“[I]n all actions for negligence resulting in injury to person or property, the contributory negligence shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”].)

Plaintiff argues that ACS, and not Plaintiff, had the duty to not negligently design and construct the mechanical scope of the project. “The only duties that existed with respect to the design and build of the mechanical scope were owed by ACS,” Plaintiff argues, and “Plaintiff cannot be required to have had a duty to make sure that ACS did not do its work negligently.” (Mtn. 6: 17-19.) 

Plaintiff presents evidence that ACS knew that its work would serve the operations of fermenting the kombucha product, and ACS was told about the “corrosive”, “highly acidic”, and humid environments that occur with fermenting the kombucha product. (SSUMF 8–10). Despite that knowledge, Defendant allegedly failed to design the HVAC to withstand those elements. 

In opposition, Defendant argues a triable issue of material fact exists on the comparative negligence affirmative defense. Defendant contends that Plaintiff dictated the design for the heater system and directed ACS to mimic and replicate the heater systems from its other facilities. (SSADMF 1.) Defendant also contends that Plaintiff withheld the details of its fermentation process, including its corrosive nature, under the guise of a “trade secret.” (SSADMF 2).

Here, the disputed evidence suggests that Plaintiff informed Defendant of the acidic or corrosive nature of its product—and thus, Defendant was on notice of the need to design an HVAC system that could withstand those elements. Plaintiff also insisted, however, that Defendant conform the HVAC design to that used in its other production facilities—which in Plaintiff’s view, were working as intended. Thus Plaintiff, as the expert on its production process, was engaged in the design process and steered the design toward the systems it already had in place and was familiar with. 

This adequately demonstrates a triable issue of material fact as to whether Plaintiff was also negligent in its handling of the design process. In finding a triable issue of material fact, this court is mindful that it must “liberally construe the evidence in support of the party opposing summary judgment and resolve any doubts concerning the evidence in favor of that party.” (Medina v. Equilon Enterprises, LLC (2021) 68 Cal. App. 5th 868, 874.) 

Accordingly, Plaintiff’s Motion for Summary Adjudication of Defendant’s Second Affirmative Defense is DENIED. 

B. Fourth Affirmative Defense for Assumption of Risk

Plaintiff also moves to summarily adjudicate the fourth affirmative defense for assumption of risk. Plaintiff argues this defense does not apply in this “non-personal injury, construction defect case.” Plaintiff is correct.

Generally, “[p]rimary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk . . . bar[s] recovery because no duty of care is owed as to such risks.” (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11.) The doctrine applies not just to sports, but also to “other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156; Saville v. Sierra College (2005) 133 Cal.App.4th 857 [injury during training in police officer takedown maneuvers]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [injury to nurse’s aide by nursing home patient].) 

IT IS SO ORDERED.

Dated:   June 12, 2025 ___________________________________