Judge: Ronald F. Frank, Case: 20STCV26610, Date: 2023-01-23 Tentative Ruling
Case Number: 20STCV26610 Hearing Date: January 23, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: January 23, 2023¿
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CASE NUMBER: 20STCV26610
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CASE NAME: Ray Sonnet v.
Westside Residence Hall, Inc., et al
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MOVING PARTY: Defendant and Cross-Defendant, Westside Residence Hall,
Inc. and Cantwell-Anderson, Inc.
Intervenor
Redwood Fire Casualty Insurance Company’s Joinder
RESPONDING PARTY: Plaintiff,
Ray Sonnet
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TRIAL DATE: May 3, 2023¿
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MOTION:¿ (1) Motion for Summary Judgment
(2)
Joinder in Motion for Summary Judgment
(3) Plaintiff’s request to consider tardy
opposition papers
¿ Tentative Rulings: (1) The Motion is DENIED. The Court finds a triable issue as to
Westside’s notice of a series of user complaints per the maintenance records
exhibits (listed in the compendium of Plaintiff’s opposition exhibits) that the
elevator intermittently became stuck between floors or stuck on a floor,
combined with (a) the plaintiff’s testimony as to what occurred in the elevator
on the day of the incident, and (b) the deposition testimony of Mr. Spruill on
pp. 55-56 that a cause of the elevators being stuck was the pickup rollers being
out of adjustment and that rollers being out of adjustment could cause a jolt
of the elevator. Sufficient foundation as to Mr. Spruill’s testimony has been
laid -- for MSJ purposes -- to overrule the asserted objection of incomplete
hypothetical or calling for expert testimony
(2)
The Joinder is also denied. The Joinder
is procedurally defective in that it lacked a Separate Statement. A Joinder must comply with all procedural requirements
of a motion, including support with admissible evidence, memorandum of points
and authorities, and on an MSJ, a Separate Statement with supporting evidence
(3) The Court considered the late-file opposition
papers in their entirety. If moving defendants represent at the hearing that they
need additional time to adequately reply to the late-filed opposition, the
Court will postpone the hearing to allow a supplemental reply
I. BACKGROUND¿¿
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A. Factual¿¿
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This case arises out of a personal injury
when Plaintiff, Ray Sonnet (“Plaintiff”) was allegedly injured and worsened a
pre-existing back condition when an elevator allegedly malfunctioned while he
was riding in it from his temporary office on an upper floor in the Westside
Residence Hall building. Plaintiff alleges that he sustained
serious physical and mental injuries while riding in the elevator that “jolted
upward, leaving [Plaintiff] off balance, and then fell down a few feet.”
Plaintiff attributes his ongoing orthopedic injuries in his thoracic and lumbar
spine to the incident. He also claims he suffers from insomnia, nightmares, PTSD,
and reactive depression as a result of the incident.
Defendants
Westside Residence Hall, Inc. and Cantwell-Anderson,
Inc. assert that Plaintiff cannot identify a specific defect with the subject
elevator, and that they had no notice of the existence of a dangerous condition
of their building which is an essential element of a premises liability cause
of action. Defendants contend that due
to Plaintiff’s failure to timely or properly report any elevator incident to
the Building, no inspection was ever performed on the subject elevator to
identify any defect which could/would cause or confirm the incident as
described in Plaintiff’s Complaint. Defendants also argue that Plaintiff also
cannot meet his burden to show that the Building had notice of any kind of any
defect that could cause a falling elevator because despite the hundreds of
people living on the premises at the time, there were never any prior or
similar complaints of incidents wherein the subject elevator fell or dropped
even a single floor. Lastly, Defendant asserts that the subject elevator was
inspected by both the State of California and Amtech prior to the alleged
incident and the records do not reflect any safety hazards for passenger use
and do not identify any defect with which could cause the elevator to fall.
Based on the above arguments, Defendants have brought this
Motion for Summary Judgment asserting that Plaintiff cannot meet his burden
with respect to the complaint allegations of negligence and premises liability.
B. Procedural¿¿
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On August 16, 2022, Defendants and
Cross-Defendants Westside Residence Hall, Inc. and Cantwell-Anderson, Inc.
filed this Motion for Summary Judgment. The case was reassigned from Torrance
to Inglewood while the motion was pending.
On January 12, 2022, Plaintiff filed extensive opposition papers which
were several days late, but the Court grants the Plaintiff’s request to
consider the late-filed papers. If moving
defendants represent at the hearing that they need additional time to adequately
reply to the late-filed opposition, the Court will grant a brief continuance to
allow supplemental reply papers. On January
18, 2023, Defendants filed reply papers and Plaintiff filed opposition to the Intervenor’s
joinder. On January 20, 2023, Plaintiff
filed requests for dismissals of two other defendants, Otis Elevator and Pacific
Coast / Amtech who had also filed dispositive motions.
III. EVIDENTIARY OBJECTIONS
Defendant’s Objections to
Plaintiff’s Evidence
Sustained: None.
Overruled: 1-10.
Plaintiff’s Objections to Defendant’s
Separate Statement
Sustained: None.
Overruled: 1-8. In future, Plaintiff needs to object to specific
evidence, with page and line references, not to the undisputed material facts
IV. ANALYSIS¿
A. 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.) CCP Section 437(c) “requires the trial
judge to grant summary judgment if all the evidence submitted, and ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by other
inferences or evidence, show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)¿
As to each claim as framed by the complaint, the defendant
moving for summary judgment must satisfy the initial burden of proof by
presenting facts to negate an essential element, or to establish a defense.
(CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1520. ) Courts “liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor
of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384,
389.)¿
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿ To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Here, the moving defendants satisfied their initial burden and shifted the burden to plaintiff to raise material facts as to which a factual dispute exists that would warrant a trial. The Court finds Plaintiff met that burden here.
B. Discussion As a preliminary matter, Plaintiff’s opposition was untimely. The hearing date for Defendants’ Motion for Summary Judgment is set for January 23, 2023. As such, all oppositions were due on or before January 9, 2023. Defendants note that they allowed a late deposition of defense witness Calivin Melgard to take place on January 9, 2023 and also agreed to allow Plaintiff to file a “supplemental brief” within 24 hours by end of business day on January 10, 2023 to allow for any necessary arguments that were revealed due to the Melgard deposition. Defendants note that supplemental briefing implied an additional brief, not allowing Plaintiff to file its entire opposition late. However, Plaintiff did not file its any opposition until January 12, 2023. While Defendants have legitimate grounds for their position on timeliness, the Court grants leave to Plaintiff to have filed all of its opposition papers late and the Court has considered them. The Court will consider any request by moving defendants for leave to file a supplemental reply, especially given how long this motion was pending and previous extensions of the hearing to enable plaintiffs to conduct discovery and file oppositions.
Defendants moves for summary judgement on the basis that
Defendants claim: (1) Plaintiff has not identified a dangerous condition as the
cause of his injuries; (2) Plaintiff’s claims for negligence and premises
liability fail as a matter of law where defendants did not have notice of any
alleged dangerous condition.
Negligence and Premises Liability
The elements of
a cause of action for premises liability and negligence are the same:
duty, breach, causation, and damages. (Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.) While those who own, possess, or control
property are not insurers of the safety of their patrons, they generally have a
duty to exercise reasonable and ordinary care in keeping the premises
reasonably safe and in managing the property¿to¿avoid exposing others to an
unreasonable risk of harm. (Ortega v. Kmart Corp.¿(2001) 26
Cal.4th 1200, 1205; Annocki¿v. Peterson Enterprises, LLC¿(2014)
232¿Cal.App.4th 32, 37.) The existence and scope of duty are legal
questions for the court. (Annocki, 232¿Cal.App.4th.¿at¿36.)
If a dangerous condition exists, the property owner is “under a duty to
exercise ordinary care either to make the condition¿reasonably safe for
their¿[customers’]¿use or to give a warning adequate to enable them to avoid
the harm.” (Bridgman v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443,
446.) The party asserting the cause of action has the burden to prove
that the owner had actual or constructive notice of the
dangerous condition in sufficient time to correct it. (Ortega, 26
Cal.4th at 1203, 1206.)
Once duty is
established, the plaintiff must prove that the defendant breached this duty by
failing to exercise ordinary care and the breach was a substantial factor in
causing plaintiff’s harm. (Ortega, 26 Cal.4th at
1205.)
Actual
or Constructive Notice
The plaintiff has the burden to prove the owner had actual
or constructive notice of the defect in sufficient time to correct it.¿ (Louie
v.¿Hagstrom’s¿Food Stores¿(1947) 81 Cal.App.2d 601, 606.)¿ “There must be
some evidence . . .¿ to support the conclusion that the condition had existed
long enough for the proprietor, in the exercise of reasonable care, to have
discovered and remedied it.”¿¿(Girvetz¿v. Boys’ Market¿(1949) 91 Cal.App.2d 827, 829.)¿
The plaintiff has the burden because “shifting the burden to defendant would,
contrary to existing negligence law, permit an inference of negligence to be
drawn against the owner based solely on the fact that the fall or accident
occurred.”¿ (Ortega,¿supra, 26 Cal.4th at p. 1206.)¿
However, the plaintiff need not show actual knowledge where
evidence suggests the dangerous condition was present for a sufficient¿period of time¿to
charge the owner with constructive knowledge of its existence, which may be
shown by circumstantial evidence.¿ (Ortega,¿supra, 26 Cal.4th at
p. 1206.)¿ A plaintiff may prove a dangerous condition existed for an
unreasonable time with circumstantial evidence that an inspection had not been
made within a particular¿period of
time¿prior to the accident, warranting the
inference that the defective condition existed long enough that a person
exercising reasonable care would have discovered it.¿ (Id. at p. 1210.)¿
“The exact time the condition must exist before it should,
in the exercise of reasonable care, have been discovered and remedied, cannot
be fixed, because, obviously, it varies¿according to the circumstances.”¿ (Louie,¿supra,
81 Cal.App.2d at p. 608.)¿ “It remains a question of fact for the jury whether,
under all the circumstances, the defective condition existed long enough so
that it would have been discovered and remedied by an owner in the exercise of
reasonable care.”¿ (Ortega,¿supra, 26 Cal.4th at p. 1213.)
Here, Defendants assert that Plaintiff cannot establish that
Defendants had actual or constructive notice of any defective or dangerous
condition, since Plaintiff has not identified a dangerous condition. Defendants
argue that Plaintiff has no evidence to establish that a dangerous condition
was present, or that one was present for a sufficient period of time to charge
them with constructive knowledge of its existence. Defendants note that they
are not in the business of elevator mechanics nor are they qualified to inspect
and certify an elevator for passenger use, nor would they attempt to repair or
maintain any defect on the elevators. (Declaration of Segun Waldron (“Waldron
Decl.”).) As such, Defendants note that they had a service agreement with
Amtech Elevator Services. Neither side
briefed the issue as to whether Defendant had a non-delegable duty to maintain
the elevator in safe condition, and neither side cited a precedent in which a
property owner or property management company rather than the elevator
manufacturer or maintenance company was being held liable for the condition or
operation of an elevator
Defendants assert that Plaintiff admits that there had been no prior
falling elevator incidents that he had ever heard of with respect to the
Building elevators, nor had he ever experienced an elevator fall or similar
defect himself prior to the alleged incident. (Exhibit B, Plaintiff’s
Deposition, 68:8-21; 70:7-11.) Defendant notes that Segun Waldron, the
facilities manager for the building confirms the same. (Waldron Decl., ¶¶
5-6.) Defendant also asserts that Amtech also had not put forth any evidence in
their concurrently filed Motion for Summary Judgment that any same or similar
falling elevator repair or service calls were received. Thus, to defeat summary judgment plaintiff must
raise a triable issue as to which a jury reasonably could infer notice of a
potential hazard from evidence of other problems with the subject elevator.
Defendants
provide the following evidence: the subject elevator had recently been
inspected by the State of California on December 3, 2019. (Waldron Decl. ¶ 8,
Exhibit A.) Defendants also assert that the subject elevator had also been
inspected by Amtech technician Spruill on January 10, 2020, only four (4) days
prior to the alleged incident. On both occasions, Defendants argue that the
subject elevator was operating safely and gave no indication that any defect
was present or existed that would result in a falling car. Neither the State
Inspector, Mr. Vallette, nor the Amtech technician, Mr. Spruill, advised the
Building of any risk the elevator presented of falling or any risk to passenger
safety at all. (Waldron Decl., ¶¶ 5,7,9.) As noted in
Waldron’s declaration, the Building was not aware of any prior incidents of the
subject elevator falling on any occasion. Further, on the date of the incident,
the Building did not receive any complaints or reports of elevator malfunction.
(Waldron Decl., 5.) As such, the Defendants argue that
the undisputed facts establish that the Building had no notice of any danger,
much less falling, presented by the subject elevator.
In
opposition, Plaintiff asserts that Defendants had been on notice for ten (10)
years that their elevators were not in compliance with State Safety
Requirements or Federal Codes. For evidence, Plaintiff asserts that in the week
before Plaintiff’s incident, Amtech’s service technician was called regarding
emergencies or non-routine repairs for the subject elevator on January 6, 2020,
January 7, 2020, and January 10, 2020. (Opposition, Exhibit 3.) Defendants
argue that this is immaterial as none of the prior repair calls or maintenance
involved an elevator car falling. (Spruill Deposition, 68:7-10.)
Plaintiff
also submits evidence arguing that Defendant Amtech submitted four
Modernization Proposals to Moving Parties prior to Plaintiff’s incident in
2010, 2014, 2018, and 2019. Plaintiff contends that all four modernization
proposals required installation of an additional safety measure for overspeed –
a rope gripper – as required by California Code. Plaintiff further contends
that the rope gripper is a second safety device for overspeed, whereas the
older elevators rely entirely on the governor. (MF, 26.) Plaintiff also asserts
that in 2018, the Building hired an elevator consulting company, Lerch Bates,
to define the scope of work for the elevators and oversee the bidding process.
Lerch Bates significantly expanded the scope of work recommended in Amtech’s
2010 and 2014 proposals, requiring “almost everything on the elevators to be
upgraded, repaired, or replaced.” (MF, 27.) Plaintiff also submits evidence
that in 2018, Lerch Bates determined that the scope of work required
replacement of the overspeed governor device, as well as installing a rope
gripper device in accordance with California code. (MF, 28.) Furthermore,
Plaintiff submitted evidence asserting that in the year leading up to Plaintiff’s
incident, some of the parts and equipment in the subject elevator that required
repairs were obsolete technology and were not considered industry standard for
the last 30 years. (MF, 29.) Plaintiff notes that Amtech’s modernization
proposals included recommendations to update these parts.) In response to each
Plaintiff’s material facts, Defendants asserted that Amtech testimony
established that the modernization proposals were not based on any tests of
elevator functionality but rather the existence of newer technology. (Objection
to Plaintiff’s Evidence No. 10, Boots Deposition, 81:23-82:3; Boots Deposition
82:9-22.)
In opposition, Plaintiff further
argues that Amtech’s elevator technician assigned to the building testified
that in 2018 and 2019, the Building’s elevators broke down more than usual
compared to the approximately 148 other elevators in his service route.
(Spruill Deposition, 20:4-12; 21:17-23.) Plaintiff also asserts that in the
nine months prior to Plaintiff’s incident, the subject elevator alone required
thirteen unscheduled, non-routine visits from Amtech’s service technicians.
(MF, 20.) Plaintiff further contends that in the four months prior to
Plaintiff’s incident, Amtech received four emergency calls from the Building
regarding passengers trapped in the east elevator. Three of these calls
occurred within a nine-day period in November 2019, less than two months before
Plaintiff’s incident. (MF, 21.) Lastly, Plaintiff notes that the week before
Plaintiff’s incident, Amtech’s service technician was called regarding
emergencies or non-routine repairs for the subject elevator on January 6, 2020,
January 7, 2020, and January 10, 2020. (MF, 22.) While plaintiff does not emphasize this
point, the Court notes that Spruill testified on pp. 55-56 that one of the repairs
he made in response to complaints about the elevators being stuck was to
address the pickup rollers being out of adjustment, and stated that rollers being
out of adjustment could cause a jolt of the elevator. The Court finds that this raises a triable issue
of fact as to whether the cause of the jolting of the elevator that plaintiff
testified occurred on the day of the incident was the pickup rollers, given the
undisputed fact that moving defendants were on notice of the elevator being
stuck on or between floors on multiple occasions and that the Defendant’s hired
outside service technician correlates the rollers with both the elevator car
being stuck and with jolting.
In
their reply brief, Defendants argue that Plaintiff’s evidence of prior
modernization proposals fails to provide evidence of notice because Defendants
argue that the proposals were not specific to the subject elevator and were not
based on functionality tests for any specific defects. Defendants assert that Plaintiff
does not dispute that he has no evidence of prior complaints related to the
subject elevator falling. (See UMF No. 14; Exhibit B: Plfs Dep. at 68:8-21;
70:7-11). Instead, Defendants assert that Amtech’s repair calls and testimony
provide that the only calls in recent history were not related to any defect
which would cause a falling elevator as described by Plaintiff. Defendant’s reply does not deal with Mr.
Spruill’s testimony specifically. Defendants
contend that notice of “frequency of repairs and emergency calls for trapped
passengers” as alleged by Plaintiff (Plfs. Opp. at 11:23-28) does not equate to
notice of a falling or crashing elevator or even a potential for a falling or
crashing elevator, where there had never been an elevator fall or crash ever
before. Defendants further argue that notice of an older elevator (even if
newer technology existed), does not equate to notice of a falling or crashing
elevator where there had never been an elevator fall or crash ever before. In
sum, Defendants assert that Plaintiff’s argument that an elevator fall was
“foreseeable” based on the frequency of repair cannot logically serve as notice
of a falling elevator defect.
Plaintiff’s opposition
and one of the supporting declarations cite to the building’s alleged failure
to comply with ADA laws. In their reply brief, Defendants have requested that the
Court disregard this argument as an ADA claim is not embraced by Plaintiffs
pleadings so they had no fair notice or opportunity to address that claim. Because the Court is not basing its tentative
ruling on the ADA claim, plaintiff’s assertions and evidence are not material to
this hearing.
V. CONCLUSION¿¿
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For the foregoing reasons, Defendants’
Motion for Summary Judgment in tentatively denied. Plaintiff is to give notice. ¿¿¿