Judge: Steven A. Ellis, Case: 19STCV30424, Date: 2023-08-09 Tentative Ruling
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ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.
Case Number: 19STCV30424 Hearing Date: August 9, 2023 Dept: 29
TENTATIVE
The Court wishes to hear from counsel,
including on the questions set forth below.
Background
Plaintiffs Sergio and Silvia Navarro (“Plaintiffs”)
are the owners of a house in Castaic, California that sustained substantial fire
damage in August 2017. (SUMF Nos. 1-3.) In the Complaint, Plaintiffs allege
that they hired a general contractor, Defendant Matthew White (initially named
as Matthew Whitehouse), and his company Defendant Whitehouse Construction, Inc.
(collectively, “Defendants”), for necessary repairs; that Defendants’
negligence caused a flood at their home; and that Plaintiff Sergio Navarro slipped
and fell on September 1, 2017, while inspecting the water damage, sustaining
significant injuries to his spine.
On August 27, 2019, Plaintiffs filed their
Complaint, alleging causes of action for negligence, negligent infliction of
emotional distress, and loss of consortium against Defendants and Does 1
through 100.
On November 19, 2020, Defendants filed
their Answer and a cross-complaint for indemnity against Roes 1 through 100.
On March 9, 2023, Defendants filed this
motion for summary judgment or, in the alternative, for summary adjudication.
On July 17, 2023, Plaintiffs filed their opposition. On July 21, 2023,
Defendants filed their reply, objections to Plaintiff’s evidence, and their own
supplemental declaration in support of the motion.
On July 31, 2023, the Court, on its own
motion, continued the hearing on the motion to August 9, 2023.
On August 4, 2023, Plaintiffs corrected the
name of the defendant formerly sued as Matthew Whitehouse to his true name
Matthew White.
Legal
Standard
“The purpose of the law of summary
judgment is to provide courts with a mechanism to cut through the parties’ pleadings
in order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure section 437c(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 cause of action as
framed by the complaint, a defendant moving for summary judgment or summary
adjudication must satisfy the initial burden of proof by presenting facts to
show “that one or more elements of the cause of action ... cannot be
established, or that there is a complete defense to the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at
850-51; 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see
also Aguilar, supra, 25 Cal.4th at 850-51.) 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.)
Evidentiary
Objections
Defendant objects to certain portions
of Plaintiff’s evidence. Evidence
presented in support of, or in opposition to, a motion for summary judgment
must be admissible. (Code Civ. Proc., § 437c,
subd. (d); Perry v.
Bakewell Hawthorne LLC
(2017) 2 Cal.5th 536, 541-43.) The court
must “consider all of the
evidence set forth in the papers, except the evidence to which objections have
been made and sustained.” (Code Civ.
Proc., § 437c, subd. (c).)
Defendants’ objections are OVERRULED.
Discussion
First Cause of
Action (Negligence)
The elements of a cause of action for negligence are (1) duty, (2)
breach, (3) causation, and (4) damages. (Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998;
McIntyre
v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Defendants move
for summary judgment on essentially two grounds: (a) that the undisputed facts
show as a matter of law they owed no duty to Plaintiffs; and (b) that the
undisputed facts show as a matter of law that, even if they owed a duty to
Plaintiffs, they did not breach that duty or cause the harm that Plaintiffs allege.
Duty
As to duty, Defendants argue that they were hired by the insurance
company, not Plaintiffs, to work on the property. (White Decl., ¶ 5; Def. Exh.
5, at 54:12-14.) As a result, Defendants contend, they owed no duty of care to
Plaintiffs.
Plaintiffs
argue in response that there is evidence that they hired Defendants, but even
if Defendants were hired only the insurance company Defendants still owed a duty
of care to Plaintiffs. The duty of care is not limited to those in contractual
privity. To the contrary, as set forth in Civil Code section 1714: “Everyone 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, subd. (a).) This establishes what the California
Supreme Court has described as the “default rule” that every person has a legal
duty “to exercise, in his or her activities, reasonable care for the safety of
others.” (Brown v. U.S. Taekwondo (2021) 11 Cal.5th 204, 214.)
Defendants were hired
(whether by Plaintiffs or the insurance company) to perform work at Plaintiffs’
home. Defendants had a duty of care to perform that work with reasonable care
for the safety of Plaintiffs. (Moreover, the Court notes, that even if
Defendants were hired by the insurance company, Plaintiffs may well have been
third party beneficiaries of the contract, even if they were not parties to it.)
Accordingly,
Defendants have not shown that the undisputed facts show as a matter of law
that they owed no duty to Plaintiffs.
Breach and Causation
Alternatively, Defendants argue that the undisputed facts show that they
had nothing to do with the flood that occurred within Plaintiffs’ home.
The fire on August 6, 2017 caused substantial damage to Plaintiffs’ home.
(SUMF No. 3; PSAMF No. 1.) All of the water pipes in the attic were melted.
(PSAMF No. 10.) After the fire, the Fire Department turned off the main water
valve for home. (SUMF No. 24; PSAMF No. 10.) After the flooding incident, it
was off. (SUMF No. 24.)
Defendants were hired to perform an emergency “safe off” of the
electrical system to isolate for the pool equipment; this would restore
electricity to the pool equipment and allow that equipment to get “up and
running” so that it would not deteriorate. (SUMF No. 6; PSAMF Nos. 6-7; White
Decl., ¶¶ 6-7, 9-11; Tashjian Decl., Exh. 3, at 31:23-32:2.) Defendant
Matthew White testified under oath that he did not touch the main water valve.
(White Decl., ¶ 8.) Defendants Plaintiff Sergio Navarro testified at his
deposition that he had no information about whether Defendant White did anything
to cause the flooding. (SUMF No. 26.)
Defendants did hire a subcontractor, Eric Zindroski, to clean the pool
and to make sure that the pool pumps were working. (PSAMF No. 7.) Defendants
gave Mr. Zindroski access to the pool area, but not the residence, to perform
the pool maintenance. (PSAMF No. 8.) Plaintiffs contend that Mr. Zindroski
turned on the main water valve to perform his work and in the process flooded
the home. (PSAMF No. 11.) Defendant White testified at his deposition that he contacted
Mr. Zindroski on the day of the incident and asked whether he had “accidentally
turned on the water or anything like that” and Mr. Zinroski “emphatically told
me no.” (Tashjian Decl., Exh. 3, at 38:4-12.) Mr. Zindroski stated to Defendant
White that he “just went and cleaned the pool, did not turn on any water.” (Id.
at 38:13-14.)
The Court wishes to hear from counsel on a number of issues, including
the following:
1. Are Defendants
legally responsible for the actions of Mr. Zindroski, either under a theory of
agency or otherwise?
2. Is the negligence
cause of action in the Complaint against Defendants broad enough to encompass
the claim that Plaintiffs are now apparently making (that Defendants hired Mr.
Zindroski and Mr. Zindroski’s negligence caused the flood and the injury to
Plaintiffs), or should Plaintiffs be required to amend if they wish to pursue
such a claim?
3. Is there
sufficient circumstantial evidence present in the record that someone must have
turned on the water at the house to defeat Defendants’ motion for summary
judgment? The water valve presumably didn’t turn itself on, and then later turn
itself back off. If Plaintiffs did not turn it on, and the only other people on
the property at the relevant time were Mr. White and Mr. Zindroski, could the
finder of fact reasonably draw an inference on this record that either Mr.
White or Mr. Zindroski must have turned the valve on? Or does this fall into
the category of speculation that courts have regularly held is not sufficient
to defeat a motion for summary judgment?
Second and Third Causes of Action (Negligent Infliction of Emotional
Distress and Loss of Consortium)
The second and third causes of action for negligent infliction of
emotional distress and loss of consortium are derivative of the negligence
cause of action. Accordingly, the ruling on these two causes of action is
likely to follow from the ruling on the negligence cause of action.
Conclusion