Judge: Steven A. Ellis, Case: 21STCV19642, Date: 2023-12-08 Tentative Ruling

Case Number: 21STCV19642    Hearing Date: January 5, 2024    Dept: 29

TENTATIVE

The Motion for Summary Judgment, or in the Alternative Summary Adjudication, filed by Defendant Management & Marketing, Inc is DENIED.

Background

On May 25, 2021, Plaintiff Sabino Nava (“Plaintiff”) filed the Complaint in this action against Defendant Management & Marketing, Inc., (“Defendant”) and Does 1 through 20, asserting causes of action for general negligence and premises liability. Plaintiff alleges that on January 2, 2021, while Plaintiff was moving an air conditioning unit down the stairs of an apartment building owned by Defendant, he was seriously injured his leg was pinned against the wall by a dolly and air conditioning unit.

On August 2, 2021, Defendant filed an Answer to the Complaint.

On September 19, 2023, Defendant filed its motion for summary judgment or, in the alternative, summary adjudication. On November 22, 2023, Plaintiff filed his opposition to the motion. On December 1, 2023, Defendant filed its reply brief and objections to some of Plaintiff’s evidence.

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, subdivision (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 pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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 pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)

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.)

Evidentiary Objections

Defendant objects to some of the evidence presented by Plaintiff. 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).)

Defendant asserts five objections to Plaintiff’s evidence. Those objections are OVERRULED.

Discussion

Background Facts

Defendant owns the apartment building at 8424 Columbus Avenue in North Hills, California (“the Building”). (Defendant’s Statement of Undisputed Material Fact [“DSUMF”], No. 1). Rodrigo Bernal is the building manager. (DSUMF, No. 4.)

A critical witness in this case has the first name Jaime. The parties dispute his last name: Defendant says that his full name is Jaime Bernitz and Plaintiff says that his name is Jaime Sebastian. (DSUMF, No. 2.) The dispute about the last name is, of course, not material to this motion. The Court will refer to this witness by his first name (which is undisputed), “Jaime.”

Jaime was a tenant at the Building. (DSUMF, No. 2.) Jaime lost his job after the start of the COVID-19 pandemic and was behind in his rent. (DSUMF, No. 3.) Defendant and Jaime reached an agreement in which Jaime would do work on the property in exchange for partial rent relief. (DSUMF, No. 4.) Jaime reported to the building manager, Bernal. (Ibid.)

Plaintiff has, on occasion, earned money selling scrap metal. (DSUMF, No. 5; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 64.) Defendant installed new air conditioning units in the Building, and the old air conditioning units were on the roof of the Building. (PSAMF, No. 67.) Someone hired Plaintiff to remove some of the old air conditioning units; Defendant says that Jaime hired Plaintiff, and Plaintiff says that he was hired by Bernal, acting as agent for Defendant. (DSUMF, No. 6; PSAMF, Nos. 66, 70.)

Plaintiff and Jaime removed four air conditioning units from the Building on December 31, 2020. (DSUMF, No. 7.) Plaintiff received $330 and gave Jaime $100. (DSUMF, No. 8.) Plaintiff returned to the Building on January 2, 2021, to remove additional air conditioning units. (DSUMF, No. 9; PSAMF, No. 74.) The Building’s elevator was not working on that day, and so Plaintiff and Jaime attempted to take the units down the stairs on a dolly. (DSUMF, Nos. 11-12; PSAMF, No. 83.) While attempting to move the air conditioning units down the stairs, the dolly and the air conditioning units gained momentum and eventually pressed Plaintiff’s leg between a unit and the wall, causing injury to Plaintiff. (DSUMF, No. 13; PSAMF, No. 84.)

Plaintiff’s Claims Against Defendant

Plaintiff asserts causes of action against Defendant for premises liability and negligence.  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

As is relevant here, Plaintiff alleges that Defendant hired him to do the work of removing the air conditioning units. Plaintiff’s negligence claim is based on Defendant’s alleged breach of a duty to provide a safe working environment. Plaintiff’s premises liability claim is based on an unsafe condition, namely the absence of a working elevator. (Plaintiff’s argument, as the Court understands it, is not that the stairs themselves were unsafe but that the stairs were unsafe under the circumstances of the accident as Plaintiff was required to use the stairs to remove heavy equipment.).

Defendant argues (among other things) that it is entitled to summary judgment (or, in the alternative, to summary adjudication) because it did not hire Plaintiff to do this work and it had no advance knowledge that Plaintiff would attempt to use the stairs to remove the air conditioning units. And without such knowledge, it did not have any knowledge of a dangerous condition in the Building, as there is nothing inherently unsafe about stairways and there is no evidence of anything unsafe about the stairways in the Building on the date of the accident.

The dispositive issue, as presented by Defendant, is one of the scope of employment or agency. Defendant argues (in essence); (1) that Defendant did not hire Plaintiff; (2) that Defendant did not authorize Bernal or Jaime to hire Plaintiff; and (3) that Defendant is not legally responsible for the unauthorized acts of Bernal and Jaime, outside the course and scope of their employment relationship with Defendant, in hiring Plaintiff.

“To hold an employer vicariously liable the employee must be engaged in the duties which he was employed to perform or those acts which incidentally or indirectly contribute to the employer’s service. Conversely, the employer is not liable when the employee is pursuing his own ends.” (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481; see also, e.g., Haliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 95; CACI No. 3720 [stating that conduct is within the scope of employment if it is “reasonably related to the kinds of tasks that the [employee] was employed to perform” or “reasonably foreseeable in light of the employer’s business or the [employee’s] responsibilities”].)

The plaintiff has the burden of proving that “the employee’s tortious conduct was committed within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209; accord Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721; Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 576.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.)

Here, the evidence in the record on this issue is disputed. In or about mid December 2020, Defendant replaced the air conditioning units in the Building. (Briskin Decl., Exh. A. [Abedi Depo.], at 10:22-11:3; Briskin Decl., Exh. B [Bernal Depo.], at 24:21-25:6.) Plaintiff was injured on January 2, 2021, during the course of removing old air conditioning units from the roof – a task that benefitted Defendant. (See Briskin Decl., Exh. B [Bernal Depo.], at 34:16-25; Briskin Decl., Exh. C [Nava Depo.], at 62:24-63:7.) That Plaintiff was also benefitting from the work does not change the fact that he was providing services that benefitted Defendant. To the contrary, Plaintiff and every other agent employee usually receives a benefit (most commonly money) in exchange for their labor.

Plaintiff presented evidence that he was hired to perform this work by Bernal, Defendant’s agent. (Briskin Decl., Exh. C [Nava Depo.], at 18:23-19:4 [“Jaime Sebastian and Rodrigo hired me. I do not now the last name of Rodrigo.”]; see also id. at 19:13-20:1.) Defendant argues that this is not true, but that is a disputed fact – and a particularly material one. And there is also evidence that Defendant (through its agents) had actual knowledge that the elevator in the Building was not working on the day of the accident. (Briskin Decl., Exh. A. [Abedi Depo.], at 9:12-20; Briskin Decl., Exh. B [Bernal Depo.], at 29:6-30:22.)

Moreover, despite Defendant’s arguments to the contrary, there is at least some evidence that would support a reasonable inference that Bernal, as the Building Manager, had actual authority (implied or express) or ostensible authority to hire others, including Plaintiff, to work in the Building. (See Civ. Code, §§ 2316-2319, 2334.)

None of this is to say that Plaintiff will definitely prevail at trial. Defendant argues that Bernal and/or Jaime exceeded their authority, and as a result their conduct while acting outside of their authority does not bind Defendant. (See Civ. Code, § 2350.) But, based on this record, and drawing all reasonable inferences in favor of the non-moving party, the trier of fact could conclude that Defendant (through its agents acting within the scope of their authority) hired Plaintiff to perform the work, that Defendant knew that the elevator in the Building was not working, and that Defendant nonetheless subjected Plaintiff to an unsafe working environment and dangerous condition by expecting him to move air conditioning units from the roof to the ground floor without the benefit of a working elevator.

Finally, Defendant’s arguments about Plaintiff’s discovery responses, which Defendant describes as being “factually devoid” does not change the Court’s analysis. As explained above, there is evidence in the summary record that is sufficient to create triable issues of material fact as to Defendant’s liability on both the negligence and premises liability causes of action. Plaintiff’s responses to Special Interrogatories Nos. 7 and 8, both of which ask Plaintiff to provide facts about his “fall,” add nothing to the analysis, as Plaintiff does not allege that he fell.

Conclusion

There are triable issues as to Defendant’s knowledge of a dangerous condition in the Building and breach of duty. Accordingly, the Court DENIES Defendant’s motion for summary judgment and DENIES Defendant’s motions for summary adjudication.

Plaintiff to give notice.