Judge: Steven A. Ellis, Case: 23STCV06520, Date: 2024-12-06 Tentative Ruling
Case Number: 23STCV06520 Hearing Date: December 6, 2024 Dept: 29
Rosas v. Ava Arts District
23STCV06520
Motion for Summary Judgment filed by Defendant Covi Concrete Construction, Inc.
Tentative
The Court will hear from counsel on the issue
of whether to consider the new evidence submitted by moving party with its
reply.
The Court’s tentative ruling is that the motion
is DENIED.
Background
On March 24, 2023, Plaintiff Raul Gutierrez Rosas (“Plaintiff”)
filed the complaint in this action against Defendants Ava Arts District, L.P.
(“Ava”); Covi Concrete Construction, Inc. (“Defendant”); and Does 1 through 50,
asserting causes of action for negligence and premises liability arising out of
fall at a construction site on February 2, 2022, at or near 1540 East
Industrial Street in Los Angeles.
Ava and Defendant filed answers on May 18, 2023.
On April 18, 2024, the Court granted Ava’s
motion for summary judgment.
On June 5, 2024, Defendant filed this motion
for summary judgment, along with a request for judicial notice.
Plaintiff filed an opposition on November 21,
2024, along with objections to some of Defendant’s evidence.
Defendant filed a reply on November 27, along
with additional evidence and objections to some of Plaintiff’s evidence.
On December 2, Plaintiff filed an objection to Defendant’s
additional evidence submitted with its reply.
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.)
Request for Judicial Notice
The Court GRANTS Defendant’s request for
Judicial Notice of Plaintiff’s complaint, Defendant’s answer, and the Minute
Order dated April 22, 2024, granting Ava’s motion for summary judgment.
Objections to Evidence
Each party objects to some of the evidence
submitted by the other.
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).)
Plaintiff objects to two portions of the
transcript of the deposition of Jonathan Torres (as PMQ of Ava), lines 12-20 on
page 36 and lines 2 to 18 on page 37.
The Court SUSTAINS the objections on the ground
of lack of foundation, lack of personal knowledge, and hearsay.
Defendant asserts 16 objections to Plaintiff’s
evidence. The Court notes that Defendant’s objections violate the requirements
of California Rules of Court, rule 3.1354(b), as the objections are not all
numbered (except for the first three objections).
The Court SUSTAINS Defendant’s objections to
paragraphs 6 and 7 of the declaration of Tyler Miles and the attached exhibits
6 and 7 on the ground that the evidence is inadmissible under Labor Code
section 6304.5.
The Court OVERRULES Defendant’s other 14 objections,
all of which challenge various aspects of the declaration of Plaintiff’s expert
witness Jeff Hughes. Among other
things, the Court finds that Mr. Hughes has appropriate credentials and his
testimony relates to a subject that is
sufficiently beyond common experience that the opinion of an expert witness
would assist the trier of act; is based on information of the type on which an
expert may reasonably rely; is based on reasons supported by the information on
which the expert relies; and is not speculative. (Evid. Code, §§ 801-802; Sargon
Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.) Most or all of Defendant’s
objections to the testimony of Mr. Hughes go to the weight of his testimony,
not its admissibility.
Plaintiff objects to the new evidence that Defendant
submitted with its reply. The Court WILL HEAR FROM COUNSEL on this objection.
Discussion
Plaintiff
alleges that he was injured in an on-the-job accident at a construction site on
February 2, 2022. (Complaint, ¶ 11, 13; Defendant’s Statement of Undisputed
Material Facts [“DSUMF”], Nos. 7-8, 11.) Plaintiff alleges that “fell from the
third story, approximately thirty (30) feet below when he stepped through a
hole on the floor covered by an unsecured piece of plywood that had been left
and created by DEFENDANTS.” (Complaint, ¶ 13; DSUMF, No. 8.)
Ava
owned the property and was the general contractor of the construction project.
(DSUMF, No. 1.) Ava hired an independent contractor, Davis Development Company,
Inc. (“Davis”), to perform wood framing on the site. (DSUMF, No. 2.) At the
time of the accident, Plaintiff was working as an employee of Davis. (DSUMF,
Nos. 5-7.)
Ava also
hired Defendant, another independent contractor, to perform concrete work on
the site. (DSUMF, No. 3.)
On the
day of the accident, Plaintiff was working on Level 3 of Section C of the site.
(DSUMF, No. 15.)
Two
representatives of Defendant provided testimony: Mario Velez, Defendant’s
Safety Coordinator; and Ramon Garcia, foreman. (DSUMF, Nos. 16, 22; Velez
Decl., ¶ 4; Garcia Depo., at 10:3-9.) (Excerpts from the deposition of Mr.
Garcia appear as Exhibit F to the Real Declaration and as Exhibit 2 to the
Miles Declaration.)
Defendant
completed its work on Level 3, Section C on or about January 18, 2022, approximately
15 days before the accident. (Velez Decl., ¶ 6; Garcia Depo., at 13:3-14:9.)
When Defendant finished its work in this section of the project, it left holes
in the floor area; the purpose of the holes was for ventilation shafts for the
restaurant kitchen. (Garcia Depo., at 28:19-24.) Before Defendant completed its
work, Defendant installed “fall protection in the form of guardrails around the
subject opening where Plaintiff’s fall occurred.” (Velez Decl., ¶ 7; see also
Velez Depo., at 46:12-18.) Defendant did not remove the “fall
protection/guardrails.” (Velez Decl., ¶ 8.)
Before
completing its work On Level 3, Section C, Defendant placed “shoring” or
“decking,” including plywood and aluminum frames, approximately 16 inches below
the holes in the floor. (Garcia Depo., at 21:2-22:16.) With the shoring and
decking in place, a person cannot fall through the hole. (Velez Depo., at
46:7-10.)
The next
subcontractor to work in the Level 3, Section C area was Davis, Plaintiff’s
employer. By the day of the accident, Davis had already put some of the framing
in place. (Garcia Depo., at 29:13-17.) Mr. Garcia testified that Davis had to
remove the guardrails that Defendant put in place in order for Davis to do its
work. (Garcia Depo., at 138:2-19.) “The
guardrail,” Mr. Garcia explained, “would be in the way.” (Garcia Depo., at
138:16-19.)
The day
before Plaintiff’s accident, Defendant began removing the shoring and decking
beneath Level 3, Section C. (Garcia Depo., at 22:18-21.) That process continued
the morning of the accident. (Garcia Depo., at 56:8-11.) Defendant did not
provide any warning signage or block off the work area on Level 3, Section C.
(Garcia Depo., at 36:5-38:3.) As Mr. Garcia explained, “[W]e [were] not on that
level anymore.” (Garcia Depo., at 37:23-38:3; see also Velez Depo., at 76:23-77:13,
82:2-22, 85:9-21, 88:8-15.)
Even
after the removal of the shoring and decking, however, there was still some
plywood in place underneath the hole. (Garcia Depo., at 56:8-11, 64:21-23;
Velez Depo., at 72:11-16; Plaintiff’s Statement of Additional Material Facts [“PSAMF”],
No. 5.) From the perspective of someone on Level 3, section C, the hole looked
the same as it had before the removal of the shoring and decking. (Garcia
Depo., at 64:3-19; Velez Depo., at 94:2-11.) Defendant did not place any
markings or warnings on the plywood to identify that the shoring had been
removed. (Velez Depo., at 73:5-74:6, 94:13-15; PSAMF, No. 6.) Nor did Defendant
confirm that the guardrails were still in place. (Velez Depo., at 74:7-15,
85:4-8.)
According
to Mr. Velez, when the deshoring process is occurring, no one should be working
in the area above the deshoring, in part because of the risk of fall in the
openings. (Velez Depo., at 53:2-9, 76:1-15, 77:15-24.)
Minutes
after the accident, Mr. Velez and Mr. Garcia inspected the area on Level 3,
Section C, where the fall occurred; there were no guardrails or other fall
protections in place around the shaft or opening that Plaintiff fell through.
(Velez Decl., ¶ 12; Garcia Depo., at 14:10-22, 18:2-24, 29:1-12; see also
DSUMF, No. 23.)
There
were weekly meetings of representatives of the various subcontractors working
on the project. (DSUMF, No. 12.) In one of those meetings, just one day before
the accident, Mr. Garcia testified that he stated, “Today … I will start
removing the – all shoring of L3-3C section. Be prepared. Make sure all your
fall protection is in place. Be ready.” (Garcia Depo., at 25:3-20.) A
representative of Davis, Plaintiff’s employer, was present. (DSUMF, No. 13.)
Plaintiff testified that he could not see
through the hole that he stepped into and fell through. (Plaintiff Depo., at 58:2-8.)
(Excerpts from the deposition of Plaintiff appear as Exhibit H to the Real
Declaration and as Exhibit 5 to the Miles Declaration.) There were no
protections in place, there were no warning signs, and no one warned Plaintiff
about holes or openings in the floor. (Plaintiff Depo., at 62:13-18, 63:13-19;
see also DSUMF, Nos. 23-24.) Plaintiff stated that if he had been warned to
stay out of the area near the hole, he would have stayed out. (Plaintiff Depo.,
at 64:1-7.)
In
the complaint, Plaintiff asserts causes of action against Defendant for
negligence and premises liability. Defendant now moves for summary judgment or,
in the alternative, for summary adjudication on each cause of action in the
complaint.
The
basic elements of a cause of action for negligence and for premises liability
are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting
damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon
v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Both parties frame their briefing
around the elements of breach and causation, and this Court takes the same
approach.
Negligence
Civil Code section 1714 provides: “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. USA Taekwondo (2021) 11 Cal.5th 204,
214.)
When
a defendant has created a dangerous condition – one that poses an unreasonable
risk of harm to others – the defendant had a duty “to exercise ordinary care either to make
the condition reasonably safe …. or to give a warning adequate to enable [others]
to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d
443, 446; see also, e.g., Kinsman v. Unocal Corp. (2005)
37 Cal.4th 659, 672-73.) In some cases, and subject to certain exceptions,
however, a dangerous condition may be so obvious that the condition itself
serves as a warning, and the defendant may have no further duty to remedy or
warn of the condition. (See Kinsman, supra, 37 Cal.4th at p. 673; Montes
v. YMCA of Glendale (2022) 81 Cal.App.5th 1134, 1142; Christoff v. Union
Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126; Krongos v. Pacific
Gas Electric Co. (1992) 7 Cal.App.4th 387, 393.)
Here,
Defendant contends that it did not breach any duty owed to Plaintiff. To be
sure, when Defendant completed its work in the Level 3, Section C area of the
worksite, there were holes in the floor, but those holes were a necessary element
of the work Defendant was hired to perform for the project: specifically, the
purpose of the holes was for ventilation shafts for the restaurant kitchen. (Garcia
Depo., at 28:19-24.)
In any event, Defendant has presented evidence
that it completed its work in Level 3, Section C, on or about January 18, 2022,
more than two weeks before the accident, and when it completed its work in this
area, it placed guardrails around the hole at issue. (Velez Decl., ¶¶ 6-8; Velez
Depo., at 46:12-18; Garcia Depo., at 13:3-14:9.)
In
addition, Defendant placed shoring or decking beneath the holes. (Garcia Depo.,
at 21:2-22:16.) This was additional fall protection. (Velez Depo., at 46:7-10.)
If this
were the end of the story, or if Plaintiff’s accident had occurred immediately after
Defendant completed its work in this area of the jobsite, it might well be the
case that Defendant would be entitled to summary judgment. But it is not the
end of the story.
Approximately
two weeks later, On February 1, 2022, one day before Plaintiff’s accident, Defendant
began the process of removing the shoring and decking. (Garcia Depo., at
22:18-21, 56:8-11.) So Defendant removed one element of the fall protection for
the workers in Level 3, Section C.
Someone
also removed the guardrails that Defendant had put in place. (Velez Decl., ¶
12; Garcia Depo., at 14:10-22, 18:2-24, 29:1-12; see also DSUMF, No. 23.) There
is no evidence in the record regarding who removed the guardrails. One
possibility is that it was Davis, Plaintiff’s employer, as Davis was the
subcontractor that was working in the area, and – as Defendant’s foreman himself
testified – the guardrails were “in the way” of the work that Davis was hired
to perform. (Garcia Depo., at 138:2-19.) And so now, by the date of the
accident, there were no fall protections at all in place.
Worse still, the holes were at least partially
obscured. Remaining in place was plywood that Defendant had installed underneath
the hole. (Garcia Depo., at 56:8-11, 64:21-23; Velez Depo., at 72:11-16; PSAMF,
No. 5.) As a result, for someone working on Level 3, section C, the hole looked
the same as it had before Defendant removed the shoring and decking. (Garcia
Depo., at 64:3-19; Velez Depo., at 94:2-11.)
As a
result, on this record, a finder of fact could reasonably conclude that by the
day of Plaintiff’s accident, February 2, 2022, there was a dangerous condition
on the jobsite: holes, without fall protections, that were partially obscured.
And, on this record, a finder of fact could reasonably conclude that Defendant
had either created the dangerous condition or, at the very least, substantially
contributed to its creation: Defendant, and no one else, removed the shoring
and decking, and Defendant, and no one else, had put in place the plywood that
had the effect of partially obscuring the danger.
Having
created or contributed to the creation of this condition, Defendant had a duty
to remedy the dangerous condition or provide an adequate warning of the risk.
On this record, a finder of fact could reasonably conclude that Defendant did
neither.
Indeed,
there is no doubt that Defendant did nothing to remedy the dangerous condition.
Defendant was done with its work in the Level 3, section C area, and did not take
any action (and did not believe that it had any duty to take any action) to
protect the safety of workers in that area. (See Garcia Depo., at 37:23-38:3;
Velez Depo., at 76:23-77:13, 82:2-22, 85:9-21, 88:8-15.)
The
question of whether Defendant provided an adequate warning is a bit more
nuanced. Defendant knew it was removing the shoring but did not provide any
warning signs or place any markings or warnings on the plywood to advise
workers that the shoring had been removed. (Garcia Depo., at 36:5-38:3; Velez
Depo., at 73:5-74:6, 94:13-15; PSAMF, No. 6.) Nor did Defendant take any action
to confirm that Davis had either guardrails or other protective measures in
place. (Velez Depo., at 74:7-15, 85:4-8.) But one day before Plaintiff’s
accident Defendant did warn Davis (at a meeting of all the subcontractors) that
the shoring was being removed and that Davis should make sure that there were fall
protections in place. (Garcia Depo., at 25:3-20; DSUMF, No. 13.)
Ultimately,
on this record, the Court cannot conclude as a matter of law that this communication
to Davis was an adequate warning. A trier of fact could reasonably find that it
was. But a trier of fact could also reasonably find that it was not and conclude
that given the substantial risk of injury to workers – created in part by the
conduct of Defendant – Defendant breached the duty of care by not either (1) putting
additional safety measures in place or (2) taking additional steps to communicate
with Davis, to warn Davis, and to ensure and confirm that Davis had put in
place additional safety measures.
In sum, the
Court concludes that it cannot determine, as a matter of law, that Defendant
did not breach its duty of care. Rather, there are triable issues of fact on
the issue of breach, including with regard to whether Defendant provided
adequate warnings regarding the dangerous condition on the worksite that it
played a role in creating.
Causation
“[T]he causation element of negligence is
satisfied when the plaintiff establishes (1) that the defendant's breach of
duty (his negligent act or omission) was a substantial factor in bringing about
the plaintiff's harm and (2) that there is no rule of law relieving the
defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43
Cal.App.4th 472, 481; accord Union
Pacific Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th 974, 981–982.)
“Ordinarily, proximate cause is a question of fact.” (State Dept. of State
Hospitals v. Super. Ct. (2015) 61 Cal.4th 339, 354.) Where, however, “the
facts are such that the only reasonable conclusion is an absence of causation,
the question is one of law, not of fact.” (Ibid.)
Defendant contends that the proximate cause of
the accident was the acts or omissions of Davis, including the failure of Davis
to provide adequate fall protection regarding a known hazard, as well as the
failure of Davis to provide appropriate safety training to Plaintiff. (Mem. at
pp. 12-15.) But there need not be only one proximate cause of an accident: more
than one proximate cause may each be a substantial factor in causing an
accident. “A defendant’s negligent conduct may combine with another factor to
cause harm; if a defendant’s negligence was a substantial factor in causing the
plaintiff’s harm, then the defendant is responsible for the harm.” (Yanez v.
Plummer (2013) 221 Cal.App.4th 180, 187.) A “defendant cannot avoid
responsibility just because some other person, condition, or event was also a
substantial factor in causing the plaintiff’s harm.” (Ibid.; see also
CACI No. 431.)
On this record, a trier of fact could
reasonably determine that the actions or omissions of Davis played a role – and
perhaps the predominant role – in bringing about Plaintiff’s injuries. But the
trier of fact could also reasonably determine that Defendant’s negligence was
also a substantial factor in causing Plaintiff’s harm. The issue of proximate
causation cannot, on this record, be determined in Defendant’s favor as a
matter of law.
Conclusion
There are triable issues of fact on the questions
of whether Defendant breached a duty to Plaintiff and whether that breach was a
substantial factor in bringing about the accident and Plaintiff’s injuries.
Accordingly, the Court DENIES the motion of
Defendant Covi Concrete Construction, Inc. for summary judgment.
For the same reason, the Court DENIES the
motion for summary adjudication of each cause of action in the complaint.
Moving Party is to give notice.