Judge: Theodore R. Howard, Case: 21-1190391, Date: 2023-08-24 Tentative Ruling

The Motion for Summary Judgment filed by Defendant/Cross-Defendant, Wiegert Construction, Inc. (“Wiegert”) is DENIED.

In ruling on a motion for summary judgment, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (CCP § 437c(c)) and must view the evidence and inferences “in the light most favorable to the opposing party.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see Ragland v. U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199.)

The court’s sole function on a motion for summary judgment is issue-finding, not issue-determination.  The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.”  (C.C.P. § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (citing text).)

Wiegert moves for an order granting summary judgment in its favor as to the complaint of Plaintiff, Amal Al Refaie (“Plaintiff”) and the cross-complaints of Alta Services Inc., dba Alta Contracting (“Alta”) and Sudyka Construction, Inc. (“Sudyka”).

The Court finds triable issues exist as to whether Wiegert owed Plaintiff a duty of care and whether its work caused Plaintiff’s injury.  Wiegert focuses on evidence purportedly showing that it did not begin work on the temporary walkways until after the incident, but Wiegert’s own evidence confirms that it performed “general preparation” and “doorway-related work” prior to the incident.  (SSUF 60; Declaration of Michael Wiegert [“Wiegert Decl.], ¶ 20.)  The extent of this “general preparation” and “doorway-related work” is unclear from the moving papers.  Further, there is no discussion or evidence presented by Wiegert showing that this “general preparation” and/or “doorway-related work” could not have caused or contributed to Plaintiff’s injury.  Thus, triable issues exist as to whether Wiegert owed Plaintiff a duty of care at least with respect to said “general preparation” and “doorway-related work” and whether said work was a substantial factor in causing Plaintiff’s injury.  (Cal Civ. Code §1714; see also, Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1271.)

As such, Wiegert failed to meet its initial burden of demonstrating the nonexistence of any triable issue of fact as to duty of care, breach and causation.  (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 [elements of negligence].)  Accordingly, the burden did not shift to Plaintiff.

Even if Wiegert met its initial burden, Plaintiff submitted evidence raising a triable issue of fact as to when Wiegert began work on the temporary walkways at the location of the incident.  (See Plaintiff’s Exhibit B [Deposition of Brandon Sandridge at pp. 52:20-53:3; 57:12-22; 64:6-15; 72:8-13; 72:24-73:8; 73:19-21; 75:1-4, 13-19; and 75:8-12].)  The Court finds the foregoing evidence is sufficient to raise a triable issue of material fact as to when Wiegert began work on the temporary walkway and thus whether Wiegert owed Plaintiff a duty of care.

Because triable issues remain as to whether Wiegert can be liable for Plaintiff’s injuries, triable issues also necessarily remain as to whether Wiegert can be held liable to Alta and Sudyka on their cross-complaints for equitable indemnity, contribution, and declaratory relief.

Accordingly, the motion is DENIED.

Plaintiff’s request for judicial notice is GRANTED.  (Ev. Code §452(d).)

The Court declines to rule on Wiegert’s evidentiary objections.  (C.C.P. § 437c(q).)

Counsel for Plaintiff is to give notice.