(1)   Defendant Smith & Sons Construction Inc.’s Motion For Summary Judgment, Or In The Alternative, For Summary Adjudication Of Issue As To The Complaint Of Plaintiffs Haihui Shen And Taihe Wang

 

(2)   Defendant Deutsche Bank National Trust Company’s Joinder to Smith & Sons Construction Inc.’s Defendant Smith & Sons Construction Inc.’s Motion For Summary Judgment For Summary Judgment

 

            Responding Party: Plaintiffs

 

Tentative Ruling

 

(1)   Defendant Smith & Sons Construction Inc.’s Motion For Summary Judgment, Or In The Alternative, For Summary Adjudication Of Issue As To The Complaint Of Plaintiffs Haihui Shen And Taihe Wang. is GRANTED in PART (i.e., as to second cause of action for Premises Liability) and DENIED in PART (i.e., as to first cause of action for Negligence).

 

(2)   Defendant Deutsche Bank National Trust Company’s Joinder to Smith & Sons Construction Inc.’s Defendant Smith & Sons Construction Inc.’s Motion For Summary Judgment For Summary Judgment is GRANTED IN ITS ENTIRETY.

 

Background

 

Plaintiffs Haihui Shen and Taihe Wang (collectively, “Plaintiffs”) allege the following against Defendants Smith & Sons Construction, Inc.; Home Depot U.S.A. Inc.; Deutsche Bank AG; Deutsche Bank Trust Company Americas; Deutsche Bank Mortgage Services; Deustche Bank Americas Holding Corp.; and Deutsche Bank National Trust Company:

Plaintiffs purchased a home in West Covina from Defendant Deutsche Bank on August 31, 2018. Prior to that sale, Deutsche Bank hired Defendants Home Depot and Smith & Sons Construction to remodel the home, including by installing a built-in outdoor grill. While it was being used, the grill exploded in Plaintiff Shen’s face, causing injuries.[1]

 

On February 24, 2020, Plaintiffs Filed Suit Against Defendants For Premises Liability And General Negligence.

 

On April 27, 2020, SMITH & SONS CONSTRUCTION, INC. Filed A CROSS- COMPLAINT Against HOME DEPOT U.S.A., INC.; KITCHENAID, INC.; DEUTSCHE BANK AG; COLDWELL BANKER TOP TEAM; And ROES 1 Through 50, Inclusive For:

 

1.      Equitable Indemnity

2.      Comparative Partial Indemnity

3.      Contribution And

4.      Declaratory Relief

 

On May 12, 2020, Smith & Sons Construction, Inc. Dismissed To Coldwell Banker Top Team.

 

On May 15, 2020, HOME DEPOT U.S.A., INC. File A Cross-Complaint Against SMITH & SONS CONSTRUCTION, INC.; And ROES 1 Through 20 For:[2]

 

1.      Breach Of Contract

2.      Total Equitable Indemnity

3.      Partial Equitable Indemnity

4.      Contribution And Repayment

5.      Declaratory Relief For Duty To Indemnify

6.      Declaratory Relief For Duty To Provide Insurance And

7.      Declaratory Relief To For Duty To Contribute

 

On August 5, 2020, Plaintiffs Dismissed With Prejudice As To The Complaint:

 

1.      Defendant Deutsche Bank Americas Holding Corp,

2.      Deutsche Bank Trust Company Americas,

3.      Deutsche Bank Mortgage Services, Inc, And

4.      Deutsche Bank, Ag.

 

On September 22, 2020, Defendant Smith & Sons Filed A Request For Dismissal Without Prejudice As To The Cross-Complaint Filed On 04/27/2020 By Smith & Sons Construction As To Cross-Defendant Deutsche Bank AG Only.

 

On October 6, 2020, Smith & Sons Filed An Amendment To Its Cross-Complaint Naming DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee For First Franklin Mortgage Loan Trust 2006-FF9 As Roe 1.

 

On April 15, 2021, Defendant Deutsche Bank National Trust Company Filed An MSJ.

           

            On July 7, 2021, Plaintiffs Filed Their Opposition To That MSJ.

 

            On July 16, 2021, Defendant Deutsche Bank National Trust Company Filed Its Reply.

 

On July 21, 2021, The Court Heard Oral Argument On The MSJ, And Took The Matter Under Submission.

 

On September 9, 2021, Judge Serena Murillo issued her final ruling on the MSJ, adopting the tentative and DENYING Defendant Deutsche’s MSJ.

 

On January 13, 2022, Smith & Sons Construction, Inc.’s filed a Motion For Summary Judgment, Or In The Alternative, For Summary Adjudication Of Issue As To The Complaint Of Plaintiffs Haihui Shen And Taihe Wang.

 

On January 14, 2022, Defendants Deutsche Bank National Trust Company, Individually, (“Dbntc”), And Deutsche Bank National Trust Company As Trustee For FIRST FRANKLIN Mortgage Loan Trust 2006-Ff9 (“First Franklin Mortgage Loan Trust 2006-Ff9”) (Collectively “Dbntc Defendants”) filed a ‘Notice Of Joinder Of Defendants Deutsche Bank National Trust Company, Individually, And Deutsche Bank National Trust Company As Trustee For First Franklin Mortgage Loan Trust 2006-Ff9 To Defendants’ Motion For Summary Judgment; Or In The Alternative, For Summary Adjudication Of Issues.’

 

On March 22, 2022, Plaintiffs Filed Their Opposition to Defendant Smith & Sons Construction, Inc.’s Motion For Summary Judgment.

 

On April 1, 2022, Plaintiffs Filed Their Opposition to Defendants Deutsche Bank National Trust Company, Individually, And Deutsche Bank National Trust Company As Trustee For First Franklin Mortgage Loan Trust 2006-Ff9’s Motion For Summary Judgment.

 

On April 4, 2022, The Following Minute Order Was Issued: At the Direction Of Department 1, This Case Is Hereby Ordered Reassigned And Transferred To The East District, The Honorable Judge Thomas Falls Presiding In Department R Of The Pomona Courthouse, For All Purposes Except Trial. Department 1 Hereby Delegates To The Independent Calendar Court The Authority To Assign The Cause For Trial To That Independent Calendar Court. Any Pending Motions Or Hearings, Including Trial Or Status Conferences, Will Be Reset, Continued Or Vacated At The Direction Of The Newly Assigned Independent Calendar Court. (Note: All Hearings Currently Set In Department 29 Of The Spring Street Courthouse Are Taken Off Calendar Subject To Being Reset And Notified By The Receiving Court Re: New Hearing Dates.)

 

On July 7, 2022, This Court Continued The ‘Hearing on Motion For Summary Judgment/Joinder/CMC’ From 07/15/2022 To 08/24/2022.

 

On July 8, 2022, Defendant Deutsche Bank National Trust Company, Individually (“Dbntc”), And Defendant Deutsche Bank National Trust Company As Trustee For First Franklin Mortgage Loan Trust 2006-Ff9 (“First Franklin Mortgage Loan Trust 2006-Ff9”) Filed Their Reply Brief In Support Of Joinder Of Defendants Deutsche Bank National Trust Company, Individually, And Deutsche Bank National Trust Company As Trustee For First Franklin Mortgage Loan Trust 2006-Ff9 To Defendants’ Motion For Summary Judgment; Or In The Alternative, For Summary Adjudication Of Issues.

 

Legal Standard

 

The law of summary judgment provides courts “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 (Aguilar).)  In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)   

 

A moving defendant bears the initial burden of production 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, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

 

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).) 

 

 

 

I.                   Smith & Sons Construction, Inc’s (“SSC”) MSJ

 

Discussion

 

Defendant SSC brings forth the instant MSJ on the following grounds:

 

i.        The Negligence cause of action fails because (a) Defendant SSC did not breach a duty and (b) Plaintiffs cannot demonstrate that Defendant SSC caused Plaintiffs’ injuries and

ii.      The Premises Liability cause of action fails because Defendant SSC did not possess the property; rather, Plaintiffs owned the property prior to and on the date of the incident.

 

1. Negligence Cause of Action

 

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)  

 

A.     Whether Defendant SSC Breached Their Duty to Plaintiffs When Installing the BBQ Grill Appliance Into a Pre-Existing BBQ Island?[3]

 

Defendant SSC’s Burden

 

Defendant SSC argues that it did not breach its duty to Plaintiffs because:

 

Prior to the installation of the BBQ Grill, Defendant did not have any concerns about the condition of the existing gas pipes that were seen from the location where it came out of to the ground to the point where it connected to the new BBQ flex line. There was nothing unusual, notable or atypical concerning the installation of the subject BBQ. SSC, Inc. did not smell any gas leaks before, during or after the installation of the BBQ Grill.

 

(Motion p. 13, citing Statement of Undisputed Material Facts (“UMF”) Nos. 54-56.)

 

In support of its conclusion, Defendant SSC primarily relies on the deposition of Scott Smith (“Smith”), who is “the person that did the actual installation of the grill, put it in together and connected the gas and did the testing,” (See Separately Bound Evidence (“SSC Evidence”) Ex. G. p. 244 of 365 of PDF.)

 

Smith testified that the work was limited to installing the barbeque, which included light adjustments to the opening, installing the refrigerator, retiling, and painting the island. (SSC Evidence, Ex. G. p. 240 of 365 of PDF.) Moreover, Smith testified that after the installation was completed and he did the leak detection spray, he did not observe any leaks because had there been, “it would have bubbled up immediately.”  (SSC Evidence, Ex. G, p. 249 of 365 of PDF.)

 

Here, while Smith’s testimony establishes that he (i) personally observed the facts connected with the installation of the barbeque; (ii) had been working on the installation; and (iii) had performed other work on over 30 other occasions, his testimony says nothing about the manner in which he performed the (i.e., whether Smith complied with industry standards).[4] In the construction context—which is similar to the facts here as it involves the creation or installation of a product—a a  worker “has a duty to perform work in a good and workmanlike manner.” (11 Miller & Starr, Cal. Real Estate (3d ed.2001) section 29:18, p. 20-114 to 29-116, fns. omitted.)

 

Moreover, the “[s]tandard of care and its breach in the construction defect context must usually be established through expert testimony.” (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 75) (emphasis added).

 

Accordingly, as Defendant SSC has not provided any evidence that addresses whether Smith complied with industry standards let alone expert evidence regarding the matter, it has failed to establish that there are no triable issues of material fact as to the issue of breach.

 

Plaintiff’s Burden

 

As Defendant SSC failed to meet its evidentiary burden on the issue of breach, the burden has not shifted to Plaintiffs. (See Doe v. Good Samaritan Hosp. 2018) 23 Cal.App.5th 653, 661-662.)

 

Therefore, there still remains a triable issue of material fact as to whether Defendant SSC breached its duty.

 

B.     Whether Defendant SSC Caused Plaintiffs’ Injuries?

 

Causation is an essential element of establishing liability. (See Tribeca Companies, LLC v. First American Title Insurance Company (2015) 239 Cal.App.4th 1088, 1102-03.) Causation includes both actual cause and proximate cause. (See id. at 1103.) A defendant’s negligence is the actual cause of the plaintiff’s injury if it is a substantial factor in bringing about the harm. (See Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53.)  

 

An essential element of negligence and premises liability claims are that “a defendant’s alleged misconduct was the cause in fact of the plaintiff’s damage.”  (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102-03; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 (stating that the elements for premises liability are the same as those for negligence).)  “In California, the 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.)  “‘If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.’”  (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 (quoting Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861).) 

 

Defendant’s Burden

 

Defendant SSC argues that it did not cause Plaintiffs’ injuries because “[t]he gas company’s post fire inspection identified that the gas leak occurred in the preexisting gas line that is upstream from the location of the BBQ grill installed by SSC, Inc. (the part of the gas line that SSC Inc. did not install.)” (Motion p. 7) (underline original).

 

In reaching this conclusion, Defendant SSC relies on the depositions of Aaron Carillo (“Carillo”), who is a resident energy technician, and Jesse Camargo (“Camargo”), a Fields Operation Supervisor who also inspected the property.

 

However, though Defendant SSC explains both Carillo’s and Camargo’s testimonies are not expert testimony, they indeed amount to such. If a matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the party to introduce expert opinion evidence . . . [t]his rule does not apply, however, when the ‘negligence is obvious to a layperson.’” (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 761-762.)

 

Here, Camargo testifies to leak detection—based upon his years of experience—which is outside a layperson’s common knowledge. (SSC Evidence, Ex. F.) Carillo also testifies to gas leaks based upon his experience dealing with “fifty to a hundred, if not more” outdoor appliances that have had gas leaks. (SSC Evidence, Ex. G, p. 271 of 365 of PDF).

 

Thus, both Camargo and Castillo are providing opinions on matters that, by their very own concessions, were deduced based upon their extensive skill and training, none based upon common knowledge.

 

Accordingly, Defendant SSC has failed to meet its evidentiary burden that it did not cause Plaintiffs’ injuries because it failed to submit appropriate expert evidence.[5]

 

Plaintiffs’ Burden

 

As stated above, the burden has not shifted.[6]

 

Accordingly, there remains a triable issue of material fact as to whether Defendant SSC caused Plaintiffs’ injuries.

 

Therefore, the motion for summary adjudication as to the negligence cause of action is DENIED because Defendant SSC failed to establish that there are no triable issues of material fact as to the Negligence cause of action.

 

2. Premises Liability

 

To establish premises liability, plaintiff must prove that the defendant breached a duty of care owed to the plaintiff that proximately caused injury and damages. “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  

 

Whether Defendant SSC Possessed or Controlled the Property at the Time of the Incident?

 

Defendant’s Burden

 

Defendant SSC argues that there is no evidence that it “had any ownership interest or right to control the subject property before, during or after construction. The scope of work performed by [Defendant SSC] was specified by Home Depot.” (Motion p. 20, relying on UMF Nos. 20-24 and Nos. 147-162.) Moreover, since Defendant SSC completed the work, approximately nine-ten months elapsed before the incident. (Motion pp. 20-21.) Rather, it was Plaintiffs who owned the property for approximately five-six months before the subject incident. (Motion p. 21, citing UMF Nos. 1-19 and Nos. 148-162.)

 

Here, it is undisputed that Plaintiffs purchased the home in October 2018, prior to the March 23, 2019 incident. (UMF No. 147.) Although title ownership may be indicative of the right to possession and control, the analysis test in a premises liability cause of action is whether the defendant possesses or controls the property. Under the Third Restatement of Torts, a possessor of land is (a) a person who occupies the land and controls it; (b) a person entitled to immediate occupation and control of the land, if no other person is a possessor of the land under subsection (a); or (c) a person who had occupied the land and controlled it, if no other person subsequently became a possessor under subsection (a) or (b). (Rest.3d, Torts: Liability for Physical and Emotional Harm § 49.) A possessor is defined as “[s]omeone who has possession of real or personal property; esp., a person who is in occupancy of land with the intent to control it or has been but no longer is in that position, but no one else has gained occupancy or has a right to gain it.” (Blacks Law Dict. (11th ed. 2019).)

 

As such, Defendant SSC has established that it neither owned the property (Plaintiffs did) and neither controlled the property (because another person, Plaintiffs, were its owners, possessors, and those in control).

 

Therefore, Defendant SSC has met its burden to establish that there are no triable issues of material fact as to the threshold issue of being in possession of the land.

 

Plaintiffs’ Burden

 

In Opposition, Plaintiffs briefly state the following:

 

SSC was hired to perform the subject BBQ island work. SSC, as the on-site contractor, had control of the subject property, including the BBQ Island during the course of its work. SSC was the only one who performed work at the BBQ Island and SSC’s work was substandard and negligent such that it created and/or contributed to the dangerous condition that caused the incident and injuries. SSC had a duty to protect future homeowners from this dangerous condition.

 

(Opp. p. 11, citing Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162.)

 

Here, however, Plaintiffs miss the mark as they fail to proffer evidence to refute the contention that Defendant SSC neither possessed nor controlled the property.

 

Accordingly, Plaintiffs failed to meet their burden in establishing that triable issues of material fact exist as to the second cause of action for Premises Liability.

 

Therefore, as there can be no liability without ownership, control, or possession, the second cause of action for premises liability fails. (Isaacs v. Huntington Memorial Hospital, et al. (1985) 38 Cal.3d 112, 135.)

 

Thus, summary adjudication as to the second cause of action is GRANTED.

 

Conclusion

 

 

II.                Defendant Deutsche Bank National Trust Company’s Joinder

 

A party may join a motion for summary judgment by filing a separate statement that identifies the evidence demonstrating that the joining party is entitled to summary judgment.  (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.)  In addition, the party must provide the notice required in CCP section 437c when they file the joinder. (Id., at 636-37.)[7] Furthermore, CCP section 437c, subdivision (a) requires that “[n]otice of the motion [for summary judgment] and support papers shall be served on all other parties to the action at least 28 days before the time appointed for the hearing.”  

 

Premises Liability

 

Here, the Deutsche Bank National Trust Company has included a separate statement with its joinder. Additionally, the proof of service provides more than 75 days’ notice.

 

Therefore, in effective, the Deutsche Bank National Trust Company’s motion is also granted in part as to the premises liability cause of action.

 

Negligence

 

Defendant Deutsche Bank National Trust Company’s Burden

 

The basis of Defendant’s argument in that it did not breach its duty is that Plaintiffs purchased the property “as is.”

 

Indeed, the agreement shows that Plaintiffs “acknowledges and agrees to accept the property in “as is” condition at the time of closing, including, without limitation, any latent or apparent defects or environmental conditions affecting the property, whether known or unknown, whether such defects or conditions were discoverable through inspection or not, to the full extent permitted by applicable law.” (Motion p. 8, citing Defendants’ UMF No. 78) (emphasis added). Moreover, this waiver acknowledges that Plaintiffs understood that the Bank was not making any representation, warranty or guarantee as to the physical condition of the subject property.

 

Therefore, Defendant Deutsche Bank National Trust Company has met its burden by offering evidence as to the issue of whether it breached its duty.

 

Plaintiffs’ Burden

 

In Opposition, Plaintiffs argue that “in a complete reversal in logic, the Bank blames the Plaintiffs for failing to inspect a brand-new BBQ Grill/Island the Bank had just installed illegally without a permit, that the Plaintiffs had no control of during its construction, but for which the Plaintiffs paid extra in the contract price with the Bank.” (Opp. p. 11.)

 

This, however, is not evidence.

 

Therefore, Plaintiffs failed to meet their burden.

 

Accordingly, the MSJ is granted as to the negligence cause of action.

 

Conclusion

 

Based on the foregoing, Defendant Deutsche Bank National Trust Company’s MSJ is GRANTED IN ITS ENTIRETY.