2015-00186857-CU-PO

Luis Olguin vs. Bouey Termite & Construction, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Griffith, Amanda

Defendant Bouey Termite Construction, Inc.’s (“Bouey”) Motion for Summary Judgment/Summary Adjudication is denied.

The trial date is May 8, 2018.

The parties’ Requests for Judicial Notice are granted.

Defendant’s Evidentiary Objections are sustained/overruled as follows:

See Formal Order for Ruling on Evidentiary Objections where the Court as separately ruled on each objection:

Declaration of Sheehan:

Overruled as to Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 19, 20, 21, 23, 24, 25, 26, and 27.

Sustained as to Nos. 6, 15, 17, 18, and 22.

This action stems from a fall from a roof by plaintiff Olguin who was working for Merit Roofing at a residential site. Plaintiff alleges the fall took place on March 13, 2014 while Olguin was removing roof tiles to repair a roof leak at the rear of the residence. The Complaint was filed on November 17, 2015 against pest control/general contractor company Defendant Bouey.

The Complaint alleges that Bouey made improper repairs to the roof in 2011 that

resulted in plaintiff’s fall. The Court granted plaintiff’s motion to file a First Amended Complaint which replaced the premises liability claim with a negligence claim. In allowing the amendment, the Court ruled that the pending motion for summary judgment set for this date will go forward, and that the currently filed Answer will be deemed to apply to the Negligence cause of action in the First Amended Complaint rather than the premises liability claim in the Original Complaint. This is appropriate where the amendment is merely as to formal or immaterial matters, and does not change the cause of action. Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808. Premises liability is a type of negligence. See, e.g. Collins v. Navistar, Inc. (2013) 214 Cal. App. 4th 1486, 1490; Sprecher v. Adamson Companies (1981) 30 Cal. 3d 358, 372.The parties have fully briefed the issues.

Plaintiff’s Request for Judicial Notice is granted.

Plaintiff alleges a cause of action for negligence against Bouey. The State Compensation Insurance Fund (“SCIF”) has filed a complaint in subrogation seeking recovery of its workers compensation benefits paid. Both Plaintiff and SCIF have opposed the motion. SCIF’s timely Joinder in the opposition filed by plaintiff is granted, although the Court notes that while a party may join in the legal or factual arguments another party makes in a motion or other request for relief, that “joinder” does not entitle the joining party to any relief. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1390-1391, superseded by statute on another issue as stated in Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 685, fn. 7; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 46-47.)

In moving for summary judgment, a party need not negate an element of the plaintiff’s claim, but rather may show by admissible evidence that plaintiff will not be able to obtain evidence by the time of trial to support each element of his claim. Bouey does not present affirmative evidence to prove that it did not perform the roof repairs that caused plaintiff’s injuries. Rather, Bouey contends that plaintiff will be unable to prove at trial that any work performed by Bouey caused damage to plaintiff. Plaintiff alleges that he fell from the roof when he slipped on an area where Bouey had performed a defective roof repair in the rear of the home. Plaintiff contends that the fall occurred because the roof sheathing and fascia that comprised the rear roof eave had collapsed beneath plaintiff due to defective dry rot repairs. Bouey contends that the defective pieces of the roof were found on the ground near where plaintiff fell, but that plaintiff’s employer, Merit Roofing, thereafter lost the items. Bouey contends that plaintiff will not be able to prove that Bouey performed the roof repair in the area where plaintiff fell.

Bouey presents evidence that it performed a wood destroying pests and organisms inspection in June of 2011, by David Harris, in which it recommended repairs to the area where plaintiff fell. Another inspection company, AIPM, was hired by the current owners of the house in July of 2011. AIPM also recommended repairs to the roof, including a type of repair not mentioned by Bouey involving a “V-Rustic” sheathing. Bouey came out to the property in August 2011 to perform a second inspection. At that time, Bouey contends that “it was noted” that some repair to areas 10A and “a portion of” 11B noted in their June 2011 report had been made by a third party. (UMFs 1- 8) On September 3, 2011, Bouey performed repair work as recommended in its June 2011 report. (UMF 12-13) Plaintiff has no personal knowledge as to whether Defendant made the improper repairs. (UMF 24) Holsey, of Merit Roofing, states that the board that was improperly secured was a piece of 1×8 V-Rustic. (UMF 26)

Neither the June 18 nor the August 22 Bouey inspections called for “V-Rustic” sheathing. (UMF 9-10) Bouey contends that since it did not include any V-Rustic sheathing in a supplemental work order, it must not have performed the repair.

Bouey’s points and authorities contain many facts that are not set forth in the separate statement, such as how Olguin was hired and the details of a Cal-OSHA investigation. The Court is considering only the facts that Bouey has deemed material enough to this case to be placed in the separate statement. “[I]n ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party’s separate statement of undisputed facts. San Diego Watercrafts, Inc. v Wells Fargo Bank NA (2002) 102 Cal.App.4th 308, 315.

A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 2 C4th at

853-855). Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists with regard to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v Atlantic Richfield (2001) 25 Cal.4th 826, 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67. In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar , supra, at p.843.) (emphasis added)

In opposition, Plaintiff contends that Bouey performed the improper dry rot repairs to the rear roof eave area where the fall occurred. Specifically, plaintiff contends that Bouey improperly saw-cut the old dry rot pieces from underneath the eve and installed replacement pieces from underneath and secured the pieces with only finishing nails and caulking. Moreover, in the Notice of Completion (Ex. L Declaration of Kerry Miller Ex. D), Bouey represented that it completed the repairs to the fascia in the area where the fall occurred at 11 B of the June 2011 Report, Ex. A to Declaration of Kerry Miller.

However, Bouey contends that it did not repair the adjacent roof sheathing that consisted of “V-Rustic” sheathing, because it never charged for the work. (UMF 18.) Bouey also presents evidence that the V-Rustic sheathing had been freshly painted according to Merit Roofing employee Holsey (UMF 33), giving rise to the inference that it was not part of Bouey’s work three years earlier. Plaintiff contends that since defective fascia repair was completed by Bouey as a “portion” of the 11B repair, there is a triable issue of material fact as to whether the Bouey repair to the fascia contributed to plaintiff’s fall. Plaintiff has also presented evidence that Bouey’s Notice of Completion states that it completed repairs in the area where plaintiff fell three years later. Plaintiff has presented the declaration of his expert, John Sheehan, who states that Bouey’s improper repair of the fascia, along with the adjacent sheathing, caused the roof eave to collapse. He opines the repair was defective because the sheathing and fascia had been saw-cut from underneath by using a “sawzall” and removed. He

opines that it is likely that the same person repaired the fascia and the sheathing because both repairs were performed in a similarly defective manner. Sheehan reviewed before and after photos to form his opinion that the repair work was defective. Sheehan also noted that the improper manner of repair was also utilized by Bouey in the front of the house, leading to the inference the Bouey performed the work instead of an unknown third party because they admit they completed the work at the front of the house. (Declaration of Sheehan Ex A to Plaintiff’s compendium of evidence; plaintiff’s UMFs 46, 49) ) The homeowner, Todd Bomberger, testified that no other repairs were made to the same area of the house where Mr. Olguin fell from other than by Bouey prior to the close of escrow on September 12, 2011 (Depo Bomberger Pages 36, 51) After plaintiff’s fall, Holsey of Merit Roofing repaired the eave damage and invoiced him as follows: “Removed and replaced tile. Replaced 1×8 V Rustic. Improperly Installed.” (Depo of Todd Bomberger page 31) Thus, there are triable issues of material fact as to whether Bouey’s repair work contributed to plaintiff’s injuries.

In opposition, SCIF presents evidence that no third party had done any repairs before Bouey’s second inspection. David Harris stated at his deposition that when Bouey went out to the property the second time, no other work had been completed by others. (Harris Depo. page 38, lines 8-10)

The Court finds that Bouey has failed to meet its burden of persuasion in its moving papers. The facts set forth in the separate statement do not establish that plaintiff cannot prove causation, i.e. that plaintiff does not possess and cannot reasonable obtain evidence necessary to show this element. Since Bouey did not meet its burden, the burden never shifted to plaintiff to present admissible evidence. However, as shown above, plaintiff and SCIF have presented facts in the opposition from which a trier of fact could infer that Bouey performed the roof repair in the area where plaintiff fell.

In addition to contending that plaintiff cannot prove causation, Bouey also contends plaintiff cannot prevail on a premises liability claim because Bouey does not own, lease, occupy or control the property. However, since the Court has allowed plaintiff to file an amended complaint replacing the premises liability cause of action with a cause of action for negligence, this argument is now moot.