Case Name: Flores, et al. v. R&S Erection of Santa Clara
Case No.: 17CV314049

Cross-defendant Charles F. Johnisee, Trustee of the Charles F. Johnisee Living Trust Dated December 23, 2013 (“Johnisee”), moves for summary judgment, or in the alternative, summary adjudication, in his favor and against defendant/cross-complainant/cross-defendant R&S Erection of Santa Clara (“R&S”) on R&S’s First Amended Cross-Complaint (“FACC”).

I. Factual and Procedural Background

This is a cross-action for indemnity and contribution arising out of injuries suffered by plaintiff Israel Flores (“Plaintiff”). According to the allegations of the underlying complaint (“Complaint”), on May 10, 2017, Plaintiff, a truck driver, was loading his truck at the Sunbelt Rentals yard located in San Jose when an improperly repaired entry gate fell and struck him in the head, neck, back, right shoulder and right leg, causing him injury. (Complaint, ¶ 22.) Plaintiff (and his wife) initially filed an action against R&S, a subcontractor on site who was allegedly responsible for erecting, maintaining and repairing the gate, on August 4, 2017. A host of cross-actions followed, including the one that is the subject of the instant motion.

In particular, on January 24, 2019, R&S filed the FACC against Plaintiff’s employer, Sunbelt Rentals (“Sunbelt”) and Johnisee, the owner of the property on which the Sunbelt Rental yards is located and Plaintiff was injured. (FACC, ¶ 4.) R&S alleges that it modified the gate at Sunbelt’s request and that Sunbelt, the tenant, and Johnisee, its landlord, were negligent in the use or maintenance of the gate, which was a substantial factor in causing Plaintiff’s injuries. R&S asserts claims against Sunbelt and Johnisee for (1) negligence/unsafe conditions, (2) comparative fault, (3) comparative indemnity, (4) total equitable indemnity, (5) contribution and (6) declaratory relief.

On January 17, 2019, Johnisee filed the instant motion for summary judgment, or in the alternative, summary adjudication. R&S opposes the motion.

II. Johnisee’s Request for Judicial Notice

In support of his motion for summary judgment/adjudication, Johnisee requests that the Court take judicial notice of the Complaint (Exhibit 1), the FACC (Exhibit 2) and his answer to the FACC (Exhibit 3). As these items are all court records, they are proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (d). Consequently, Johnisee’s request is GRANTED.

III. Johnisee’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

A. Burden of Proof

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

B. Analysis

With the instant motion, Johnisee maintain that summary judgment in his favor as to the FACC filed by R&S is warranted for the following reasons: (1) he owned no legal duty of care to R&S or Plaintiff (and his wife) to protect them from the unforeseeable hazard of the gate falling after R&S had modified it at Sunbelt’s request; (2) with no discrete injury of its own, R&S lacks standing to bring a negligence claim against Johnisee; and (3) R&S suffered no compensable injuries/damages that were caused by Johnisee. Johnisee contends that because the existence of a legal duty of care is a predicate for finding liability on R&S’s claims for comparative fault, indemnification, contribution and declaratory relief, and such duty does not exist in the circumstances of this action, R&S cannot succeed on these causes of action.

1. Johnisee’s Undisputed Material Facts

In support of his motion for summary judgment/adjudication, Johnisee presents the following purportedly undisputed facts: Johnisee is the owner of the real property (the “Property”) in San Jose upon which the incident that is the subject of these actions took place. (Johnisee’s Separate Statement of Undisputed Materials Facts in Support of MSJ/MSA (“UMF”) Nos. 1, 32, 54, 76, 98, 121.) The Property consists of approximately 2.05 acres, enclosed by a wrought and channel iron fence approximately 9 feet in height. (Declaration of Charles F. Johnisee in Support of MSJ/MSA (“Johnisee Decl.”), ¶¶ 3-4, Exhibit B.)

On December 14, 2011, Johnisee and Sunbelt entered into a written commercial lease of the Property (the “Lease”). (UMF Nos. 3, 34, 56, 78, 100, 123.) Of particular relevance, the Lease provided that the Property was being delivered to Sunbelt in its “AS IS” condition following Sunbelt’s investigation and testing of the Property and that Sunbelt was solely responsible for the maintenance and repair of the Property. (UMF Nos. 4, 5, 35, 36, 57, 58, 79, 80, 101, 102, 124, 125.) Since the inception of the Lease, Sunbelt has occupied the Property and used and maintained the gate system on a regular basis. (UMF Nos. 6, 37, 59, 81, 103, 126.)

A gate in the fence for ingress and egress to the Property is located on Alum Rock Avenue. (Johnisee Decl., ¶ 3, Exhibit B.) Prior to April 10, 2017, the gate was strictly a “slide gate” that rolled on wheels along the fence line. (Declaration of Maria Bellafronto in Support of MSJ/MSA (“Bellafronto Decl.”), ¶ 5, Exhibit D (Deposition of Jeffrey Martinez) at 14:21-15:10.) Throughout the term of the Lease and its renewal term, Sunbelt experienced no difficulties with the gate and as the occupying tenant of the Property, performed regular maintenance on it (e.g., lubricating and washing the track) as necessary. (UMF Nos. 7, 8, 38, 39, 60, 61, 82, 83, 104, 105, 127, 128.) Johnisee was never notified of any need to maintain, repair or replace the gate system and did not receive any complaints regarding its use or operation prior to Plaintiff’s accident. (UMF Nos. 9, 10, 40, 41, 62, 63, 84, 85, 106, 107, 129, 130.)

Sunbelt operates an equipment rental facility on the Property and thus the gate was primarily used for the ingress and egress of larger vehicles and trucks. (Johnisee Decl., Exhibit B; Bellafronto Decl., ¶ 4, Exhibit C (Deposition of John Delgado) at 98:20-99:17, 132:2-.) In 2016, Sunbelt became aware of changes that the City of San Jose was making to Alum Rock Avenue that impacted the ingress and egress of larger vehicles to the Property, specifically those which would make it more difficult for such vehicles to maneuver to turn into the driveway of the Property. (Bellafronto Decl., ¶ 3, Exhibit B (Deposition of James Cretcher III) at 40:2-6, 60:24-61:20, 85:14-86:16, 86:8-87:10.) Consequently, and unbeknownst to Johnisee, Sunbelt decided to make modifications to the gate to alleviate the difficulty and enlisted R&S to do so. (UMF Nos. 11-13, 42-44, 64-66, 86-88, 108-110, 131-133.) R&S, a door a gate company with over thirty-five years of experience in the industry, issued an offer to Sunbelt in February 2017 to perform a modification to the gate system to widen the entrance to the Property. (Id.) In the offer, R&S specifically proposed to cut off part of the front end of the existing fencing and modify the panel to be made into a “swing gate leaf” mounted to the closing post of the slide gate. (Bellafronto Decl., ¶ 6, Exhibit E (Deposition of Jeffrey Martinez, Exhibit 6).) The offer was accepted by Sunbelt’s branch manager, John Delgado, on March 28, 2017, but Sunbelt never informed Johnisee (let alone consulted with him) about any work that R&S performed on the gate system, and R&S never had any of its own communications with him. (UMF Nos. 14-16, 67-69, 89-92, 111-114, 134-137.)

Ultimately, R&S modified the slide gate and fence by extending the distance the slide gate travelled and turning a portion of the fence into a swing gate which connected to the existing slide gate. (UMF Nos. 18, 49, 71, 93, 115, 138.) This work involved numerous steps and resulted in the slide portion of the gate system opening an additional nine feet past where it previously opened. (Bellafronto Decl., Exhibit J (Deposition of Dana Thompson) at 54:7-14.) R&S did not provide any training materials, written instructions, or safety or maintenance manuals to Sunbelt on how to properly operate the gate and fence system following the modifications. (UMF Nos. 19, 50, 72, 72, 94, 116, 139.) R&S acknowledged that prior to any of its modifications, the previously installed gate and fence operated normally and was sufficient to prevent the gate from tipping over. (UMF Nos. 20, 21, 51, 52, 73, 74, 95, 96, 117, 118, 140, 141.)

A month after R&S’s modifications to the gate, on May 10, 2017, Plaintiff, who had not received any instructions on how to close the gate, was injured when the gate fell on him as he attempted to close it for the evening. (UMF Nos. 22, 53, 75, 97, 119, 142.) Specifically, Plaintiff attempted to push the slide gate to the “stopped position” so he could then close the “little” swing gate. (Bellafronto Decl., Exhibit K [Plaintiff’s Deposition) at 115:25-116:18, 117:7-25, 138:25-139:3, 140:10.) When the slide gate arrived at the point where it was to connect with the swing gate, the slide gate fell on top of him, pinning him beneath. (Id. at 117:16-25; 130:9-23.) Upon returning to the Property after the incident, R&S determined that at least one of the stops that it had installed on the gate and fence system had broken. (Bellafronto Decl., Exhibit J (Thompson Depo.) at 42:19-43-43:14.)

2. Negligence (First Cause of Action)

With its first cause of action for negligence, R&S alleges that Johnisee was “negligent in the use or maintenance of the property” because: (1) Johnisee knew or should have known that the condition on the property created an unreasonable risk of harm, “namely that the subject gate posed a falling risk”; (2) Johnisee knew, or through the exercise of reasonable care, should have known of that risk; and (3) Johnisee failed to maintain and repair the condition and to protect against harm from the condition, causing the gate to fall on Plaintiff. (FACC, ¶ 14.)

a. Duty of Care

The elements of a claim for negligence are (1) the existence of a legal duty to use due care, (2) a breach of that legal duty and (3) the breach of that duty as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The disposition of Johnisee’s motion relative to the negligence claim and, indeed, to FACC as to him in its entirety, is primarily dependent on whether Johnisee owed R&S or Plaintiff a duty of care and, if so, the extent of that duty. (See 6 Miller & Starr, Cal. Real Estate (4th ed. 2016) Landowner’s Liability, ¶ 19:42 [explaining that “[i]n order to establish a landowner’s liability for injury on the premises, the injured party must establish that the owner has a duty of care to the injured party, that there was a breach of the duty of care that was the proximate cause of the injuries, and the injured party suffered damages”].) In the first instance, “[t]he existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide.” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.)

As a general matter, among “the criteria for determining whether a [landowner] acted with ordinary care in the management of his property are: the likelihood of injury, the probable serious of such injury, the burden of reducing or avoiding the risk, and his degree of control over the risk-creating defect.” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779 [internal citations omitted].) California courts place “major importance on the existence of possession and control [citations], because this factor is relevant in determining if the [landowner] acted reasonably under the circumstances. It would not be reasonable to charge a [landowner] with liability if the [landowner] did not have the power, opportunity and ability to eliminate the danger.” (Id. at 779-780.) As Johnisee maintains in his supporting memorandum, it is well settled that a commercial landlord not in possession will not be liable solely by virtue of owning property where the property was in a reasonably safe condition at the time the landlord relinquished possession and dangerous conditions on the property were not foreseeable. (See, e.g., Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 671-672.) Generally, a commercial landlord will not owe a duty to another for defective conditions occurring after the subject property was transferred to a tenant if, at the time the tenant took possession, the premises was in a reasonably safe condition. (Mora v. Baker Commodities, supra, 210 Cal.App.3d at 781.) However, a commercial landowner also cannot totally abrogate its landowner responsibilities merely by signing a lease. (Id.) “As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons.” (Becker v. IRM Corp. (1995) 38 Cal. 3d 454, 468 [overruled on other grounds].) At the time the lease is executed and upon renewal, a landlord has a right to reenter the property, has control of the property, and must inspect to make the premises reasonably safe from dangerous conditions. (Mora, 210 Cal.App.3d at 781.)

But a landlord’s responsibility to inspect is limited; he or she has a duty “only with those matters which would have been disclosed by a reasonable inspection.” (Becker v. IRM Corp., supra, 38 Cal.3d at 469.) The landlord need only do what is reasonable under the circumstances and is not obligated to take extraordinary measures or make unreasonable expenditures in trying to discover hazards unless the circumstances so warrant. (Mora v. Baker Commodities, 210 Cal.App.3d at 782.) “When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However if no such inspection is warranted, the landlord has no such obligation.” (Id.)

The evidence submitted by Johnisee demonstrates that: he was a commercial landlord not in possession of the Property; the Property was in a reasonably safe condition when the Lease commenced (i.e., the then-unmodified subject gate did not pose a falling risk as alleged by R&S), and there were no known or discoverable hazardous conditions with the gate system. (UMF Nos. 6, 8-10.) At the time of Plaintiff’s injury, Sunbelt was in possession of the Property pursuant to the Lease, which provided that possession was delivered to it in its “As is” condition after Sunbelt performed an investigation and testing of the Property. (UMF Nos. 4-5.) Sunbelt was solely and contractually responsible for the maintenance and repair of the Property, and experienced no difficulties with the gate system or its operation prior to R&S’s modifications. (UMF Nos. 7-8.) During this time, Johnisee was not provided with any notice that the gate and fence system was malfunctioning, or otherwise not operating correctly. (UMF No. 9.) Consequently, it was not foreseeable that there would be any safety issue with the gate as any further inspection would have merely disclosed that Sunbelt was experiencing- a safe, functioning gate system.

At no point did Sunbelt communicate to Johnisee its intention to enlist R&S to modify the gate in response to changes made to Alum Rock Avenue by the City of San Jose and he was never consulted regarding the changes made. (UMF Nos. 12, 15, 16, 17.) Further, R&S itself experienced no issues with the gate system prior to performing modifications to it in April 2017. (UMF No. 20.) R&S’s CEO, Dana Thompson (“Thompson”), specifically testified during his deposition that when the company first worked on the gate, it was “okay,” rolled “fairly good” and “worked properly.” (Id.) R&S’s General Manager and Head Estimator, Jeffrey Martinez (“Martinez”), explained during his deposition that when the company initially evaluated the gate in order to compile an estimate on the modification work, the gate rolled properly and there was nothing that gave him cause for concern when he pushed the gate. (Id.) Critically, R&S further acknowledged that the sliding gate and fence system previously installed on the Property was sufficient to prevent the gate from tipping over. (UMF No. 21.) This portion was part of what was modified by R&S to enable the gate to open an additional nine feet past where it previously opened and for a swing gate to be added. (UMF No. 18.)

Per Johnisee’s evidentiary showing, there was no foreseeable danger concerning the gate when he handed over possession of the Property to Sunbelt, and he was not required to take extraordinary measures to discover subsequent dangers involving the gate as a result of modifications made by R&S of which he was completely unaware. Thus, Johnisee has demonstrated that he did not owe Plaintiff/R&S a duty of care with respect to the gate and its risk of falling.

In its opposition, R&S maintains that Johnisee had a non-delegable duty to inspect the Property and ascertain its condition, and failed to do so. It further asserts that Johnisee’s lack of knowledge of a defect concerning the gate is not a defense to his failure to meet his obligations as the landowner. In making these arguments, R&S relies on Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330 and Portillo v. Aiassa (1994) 27 Cal.App.1128, 1134. These cases, however, involved clearly visible conditions that would have been observable on any inspection and that the landowner nevertheless failed to address. The Court is not aware of any case which provides that a landowner has a duty to inspect his or her property for latent or potential defects. Per Johnisee’s evidence, there were no issues with the gate system when Sunbelt took possession of the Property and when the Lease was renewed, and therefore no evidence (either from Johnisee or R&S) that there were gate-related problems that a reasonable inspection would have uncovered at either of those points in time. R&S has also offered nothing that counters Johnisee’s showing that the gate in particular was in a reasonably safe condition when possession was transferred to Sunbelt, nor which suggests that any potentially dangerous situation involving the gate was foreseeable to Johnisee, who had no notice that modifications were being performed on the gate in the first place. Consequently, the Court finds that R&S has not demonstrated the existence of any triable issues of material fact with respect to Johnisee’s duties concerning the gate system. Thus, summary adjudication of R&S’s negligence claim in Johnisee’s favor is warranted based on a lack of a duty of care.

b. Standing

Johnisee next argues that irrespective of whether he owed a duty of care as alleged by R&S, the first cause of action for negligence fails as a matter of law because R&S lacks standing to assert it. R&S’s negligence claim, Johnisee explains, is nothing more than a disguised claim for indemnity, with R&S pleading that Johnisee’s alleged negligence was a substantial factor in causing Plaintiff’s injuries, and that as a result, R&S has been compelled to incur attorney’s fees and costs to answer Plaintiff’s Complaint and file its own cross-complaint.

Johnisee’s contention is well taken. “Every action must be prosecuted in the name of the real party in interest.” (Code Civ. Proc., § 367.) The real party in interest is generally the person who owns title to the claim or property involved (see Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566) and who has “an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1032 [internal citation omitted]). In order to have standing to sue, “a person, of those whom he properly represents, must have a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.” (Martin, 173 Cal.App.4th at 1032 [internal citations and quotations omitted].)

Here, R&S are not the parties injured by Johnisee’s purported negligence, Plaintiff is. Consequently, R&S cannot maintain its own claim for negligence against Johnisee as it does not claim any injury suffered as a result of any of his allegedly negligent actions. Thus, R&S cannot succeed on this claim and summary adjudication in Johnisee’s favor is appropriate.

3. Comparative Fault, Comparative Indemnity, Total Equitable Indemnity and Contribution (Second, Third, Fourth and Fifth Causes of Action)

Johnsiee next asserts that R&S’s second through fifth causes of action fail because all are predicated on him being liable for the underlying negligence that resulted in Plaintiff’s injuries, and such liability can only be imposed if Johnisee owed Plaintiff and R&S a duty of care that he breached. (FACC, ¶¶ 18, 23, 25-26, 30.) Indeed, claims for comparative fault, comparative indemnity, total equitable indemnity and contribution are predicated on the same premise: that a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for damage attributable to that injury. (See, e.g., American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578; Code Civ. Proc., § 875; CACI Nos. 406 and 3800.) Generally speaking, with limited exceptions, there must be some basis for tort liability against the proposed indemnitor. (BFGC Architects Planners, Inc. v. Focum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.) It is typically based on a duty owed to the underlying plaintiff. (Id.; Stop Loss Ins. Brokers, Inc. v. Brown Toland Med. Group (2006) 143 Cal.App.4th 1036, 1040 [“It is well-settled in California that equitable indemnity is only available among tortfeasors who are jointly and severally liable for the plaintiff’s injury”]; Fireman’s Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1293 [explaining that equitable contribution “is the right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution”].)

Here, as articulated above, Johnisee had no underlying legal duty to Plaintiff where there was no foreseeability of any dangerous condition with the gate system that could have been anticipated by him as: the Property was occupied by and in the possession of Sunbelt (UMF Nos. 32, 34, 37, 54, 56, 59, 76, 78, 81, 98, 100, 103); at neither the inception of the Lease nor its renewal did Sunbelt inform Johnisee of any problem or issue with the gate system (UMF Nos. 37-40, 59-62, 81-84, 103-106); Johnisee has no knowledge of any injuries occurring on the Property associated with the operation of the gate system prior to Plaintiff’s accident (UMF Nos. 41, 63, 85, 107); the gate was in a reasonably safe condition when possession was transferred to Sunbelt and Johnisee was under no obligation or duty to further inspect, maintain, and/or repair where the gate system was operating normally and had sufficient mechanisms to prevent tipping prior to R&S’s modifications (UMF Nos. 35, 36, 48, 51, 52, 57, 58, 70, 73, 74, 79, 80, 92, 95, 96, 101, 102, 114, 117, 118); modifications to the gate were done without Johnisee’s knowledge or consent and done solely to address changes in Alum Rock Avenue (UMF Nos. 42, 43, 46, 47, 64, 65, 68, 69, 86, 87, 90, 91, 112, 113); and R&S contracted with Sunbelt for modifications to the gate that resulted in its traveling an additional nine feet past where it previously opened and a portion of the fence being turned into a swing gate (UMF Nos. 44, 45, 48, 49, 53, 66, 67, 70, 71, 75, 88, 89, 92, 93, 97, 110, 111, 114, 115, 119).
Absent such a duty, R&S cannot establish liability against Johnisee for comparative fault, comparative indemnity, total equitable indemnity and contribution. Therefore, summary adjudication of these claims in Johnisee’s favor is warranted.

4. Declaratory Relief (Sixth Cause of Action)

Given the Court’s conclusions on the preceding causes of action, Johnisee is correct that summary adjudication of the final cause of action against him for declaratory relief is warranted, as this claim seeks a declaration that Johnisee is obligated to indemnify R&S, fully or partially, for any sum it may be required to pay as a result of any damages or judgments recovered by Plaintiff against it in the underlying complaint. (FACC, ¶ 33.) This claim is therefore duplicative of the preceding claims and fails for the same reason.

C. Conclusion

In accordance with the foregoing analysis, Johnisee’s motion for summary judgment is GRANTED.