Case Name: Tibbetts v. Devcon Construction, Inc., et al.
Case No.: 17CV318677

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

According to the allegations of the complaint, on March 6, 2017, plaintiff Mike Tibbetts (“Plaintiff”) was working at a Google office site in Sunnyvale as a plasterer for Anning-Johnson Co. (See complaint, ¶ 10.) Devcon Construction Inc. (“Devcon”) was the entity providing general contracting services to perform fireproof patching. (See complaint, ¶ 11.) Defendants negligently left cords and plastic in the hallway, causing Plaintiff to fall and sustain injury to his wrist. (See complaint, ¶ 25.) On November 6, 2017, Plaintiff filed a complaint against Devcon asserting a single cause of action for negligence. On May 1, 2018, Plaintiff added Redwood Electric Group (“REG”) as defendant Doe 1. Devcon moved for summary judgment, asserting that REG was responsible, and Plaintiff did not oppose the motion. On April 5, 2019, the Court granted Devcon’s motion and stated that it was entitled to judgment. REG now moves for summary judgment.

Defendant’s burden on summary judgment

“A defendant seeking summary judgment 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; emphasis added.)

“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 et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“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.) 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. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Defendant REG’s arguments

Defendant argues that summary judgment is appropriate because: Plaintiff cannot demonstrate that REG owes Plaintiff a common law duty of care; Plaintiff presents no evidence that REG violated a Labor Code or OSHA such that it could be liable for negligence per se; Plaintiff cannot establish that REG caused his injuries because it does not own the “baloney” cord in question and Plaintiff does not present evidence that REG negligently left boxes in the hallway; Plaintiff cannot demonstrate causation or damages because Plaintiff’s own negligence caused his injuries; and, there is substantial evidence to demonstrate that Plaintiff’s injuries are unconnected to any performance of his job duties.

Defendant REG fails to meet its initial burden with respect to its arguments as to duty and negligence per se

As to the argument regarding duty, REG argues that “absent substantial evidence by the plaintiff, REG does not owe a duty of care to the plaintiff… [as] Plaintiff has not presented evidence that REG is responsible for the hallway or room in which plaintiff alleges he tripped… [and] does not allege that REG was performing construction work in the hallway; nor does he allege that REG stores or regularly stores its materials in said hallway.” (REG’s memorandum of points and authorities in support of motion for summary judgment (“REG’s memo”), pp.3:15-28, 4:1-4.) Here, REG misunderstands that it has the initial burden to present affirmative evidence to support its argument, or present evidence that Plaintiff does not possess and cannot reasonably obtain such evidence. None of its asserted undisputed material facts identified in its separate statement in support of the motion support this argument, and REG does not identify or cite to any of those facts. REG thus fails to meet its initial burden to show that Plaintiff cannot demonstrate that REG owes Plaintiff a common law duty of care.

Similarly, REG fails to meet its initial burden with regards to its argument regarding negligence per se because it misunderstands its initial burden, and does not otherwise cite to any evidence to support its argument other than UMF 6, which cites to Plaintiff’s deposition, in which Plaintiff states that he does not remember how many boxes, what was in the boxes, and whether he remembers if there was anything other than boxes, plastic, two temporary power boxes and baloney cords in the hallway on the date of the accident. This evidence does not address how Plaintiff lacks evidence to demonstrate that REG violated a Labor Code or OSHA such that REG could be liable for negligence per se.

REG’s arguments regarding causation

Lastly, REG argues that Plaintiff cannot establish that REG caused Plaintiff’s injuries because: REG did not own the subject baloney cord; Plaintiff speculates that REG owns the cord without any substantial evidence; Plaintiff presents no evidence that REG negligently left boxes in the hallway; Plaintiff caused his own injuries with his own negligence; and, Plaintiff’s injuries weren’t connected to the performance of job duties.

REG’s argument that there is no evidence that REG stored boxes in the hallway

REG presents the declaration of its foreman, Craig Santos, who states that during its work at the project, REG employed material handlers to break down any materials for installation outside the building, and after breaking down boxes and plastics, the material handlers brought material into the building for electricians who installed the materials. (Santos decl. in support of motion for summary judgment (“Santos decl.”), ¶ 5.) Here, this evidence does not demonstrate that REG did not negligently leave boxes in the hallway. REG’s other argument—that “Plaintiff presents no evidence in support of any allegation that REG stored its boxes or material in the hallway”—again misunderstands its initial burden, and does not otherwise demonstrate that Plaintiff lacks evidence that REG negligently left boxes in the hallway. Accordingly, REG fails to meet its initial burden to demonstrate that Plaintiff lacks evidence that REG negligently left boxes in the hallway.

REG’s argument that Plaintiff caused his own injuries such that REG was not a cause of Plaintiff’s injuries

REG also provides Plaintiff’s deposition testimony in which he states that his employer expected him to report any unsafe condition he saw to his foreman, to be on the lookout for hazards and to either fix it himself or report it to his supervisor. (See Li decl., exh. 1 (“Pl.’s depo”), p.47:7-16.) Plaintiff also testified that he used 40 feet of extension cord on the ground and that it was a typical condition and something he would have to watch out for. (Id. at pp.82:17-25, 83:1-11.) Although this evidence might demonstrate contributory negligence or issues of veracity for Plaintiff, it does not demonstrate that Plaintiff caused his own injuries such that REG was not a cause of injury. Accordingly, REG fails to meet its initial burden as to this argument.

REG’s argument that Plaintiff was not injured at the worksite on March 7, 2017; rather, he was injured elsewhere on a different date

REG also argues that Plaintiff did not injure himself at the worksite, but rather elsewhere. Although he injured himself on March 7, it is undisputed that Plaintiff worked full shifts for the week of March 6-10, 2017. (See Pl.’s response to REG’s separate statement of undisputed material facts (“UMF”), no. 10.) It is also undisputed that Plaintiff had to use ladders, plastic tape, buckets, drills, cement mixers, shovels, brooms, scaffolding and scissor lifts, and moved a gang box from inside the building to outside during the week of March 6, 2017. (See UMFs 19-20.) REG also presents evidence that Plaintiff did not show up to work on March 13 and 14, 2017, and when Plaintiff saw Madrid on the 15th, Plaintiff told Madrid that he broke up with his girlfriend and he didn’t have a phone or a car to get a hold of him. (See UMFs 11, 14.) Although this evidence may demonstrate issues of veracity for Plaintiff, it is possible that Plaintiff was still able to perform certain tasks while injured, as Plaintiff has asserted. REG’s evidence does not demonstrate that Plaintiff did not injure himself on March 7 at the worksite; accordingly, REG fails to meet its initial burden as to this argument. Even if REG had met its initial burden, Plaintiff demonstrates a triable issue as to his injury being onsite on March 7, 2017.

REG’s argument that it did not own the subject baloney/boloney/bologna cord

REG provides the declaration of its foreman, Craig Santos, who states that “REG suspended the cords connecting each spider box to wall and ceilings for safety and to avoid any damage to the cords.” (Santos decl., ¶ 4.) He also states that REG did not schedule any work in conflict with other subcontractors such as Plaintiff’s employer. (See Santos decl., ¶ 6.) REG also presents the deposition testimony of Santos who states that the cords for the box are suspended “so that it’s out of traffic because… scissor lifts and carts can’t maneuver around those cords… [s]o it’s suspended.” (Li decl. in support of motion for summary judgment, exh. 5 (“Santos depo”), p.57:1-7.) REG meets its initial burden to demonstrate that it did not own the subject baloney cord.

In opposition, Plaintiff presents the declaration of Scott Glenz, Devcon’s superintendent for the subject project. He states that Devcon’s business records reviewed, approved and kept by him states that REG, the electrical subcontractor, was working at the subject building on March 7, 2017. (Glenz decl., ¶ 4.) Glenz also stated that REG provided temporary power boxes for use by its employees and employees of the other trades working on the project, and that the electrical cords attached to temporary power boxes are known as “boloney cords” because they are approximately 1 ¼ inches in diameter, thicker than typical 220-volt extension power cords. (See Glenz decl. ¶ 6.) On March 7, 2017, REG was the only subcontractor permitted to connect temporary power boxes to power in the electrical rooms and plugged its temporary power boxes into power sources in two electrical rooms on opposite sides of the building. (See Glenz decl., ¶ 7.) Glenz finally states that REG “boloney cords” were in walkways on the first floor of the subject building, including in the area of the building where the subject incident is alleged to have occurred. (See Glenz decl., ¶ 8.) Glenz states that REG was responsible for maintaining its boloney cords for temporary power boxes and was responsible for maintaining the boxes and their cords in a safe condition. (See Glenz decl., ¶ 9.) REG’s objections 1-5 are OVERRULED. Plaintiff also presents the declaration of Anning Johnson’s foreman, Lorenzo Madrid, who testifies that he, in fact, saw baloney cords on the first floor and that they were not Anning Johnson’s. (See Osborne decl., exh. 5 (“Madrid depo”), p.25:6-16.) Plaintiff also testified that he saw baloney cords running along the ground to the temporary power box, contradicting REG’s foreman’s testimony. (See Pl. depo, p.41:6-9.) Plaintiff also testified that when baloney cords were connected to temporary power boxes, they were always connected by REG employees. (Pl. depo, pp.42:10-25, 43:1-1.) Plaintiff also testified that he tripped over a REG baloney cord. (Pl. depo, pp.113:25-114:1-2.) This evidence demonstrates the existence of a triable issue as to whether REG owned the subject baloney cords that allegedly injured Plaintiff. Accordingly, the motion cannot be granted on this basis.

REG’s motion for summary judgment is DENIED.

The Court did not rely on declaration of Mr. Fulghum in its Order. The Court declines to rule on objections 6-25 to the Fulghum declaration.

The Court shall prepare the Order.