2011-00115694-CU-PA

Christopher Sisto vs. James Timothy Banks

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

Filed By:  Cholakian, Kevin K.

Defendant/Cross-complainant and Cross-defendant Les Schwab Tire Centers of
California’s Motion for Summary Judgment or in the alternative Summary Adjudication
on the 1st amended Complaint, and on the 4th cause of action of the Amended Cross-
complaint of James Timothy Banks (“Banks”) is denied.

Defendant Hauth’s Request for Judicial Notice is denied for the reasons stated in Les
Schwab’s opposition to the request.

Sisto’s Request for Judicial Notice is denied.  (Les Schwab website and
advertisement)

Defendant Hauth’s Evidentiary Objections:
Declaration of Martin:  Overruled as to Nos. 3. Sustained as to Nos. 1, 2, and 4.
Declaration of Grigsby: Overruled as to Nos. 5 and 6.
Declaration Collazo: Overruled as to No. 7,    Sustained as to No. 8, 9 and 10.
Declaration of Brambila: Sustained as to Nos. 11 and 12.

The motion is opposed by plaintiff Christopher Sisto, dba CGC Construction and
Patrick Hauth in this lead case, and Plaintiff Liberty Mutual Insurance Company
(Hauth’s insurer) in the consolidated subrogation action.   The motion is not opposed
by Banks, in propria persona, but the parties opposing the motion oppose it on his
behalf. (See, e.g. CCP 437c (p)(2)).

Plaintiff Sisto alleges Les Schwab is liable for Motor Vehicle Negligence and General
Negligence. Cross-complainant Banks alleges Les Schwab is liable for Negligence
(Products Liability).

On September 8, 2011, Banks’ vehicle collided with defendant Hauth after Banks’
steering failed.  Thereafter,  Hauth and Banks vehicle collided.  Hauth, who was
traveling east-bound on Greenback Lane, struck plaintiff’s west-bound vehicle.  Banks
had recently had his truck serviced at Les Schwab.  Sisto contends that Les Schwab
negligently serviced the vehicle by failing to discover the broken steering assembly,
resulting in the accident. The CHP officer at the scene opened the hood and saw that
the two shafts that were supposed to come together were disconnected.  (Depo of
Officer Ries, page 17)  Banks had been in a prior accident on September 6, 2011,
when his truck went over a curb and hit a guy wire on a pole. (Banks Deposition page
12).  Banks took the truck to Les Schwab on September 6 and told them about the
accident, stating the vehicle was pulling to the right. Banks requested an alignment
and suspension check to ensure that the car was safe.  Sisto contends that Les
Schwab should have lifted the hood and inspected the steering assembly as part of its
suspension check, contending that the steering assembly is connected to the
suspension.  Sisto contends that the vehicle should not have been released in an
unsafe condition.  Banks picked up the car on September 8 and the accident occurred
later that day.
Les Schwab contends that Sisto cannot prove that Les Schwab’s conduct caused
Sisto’s damages.  Les Schwab contends it did not cause the steering assembly to fail,
because it had no duty to check under the hood to check on the steering assemblage.
As to Bank’s cross-complaint, Les Schwab contends that Banks cannot prove that Les
Schwab produced, manufactured, or sold the allegedly defective product.  Banks’ 4th
cause of action alleges that Les Schwab’s faulty work and inspection of paid service
and repairs to GMC 1500 truck…led to a loss of mechanical functions of said vehicle.
Thus, although the claim is denominated  “Products Liability,” it is actually a claim for
negligence arising out of a faulty inspection.

In support of the motions for summary judgment, Les Schwab has submitted
declarations of three employees at the Les Schwab location where Banks took his
vehicle. Scott Martin  is the Tire Center Manager at the location and is responsible for
supervising the technician’s work.  He noted that Bank’s truck had major front end
damage and told Chad Grigsby, Assistant Manager,  to tell Mr. Banks it would be
difficult to do anything other than a “temporary alignment” that would allow him to drive
the vehicle a short distance to a collision center to have the body and structural
damage repaired.   Martin assigned Grigsby to perform the suspension check and
align the truck.  Martin states it was not necessary to check under the hood in checking
the suspension.  Martin states that Les Schwab provides only tire repair and
replacement, alignment, and suspension services.  He further states that Les Schwab
did not manufacture, assemble or supply any steering assembly. (Declaration of
Martin)    Chad Grigsby is the Assistant Manager.  Banks told Grigsby his vehicle was
pulling to the right and he needed to have the suspension and alignment checked.
Grigsby told Banks that he needed to take the truck to a collision center for structural
repair since Les Schwab could not perform the work.  Grigsby stated that Banks
insisted on a temporary alignment so that he could drive the car to a collision repair
location.  (Declaration of Grigsby).  Nelson Collazo states that he was instructed on
September 8 (sic) to check the suspension and perform an alignment on Banks’ truck.
He states that he understood based on the work order that the truck was pulling to the
right and that Banks wanted the suspension checked and an alignment done. Collazo
states he told Martin that it would be difficult to do anything more than a temporary
alignment that would allow Mr. Banks to drive his vehicle a short distance to a collision
center. Collazo states “in checking the suspension and performing the alignment, it
was not necessary for me to check under the hood of Mr. Bank’s truck, and I did not do
so.” (Declaration of Collazo.) Both Martin and Collazo state that they “understood” that
Banks did not mention a steering problem.  However, their “understanding” is based on
statements made by other persons.  Mr Grigsby is purportedly the person to whom
Banks spoke, but Grisby does not state in his declaration that Banks did not mention a
steering problem. (See ruling on evidentiary objections.) The delivery receipt and
invoice issued to Banks on September 8, 2011 state in part “We rec. the vehicle be
taken to a collision repair shop.”  (See Exhibit A and B to Declaration of Rob Brambila.)

In opposition to the motion, Sisto and Liberty Mutual submit the Declaration of Alex
Wong, a mechanical engineer.  He states that based on his review of the deposition
transcripts and discovery responses, he is of the opinion that Les Schwab was
negligent in failing to check the steering column, having seen the front end body
damage to the vehicle.  He opines that the steering column and its linkages are
considered part of the suspension system.  Alex Wong states that Les Schwab had
noted that “the knockout cam cannot make enough movements of the geometry to
make it safe.”  He opines that the technician should have continued to make diagnostic
measurements to determine what was bent in the suspension and make repair
recommendations and provide estimates for the repair.  Les Schwab, in the expert’s
opinion, should have insisted the vehicle be towed rather than allow Banks to drive it.
(Declaration of Alex Wong.)

Although James Banks, in propria persona, has not opposed the motion, Liberty
Mutual, and Sisto have pointed to deposition testimony from Banks in which he stated
that he asked Les Schwab to make sure the vehicle was safe and that he was told that
it was “safe.”   (Depo Banks p.15, 18)

Defendant Hauth’s opposition relies only on Evidence Code section 646, contending
that the doctrine of res ipsa loquitor provides a presumption of negligence arising from
the failure of the steering system.  However, the Court is not persuaded that this
doctrine applies since the steering column was not in the exclusive control of Les
Schwab at the time of the accident.  Moreover, it is undisputed that the vehicle
sustained major front end damage two days before the accident that gave rise to this
action.

In Reply, Les Schwab objects to the expert Wong’s declaration.  The objections go to
weight rather than admissibility.  Defendant also contends that plaintiff must present
evidence that the bolt was broken when Les Schwab had the truck.  However,
defendant did not present any evidence in its motion that the bolt was not broken when
it had the truck.  Rather, it argued that it was not required to open the hood and check
the steerage assembly in doing a suspension check after Banks told them that the car
was pulling to the right.

Based on the admissible evidence offered in opposition to the motion, a trier of fact
could infer that Les Schwab was negligent in its maintenance and service of Banks
vehicle.  (UMF 29) A trier of fact could infer from the evidence that Les Schwab was a
legal cause of the accident because it negligently failed to check the steering assembly
under the hood, and as a result the steering failed later that day.  Les Schwab’s motion
for summary judgment/summary adjudication of the 1st Amended Complaint and the
4th cause of action in the Amended Cross-complaint of Banks is denied.

Summary judgment is properly granted only if the moving party’s evidence establishes
that there is no issue of material fact to be tried. (Lipson v. Superior Court (1982) 31
Cal.3d 362, 374; Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825,830). A judge
may not grant summary judgment when any material factual issue is disputed. A
defendant moving for summary judgment bears the burden of persuasion that one or
more elements of the plaintiffs 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)).  In determining whether the papers show
that there is no triable issue as to any material fact, the Court must consider all the
evidence set forth in the papers, except that to which objections have been made and
sustained. (CCP 437c(c)). Under CCP §437c(c), the Court is required to consider all
inferences reasonably deducible from the evidence. Stated otherwise, for a summary
judgment motion to be successful, the evidence must leave no room for conflicting
inferences as to material facts. (Calvillo-Silva v. Home Grocery (1998) 19 Cal. 4th 714,
735; Anderson v. Metalclad Insulation Corp.  (1999) 72 Cal. App. 4th 284, 297. Doubts
as to the propriety of summary judgment should be resolved against granting the
motion. (Huynh v. Ingersoll-Rand , supra, at p. 830.)

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c