Filed 2/19/20 Castellanos v. Sal’s Auto Services, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ESPERANZA CASTELLANOS et al.,

Plaintiffs and Appellants,

v.

SAL’S AUTO SERVICES, INC.,

Defendant and Respondent.

G056767

(Super. Ct. No. 30-2015-00800353)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed in part, reversed in part, and remanded with directions.

Liebeck Law, Kevin G. Liebeck and Brooke L. Bove for Plaintiffs and Appellants.

Schlichter & Shonack, Kurt A. Schlichter and Steven C. Shonack for Defendant and Respondent.

* * *

Plaintiffs and appellants Esperanza Castellanos, Humberto Castellanos, Ernie Castellanos, Adriana Castellanos, Mario Castellanos, and Marcella Castellanos-Gomez (collectively, plaintiffs) appeal from a summary judgment in favor of defendant and respondent Sal’s Auto Services, Inc. (defendant) on plaintiffs’ complaint for negligence and products liability. The action arose out of the death of Ernest Castellanos (decedent), the husband and father of plaintiffs, in an automobile accident caused by improper installation of a steering column.

Plaintiffs contend the court erred when it found defendant owed them no duty and there was no triable issue of fact as to causation. They argue the court improperly weighed evidence and made factual findings, and relied on issues not raised in the motion. They also maintain there are triable issues of material fact requiring the motion be denied.

Defendant did not meet its initial burden to provide sufficient evidence to negate all the elements of negligence, we reverse as to that cause of action. Because plaintiffs did not argue summary judgment was improper as to the products liability cause of action, we affirm summary adjudication of that claim

FACTS AND PROCEDURAL HISTORY

In 1963 decedent purchased a car (Car) when it was new. After decedent used it for several years, he gave it to his brother in Mexico. The Car was subsequently returned to decedent, who then took it to Robert Monzon and Monzon Garage (collectively Monzon) to be restored. Several years after the restoration was completed, when decedent asked Monzon to perform a wheel alignment, Monzon took the car to defendant for the service. Defendant completed an invoice showing it performed a wheel alignment on the Car for which it was paid $50. The alignment was performed by Robert Moctezuma, an independent contractor who worked out of defendant’s shop.

About two weeks thereafter, the steering system on the Car failed because it was improperly installed, causing the Car to crash into a tree. Decedent, who was driving the Car, died from his injuries.

In August 2015 plaintiffs filed a first amended complaint (FAC) against Monzon. The form FAC included a cause of action for negligence and one for products liability. The negligence cause of action alleged Monzon was negligent in repairing mechanical parts of the Car, causing it to be unfit for driving. The remaining allegations resulted from plaintiffs checking boxes on the forms. The products liability cause of action pleaded strict liability, negligence, and breach of implied warranty against the Doe defendants, alleging they “manufactured or assembled the product,” “sold the product to the public,” were negligent, and “breached an implied warranty.” In June 2017 the FAC was amended to add defendant as a Doe. There were no additional allegations made against defendant.

Defendant filed a motion for summary judgment or motion for summary adjudication (motion for summary judgment) based on four grounds: 1) the FAC did not contain any facts or theory of liability as to defendant; 2) defendant had no duty to inspect or discover or repair the alleged defect in the steering column and did not breach any duty it owed; 3) defendant did not cause either the defect or failure of the steering column; and 4) defendant did not sell, manufacture, assemble, or install any part of the Car and thus was not liable on the products liability causes of action.

In support of the motion defendant filed the declaration of Salvador Diaz, owner of defendant. In his declaration, Diaz stated defendant is a repair shop that performs wheel alignments. Before it performs a wheel alignment, defendant test drives a car and uses equipment to test and align the wheels. Defendant does not inspect for any defects. However, if any problems are noted during the test drive or a visual inspection, defendant will not perform an alignment. In performing a wheel alignment, the angles of wheels are adjusted to meet manufacturer’s specifications. This does not involve inspecting, adjusting, or servicing the steering column. In performing an alignment defendant does not disassemble, reassemble or install the steering column or any other part of a car.

Diaz further declared Monzon brought the Car to defendant for a “routine wheel alignment.” Defendant did not find any issues with the Car during the test drive or visual inspection and performed the alignment. Defendant “did not design, manufacture, disassemble, reassemble, or install the steering wheel column or any other component of the [Car].” If it had, the invoice would have reflected that work. Defendant issued an invoice showing Monzon as the customer and the work done as “wheel alignment,” for “50 cash.” A copy of the invoice was attached to the Diaz declaration.

Plaintiffs’ opposition included a declaration from their expert, Steve Dose. Dose stated that, because defendant performed an alignment, it had a duty to inspect the steering system, document all unsafe conditions, inform the customer, and “insist” they be repaired before the Car was driven. He further stated that had defendant done so and fixed the condition, the fix “more likely than not” would have prevented the failure of the steering system. He also stated defendant’s “failure to comply with [that] standard of care was a substantial factor” in causing the crash.

The court granted the motion. It found there was no negligence claim against defendant because that cause of action alleged only that Monzon was negligent in repairing the Car. As to the products liability cause of action, there was no evidence defendant “sold or inserted any products” relating to the Car. Plaintiffs argued the complaint contained a third cause of action for wrongful death based on checking that box in the caption of the FAC form complaint. While noting there is no cause of action for wrongful death, the court decided to “treat the passing reference” to wrongful death as a negligence claim against defendant.

The court found plaintiffs failed to show a repair shop contracted to perform a wheel alignment like defendant had a duty to look for latent defects and did not show how failing to go beyond the wheel alignment and search for a defect was a substantial factor in causing the failure of the steering mechanism.

DISCUSSION

1. Principles of Summary Judgment and Standard of Review

Code of Civil Procedure section 437c, subdivision (c), declares “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.” A defendant may bring a motion on the ground there is a complete defense to the action or the plaintiff cannot prove one of the required elements of the case. (Code Civ. Proc., § 437c, subds. (o)(2), (p).) Only if the defendant meets that burden, does the burden shift to the plaintiff to produce evidence there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (o)(2).) If the moving defendant fails to meet the burden the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

We review a summary judgment de novo. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) “Because summary judgment is a drastic measure that deprives the losing party of trial on the merits” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304), “[a]ny doubts about the propriety of granting a summary judgment motion must be resolved in favor of the party opposing the motion” (ibid.).

2. Negligence

The elements of a cause of action for negligence are duty, breach of that duty, and the breach proximately caused the resulting injury. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.) Here, defendant had a duty to perform the wheel alignment in accord with proper standards.

Defendant contends it did not breach its duty to properly perform a wheel alignment. But the evidence defendant offered to support that contention was not sufficient. It is undisputed Diaz, defendant’s owner, did not personally perform the alignment work. Rather, Moctezuma did. Diaz testified he never dealt with Monzon, did not know how or why the Car was brought to defendant, and did not see or test drive the Car.

Diaz’s knowledge about the wheel alignment on the Car is based on two things: 1) the invoice, which stated a wheel alignment was performed, and 2) what is normally done on a simple wheel alignment at defendant’s shop. But Diaz has no knowledge of Moctezuma’s actions or inactions relative to the wheel alignment and did not testify to those facts. What is normally done on a wheel alignment as reflected on the invoice does not establish how Moctezuma actually performed the alignment. Nor does the invoice state Moctezuma performed the alignment in accordance with defendant’s normal procedures. Consequently, there is no evidence Moctezuma did or did not touch or manipulate the steering shaft or any other portion of the steering column. Noticeably absent is a declaration from Moctezuma describing what he did or did not do in performing the alignment.

A defendant moving for summary judgment “must present evidence, which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) Our required strict construction of the evidence does not demonstrate defendant negated the element of breach of duty. Thus there is a triable issue of material fact which requires a trial on the merits. This conclusion is consistent with and furthers the strong policy in California in favor of trial on the merits. (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1131-1132.)

DISPOSITION

The summary judgment is reversed. The summary adjudication of the negligence cause of action is reversed. The summary adjudication on the products liability cause of action is affirmed. The trial court is instructed to enter a new order denying summary judgment, granting summary adjudication of the products liability cause of action, and denying summary adjudication of the negligence cause of action. Plaintiffs are entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.