Case Number: BC616314 Hearing Date: May 30, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

David MArtinez,

Plaintiff,

v.

The alden FAmily Limited PArtnership, et al.,

Defendants.

Case No.: BC616314

Hearing Date: May 30, 2018

[TENTATIVE] order RE:

Motion for summary judgment, or alternatively, summary adjudication by defendant The Alden Family LIMITED PARTNERSHIP dba U-Pick

Background

On or about April 8, 2016, Plaintiff David Martinez (“Plaintiff”) filed a Complaint for damages against Defendant the Alden Family Limited Partnership (“Defendant”) alleging causes of action for Gneral Negligence and Gross Negligence. On January 12, 2018, Plaintiff filed a First Amended Complaint alleging an additional cause of action for Strict Liability of an Ultrahazardous Activity.

Defendant moves for summary judgment or in the alternative summary adjudication as to the claims of the First Amended Complaint. Plaintiff opposes the motion, and Defendant has replied.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP §437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Facts

Plaintiff was at an automobile salvage yard owned by Defendant on April 8, 2014. (Fact 2.) In order to enter the salvage yard, Plaintiff signed a document entitled “License Agreement for Entry to Dismantle and/or Remove Automobile Parts” (“License Agreement”). (Fact 6.) The License Agreement granted signers permission to enter the property for the purpose of dismantling, removing, savaging, and extracting parts from the vehicles in the lot. (Fact 7.) The License Agreement was written in Spanish and English, and Plaintiff signed his name under the Spanish language version prior to entering the property. (Fact 9.)

Plaintiff alleges in the complaint that Defendant “failed to provide a safe and hazard free premises to their patrons and customer.” (Fact 3.) While Plaintiff was walking on the subject premises, a disabled vehicle rolled backwards into Plaintiff. (Fact 4.) Plaintiff became pinned between the rolling vehicle and another vehicle. (Pl. Fact 6.)

DISCUSSION

Defendant moves for summary judgment, or in the alternative summary adjudication, on the following grounds: (1) by signing the License Agreement, Plaintiff expressly agreed to assume any risk while on the property; (2) Plaintiff cannot show sufficient facts to support a claim of gross negligence; and (3) the claim for strict liability for engaging in an ultrahazardous activity does not apply on the facts of this case.

Express Assumption of Risk

The defense of express assumption of the risk arises when a plaintiff has signed a written contract or other writing waiving the risks that might arise from the defendant’s acts or omissions involving the plaintiff, thus relieving the defendant of the duty of care. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467.)

For an express release of liability to be enforceable against a plaintiff (1) the release agreement “must be clear, unambiguous and explicit in expressing the intent of the parties (citation omitted);” (2) the injury-producing act “must be reasonably related to the object or purpose for which the release is given (citation omitted); and (3) the release cannot contravene public policy.” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-5.) Lastly, the following requirements must be met:

“An express release is not enforceable if it is not easily readable.” (Conservatorship of Estate of Link (1984) 158 Cal.App.3d 138, 141 [205 Cal.Rptr. 513].) “Furthermore, the important operative language should be placed in a position which compels notice and must be distinguished from other sections of the document. A [layperson] should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.” (Id. at p. 142.) An exculpatory clause is unenforceable if not distinguished from other sections, if printed in the same typeface as the remainder of the document, and if not likely to attract attention because it is placed in the middle of a document. (Ibid.) In other words, a release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find. (Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227, 1232, citing Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1489.)

Here, Defendant states that the License Agreement’s third paragraph entitles it to summary judgment on the claims of negligence and gross negligence. Paragraph 3 states:

As a material inducement to obtain this license, I acknowledge that the removal, dismantling, scavenging and extracting parts from vehicles located on the premises can be dangerous, and that being on the premises is itself inherently dangerous, and that at all times I am required to exercise care, attention and precaution. I acknowledge and assume all risk of damage to property or injury to my person in, upon or about the premises including the parking lot that may be suffered while I am on the premises or parking lot.

(Def. Exh. C.) The Court finds that Defendant has failed to meet its burden to show that paragraph 3 of the License Agreement is enforceable as an exculpatory clause. First, this clause is listed in the middle of the document, and nothing about the clause differentiates it from the surrounding clauses. The typeface is the same as the surrounding paragraphs and does not draw the readers attention. Second, the clause is not labeled and does not include language at the beginning of the paragraph to indicate that the reader’s rights to sue are being waived. Third, the language indicating that the reader is waiving liability is buried in the middle of the paragraph, and as such, is not easily identifiable by the reader. Finally, the document is titled as a “License Agreement for Entry to Dismantle and/or Remove Automobile Parts.” Nothing in the title of the document indicates that it includes an exculpatory clause preventing liability from being imposed on Defendant. As such, Defendant has failed to meet its burden to show that the exculpatory clause is enforceable, and the burden does not shift to Plaintiff.

The only grounds for summary judgment or adjudication argued by Defendant on the negligence claim is the applicability of the License Agreement. Thus, Defendant has failed to meet its burden to show the absence of a triable fact as to the negligence cause of action, and summary adjudication on that claim is denied.

Gross Negligence

Even if a waiver of liability is enforceable against a cause of action for general negligence, a waiver cannot release a defendant for actions that are grossly negligent. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 (Santa Barbara). The court in Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 638 acknowledged the emphasis placed by the Santa Barbara court on “the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances.” (Santa Barbara, supra, at 767.) Ordinary negligence is an unintentional tort that “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Santa Barbara, supra, at 753-54.) By contrast, gross negligence is defined as “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (Id. at 754 (citation omitted).)

“Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal. App.4th 632, 640.) In Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, the court found that there was a genuine issue of material fact as to whether a fitness center’s failure to provide a minimum six-foot safety zone around a treadmill constituted an extreme departure from the ordinary standard of conduct where plaintiff had fallen backwards off the treadmill and hit her head on a leg exercise machine placed less than four feet behind the treadmill. (Id. at 557.) The court noted that the plaintiff had presented evidence indicating a possible industry standard on treadmill safety zones, namely, instructions in the treadmill manufacturer’s manual that required maintaining a minimum six-foot-deep clearance for user safety, similar language in the manufacturer’s assembly guide, and the plaintiff’s expert declaration emphasizing the importance of a safety zone behind the treadmills. The court held that “a jury could reasonably find that (1) it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, based on the owner’s manual, assembly guide, and Waldon’s declaration as an expert; (2) 24 Hour did not provide this minimum six-foot safety zone, as declared by Neuman; and (3) the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of conduct, as implied in Waldon’s declaration.” (Ibid.)

In contrast, in Grebing, the plaintiff sued 24 Hour Fitness after he injured himself at one of 24 Hour Fitness’ facilities while using a low row machine with a faulty handlebar clip. (Grebing, supra, at pp. 634-35.) The plaintiff presented evidence that the wrong type of clip somehow came to be on the low row machine, and that another member had complained about the clip to 24 Hour Fitness approximately 15 minutes prior to the plaintiff’s accident. (Id. at 638-39.) On the other hand, 24 Hour Fitness provided evidence that it took several measures to ensure that its exercise equipment and facility were well maintained, such as hiring facilities technicians, who conducted daily inspections of the facility and performed preventative maintenance. (Id. at 639.) Based on this evidence, the appellate court affirmed the lower court’s ruling granting 24 Hour Fitness’ motion for summary judgment. The Grebing court found that the plaintiff failed to provide evidence that 24 Hour Fitness acted with “want of even scant care . . . in order to establish gross negligence.” (Ibid.)

Here, Defendant argues that regardless of the enforceability of the waiver, Plaintiff cannot show a triable issue of material fact as to the gross negligence claim. To support this contention, Defendant offers evidence from Jorge Trujillo, the Operations Manager for Defendant, as to the safety precautions taken by Defendant. (Trujillo Decl., at ¶ 1.) Defendant trains its employees regularly on all procedures of operating the yard, including the placement of vehicles. (Fact 15.) Defendant’s employees supervise the premises anytime it is open to the public, including employees walking in the yard to monitor the area where the salvage vehicles are located. (Fact 16.) Defendant also uses industry standard practices to secure vehicles on the Premises, and Defendant’s employees conduct regular visual inspections of the vehicles on the premises to ensure that vehicles are not a danger to customers. (Fact 18, 19.)

The Court finds that these facts are sufficient to meet Defendant’s burden of proof. From these facts, a reasonable trier of fact would necessarily conclude that Defendant did not act with want of scant care or in such a manner that would be an extreme departure from the ordinary standard of conduct. As such, the burden shifts to Plaintiff. The Court notes that Plaintiff has not disputed Facts 15, 16, 18, and 19.

In opposition, Plaintiff offers few facts to show a triable issue of fact as to gross negligence. Plaintiff offers evidence that there is no documentation stating the types of inspections or which employees made the inspections. (Pl. Exh. B, Trujillo Depo., at pg. 46:20-47:8.) In addition, there are no records listing the amount of time a vehicle is kept in a particular area or how often it is examined to ensure there is no risk of the vehicle falling or rolling. (Id. at pg. 47:20-48:15.) Plaintiff also offers evidence that customers were not restricted in their ability to access the vehicles in that customers were allowed to climb onto bumpers, on the hood of the cars, and crawl underneath vehicles. (Id. at pg. 24:2-10.) Finally, Plaintiff offers evidence to show that on any given day several hundred people may visit the yard, but only three employees were present in the yard to monitor the customers and assist with removal. (Id. at pg. 42:2-19, 53:20-54:4.)

The Court finds that Plaintiff’s facts are insufficient to meet his burden to show a triable issue of material fact as to gross negligence. On the facts presented by Plaintiff, this case is more similar to Grebing than to Jimenez. Unlike Jimenez, there is no evidence in the instant case from which a fact finder may reasonably infer that Defendant has violated any industry standard. Plaintiff’s evidence related to the lack of documentation of any inspections tends to show possible negligence rather than gross negligence. Plaintiff does not dispute that Defendant secured and inspected the vehicles and regularly trained its employees in the proper techniques in placing the vehicles and monitoring customers removing parts from the vehicles. Thus, Plaintiff does not dispute that some measures were taken to protect customers and prevent harm from the vehicles. As the evidence showing that some precautions were taken is undisputed, Plaintiff, like the plaintiff in Grebing, has failed to meet his burden to show that Defendant acted with want of even scant care. The evidence presented may tend to show a lack of due care under ordinary negligence, but it does not tend to show that Defendant acted with an “extreme departure” from the ordinary standard of conduct.

Therefore, the motion for summary adjudication is granted as to the claim of gross negligence.

Ultrahazardous Activity

“The doctrine of ultrahazardous activity provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses.” (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85.) Whether an activity is “ultrahazardous” is a question of law to be determined by the court and is not to be submitted to the jury. (Luthringer v. Moore (1948) 31 Cal.2d 489, 496.) “An activity is ultra-hazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care and (b) is not a matter of common usage.” (Id. at 498.) The court also considered the following six factors in determining whether an activity is ultrahazardous:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

(Edwards v. Post Transportation Co. (1991) 228 Cal.App.3d 980, 985, citing Rest.2d Torts, § 520.)

Here, Defendant argues that the activity underlying this case does not rise to the level of being ultrahazardous. However, the Court finds that Defendant has failed to meet its burden on this motion for summary judgment or adjudication. While working in a salvage yard most likely is not an ultrahazardous activity, Defendant has failed to provide sufficient evidence for the Court to make that determination. To support its argument that extracting parts at a salvage yard is not an ultrahazardous activity, Defendant provides evidence that hundreds of people visit the premises each day, but there have been only two incidents—including Plaintiff’s injury—involving injury to a customer. (Fact 12, 14.) The limited number of injuries at this particular salvage yard may provide some evidence to show there are relatively low risks of harm, but this evidence does not speak to the danger of the entire activity itself.

Defendant does not provide any evidence as to the other factors that the Court must consider such as the likelihood and degree of harm possible, the ability to eliminate any risk with due care, the commonality of this type of work, appropriateness of the place where this activity occurs, or the extent to which the value to the community outweighs its dangerous attributes. As there is insufficient evidence before the Court on all but one of the factors, the Court cannot decide that the underlying activity in this case is not ultrahazardous as a matter of law. Thus, the burden does not shift to Plaintiff to create a triable issue of material fact.

The Court notes however that Plaintiff’s evidence regarding the hazardousness of the activity is also deficient. Plaintiff argues that the underlying activity is ultrahazardous because Defendant uses forklifts and cranes to move vehicles within the lot, which creates a high risk of injury or death. (Pl. Fact 24.) Plaintiff also contends that there are hazardous chemicals and waste on the property which is also inherently dangerous. (Pl. Fact 26.) These facts are not relevant to the analysis at hand based on the facts of this incident.

For a defendant to be strictly liable for an ultrahazardous activity, the type of harm caused must be the same type of harm that lead the activity to be deemed abnormally dangerous. (Goodwin v. Reilley (1985) 176 Cal.App.3d 86, 91-92.) “Because liability for an ultrahazardous activity is imposed irrespective of the defendant’s reasonable care and regardless of fault, an individual who engages in such activity is subject to a narrower, rather than a greater, liability than otherwise obtains.” (Ibid.) Thus, “strict liability is limited to the kind of harm, . . . which makes the activity abnormally dangerous.” (Id. at 91.) Here, Plaintiff was injured by a car rolling backwards and pinning him to another vehicle. He was not injured as a result of chemical burns or due to the use of a fork lift. Thus, Plaintiff’s showing regarding these other dangerous activities have no bearing on whether the activities that Plaintiff was engaging in were hazardous to the point where society imposes strict liability for any injuries that result.

Based on the foregoing, the Court finds that the motion for summary adjudication as to the claim of ultrahazardous activity is denied.

Conclusion and Order

Defendant’s request for summary adjudication is granted in part and denied in part. Defendant’s motion for summary adjudication is granted with respect to the issue of Gross Negligence and denied with respect to the claims of General Negligence and Ultrahazardous Activity. Summary judgment is denied as there is a triable issue of fact with respect to the claims of General negligence and Ultrahazardous Activity.

All parties should note that the hearing on this motion and all future hearings in this case will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: May 30, 2018 ___________________________

Elaine Lu

Judge of the Superior Court