Case Number: PC053837 Hearing Date: April 11, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ERNEST JIMENEZ,
Plaintiff(s),
vs.

AMTECH ELEVATOR COMPANY, ET AL.,
Defendant(s).

Case No.: PC053837

[TENTATIVE] ORDER DENYING SUMMARY JUDGMENT; GRANTING SUMMARY ADJUDICATION OF PREMISES LIABILITY CAUSE OF ACTION; DENYING SUMMARY ADJUDCATION OF NEGLIGENCE CAUSE OF ACTION

Dept. 92
1:30 p.m. — #14
April 11, 2014

Defendant, Amtech Elevator Company’s Motion for Summary Judgment is Denied. The Motion for Summary Adjudication of the Premises Liability Cause of Action is Granted. The Motion for Summary Adjudication of the Negligence Cause of Action is Denied.

1. Background Facts
Plaintiff, Ernest Jimenez filed this action against Defendants, Amtech Elevator Company (“Amtech”) and Blackhawk Office Building (“Blackhawk”) for damages arising out of an incident involving Defendants’ allegedly faulty elevator. Plaintiff alleges he injured his neck in connection with the incident.

2. Motion for Summary Judgment
Defendant, Amtech moves for summary judgment on the complaint, contending the premises liability cause of action fails as a matter of law because Amtech did not own, possess, or control the premises at the time of the accident, and the negligence cause of action fails because there is no evidence of negligent conduct by Amtech that caused or contributed to Plaintiff’s injuries.

a. Premises Liability
Amtech moves for summary adjudication of the cause of action for premises liability, contending it did not own, control, or possess the premises at the time of the subject accident. Amtech contends it is merely a servicing company for the subject elevator, and therefore cannot be held liable for premises liability.

A cause of action for premises liability includes the following essential elements: (1) the defendant owned, leased, occupied or controlled the subject premises; (2) the defendant was negligent in the use or maintenance of such premises; (3) that plaintiff was harmed; and (4) that defendant’s negligence was a substantial factor in causing plaintiff’s harm. (CACI No. 1000.) Civil Code section 1714(a) provides in part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” Since Rowland v. Christian (1968) 69 Cal.2d 108, the liability of landowners for injuries to people on their property has been governed by general negligence principles. (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

Amtech supports its motion with evidence that it does not own, possess, or control the subject premises or the elevators on the site. See fact 5 of the separate statement, supported by the Declaration of Zervic. The Court finds Amtech’s evidence sufficient to meet the moving burden to show that Amtech did not own, control, or possess the elevator at the time of the subject incident.

Notably, Plaintiff does not oppose the motion. Co-Defendant, Blackhawk, however, did file opposition to the motion. Blackhawk contends Amtech DID have control over the subject elevator at the time of the incident, because Amtech was the service provider of the subject elevator. Blackhawk cites to Koepnick v. Kashiwa Fudosan America, Inc. (2009) 173 Cal.App.4th 32, 40 to support this position. Koepnick does not aid Blackhawk’s position. The issue in Koepnick was whether the landowner could be held liable under a premises liability theory when the elevator repair company it hired failed to property repair the elevator. The court held that the duty to maintain the elevator is a non-delegable duty on the part of the owner of the building, and therefore the owner remains liable under a premises liability theory regardless of whether the independent contractor is at fault for the incident. The court did not consider the reverse – whether the independent contractor is liable for premises liability regardless of whether it “controlled” the elevator at the time of the incident.

In the opposing separate statement, Blackhawk relies on Alcaraz v. Vece (1997) 14 Cal.4th 1149 to support its position that Amtech controlled the subject elevator at the time of the incident. In Alcaraz, the plaintiff injured himself on a water meter box owned by the city. The plaintiff sued his landlords, who moved for summary judgment. The trial court granted summary judgment, but the Court of Appeals reversed. The Supreme Court affirmed the Court of Appeals. The Court held that evidence that the landlords maintained the lawn where the meter box was located and constructed a fence enclosing the area around the meter box was sufficient to raise triable issues of material fact concerning control over the subject area.

Blackhawk presents no evidence of such ongoing control in this case. It presents no evidence that Amtech exercised ongoing control over the elevators or the subject area around the elevators. The motion for summary adjudication of the premises liability cause of action is therefore granted.

b. Negligence
Amtech moves for summary adjudication of the negligence cause of action, contending it did not breach any duty to Plaintiff and did not cause Plaintiff’s injuries or damages. Specifically, Amtech contends it fully performed its obligations under the maintenance contract and had no constructive or actual knowledge of any defect in the elevator prior to the incident.

The elements of negligence are a duty the defendant owes to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the plaintiff’s injury, and actual injury. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 537, p. 624.)

Amtech provides evidence that it had a service contract providing for routine maintenance of the subject elevator at the time of the incident. Fact 6. Blackhawk attempts to dispute this fact, but merely argues that the contract required Amtech to provide maintenance for four years prior to the incident, and also obligated Amtech to inspect for problems with the elevator. The fact is not materially disputed.

The more difficult facts are facts 7 and 8. Amtech purports to establish that there were no prior complaints or instances of the elevator misleveling (fact 7), and also that the maintenance records for the subject elevator do not reflect any warning signs or indications that the elevator was in danger of misleveling (fact 8). Amtech sufficiently supports both of these facts with the Declarations of Zervic and Bigler, and met its moving burden to establish that the facts are not disputed.

Blackhawk attempts to raise triable issues of material fact with respect to fact 7 by citing the Declaration of Turner, the deposition of Wells, the deposition of Wade, the deposition of Hajji, and the deposition of French. The Court has reviewed each of these materials in drafting this ruling. Turner declares that he is an engineer with special expertise in the field of elevator and escalator mechanics, safety, and design. At ¶7, which is cited to dispute fact 7, Turner merely indicates that he notes the deposition testimony of Wells, Wade, Hajji, and French, which establish that there had been prior problems with the elevator. The Court has reviewed the deposition testimony of Wells, Wade, Hajji, and French. Indeed, each of them testified that they had experienced prior problems with the elevator misleveling.

However, as Amtech correctly notes in reply, none of these persons testified that they told anyone about the misleveling. There is, therefore, no evidence before the Court that Amtech knew the elevator had previously misleveled.

Fact 8 purports to establish that there were no indications that the elevator was in danger of misleveling prior to the incident. In support of the fact, Zervic declares that he is a branch manager for Amtech, and is providing maintenance records for the elevator, which do not reflect any problems with misleveling, as Exhibit A to his declaration. Toward the back of Exhibit A is the “Work History for Blackhawk Office Bldg.” Additionally, Amtech supports the fact with the Declaration of Bigler, who is an expert in elevator maintenance. He declares that the maintenance records do not reveal any reason to believe that the elevator was going to fail, and routine maintenance would have revealed any malfunction if one had been present.

As Turner correctly notes in his declaration in opposition to the motion, the records contain almost no information at all. It is difficult to determine what testing was conducted or what maintenance was performed. Turner opines that, due to the series of prior incidents involving misleveling, a component of the elevator required service by way of testing, examination, or replacement. He declares that there is no indication in the records that Amtech paid adequate attention to the need for testing, examination and replacement of components, and the records are insufficient to support a finding that this was done.

Amtech argues in reply that Turner’s declaration is vague as to what maintenance records should have been provided, what maintenance should have been done, and what part likely failed.

Reflecting the “cautious” judicial attitude about granting summary judgment, the declarations and evidence offered in opposition to the motion must be liberally construed, while the moving party’s evidence must be construed strictly, in determining the existence of a “triable issue” of fact. D’Amico v. Board of Medical Examiners (1974) 11 C3d 1, 21; Binder v. Aetna Life Ins. Co. (1999) 75 CA4th 832, 839; Johnson v. American Standard, Inc. (2008) 43 C4th 56, 64.

The Court finds the declarations filed by both sides are weak in terms of what maintenance was performed, what maintenance was required, and what defect was present in the elevator that caused the misleveling. In light of the standard set forth above, the Court must strictly construe Amtech’s declarations and liberally construe Blackhawk’s declarations. The Court finds the Declaration of Turner is sufficient to raise a triable issue of material fact concerning fact 8, whether or not Amtech conducted adequate maintenance and testing of the elevators, and whether adequate maintenance and testing of the elevators would have revealed the subject problem. The motion for summary adjudication of the negligence cause of action is therefore denied.

Dated this 11th day of April, 2014

Hon. Elia Weinbach
Judge of the Superior Court