Case Name: Lim, et al. v. New Bonded Cleaners, et al.

Case No.: 1-12-CV-233017

Defendants Donald Carter and Golden State Equipment (collectively, “Repair Defendants”) move for summary judgment against plaintiffs Baek Soon Lim (“Lim”) and Myungok Lim (collectively, “Plaintiffs”).  New Bonded Cleaners (“New Bonded”) also moves for summary judgment against Plaintiffs.

Plaintiffs’ objections to evidence in support of Repair Defendants’ motion for summary judgment are OVERRULED, as they failed to provide a proposed order as required by California Rules of Court, rule 3.1354(c).

Plaintiffs’ objections to evidence in support of New Bonded’s motion for summary judgment are OVERRULED, as they failed to provide a proposed order as required by California Rules of Court, rule 3.1354(c).

New Bonded’s objections to evidence in support of Plaintiffs’ opposition to New Bonded’s motion for summary judgment are OVERRULED, as it failed to provide a proposed order as required by California Rules of Court, rule 3.1354(c).

Repair Defendants’ objections to evidence in support of Plaintiffs’ opposition to Repair Defendants’ motion for summary judgment are OVERRULED, as they failed to provide a proposed order as required by California Rules of Court, rule 3.1354(c).

Repair Defendants’ motion for summary judgment is DENIED.  Regarding the duty element, Repair Defendants only address the issue of whether or not industry standards dictate the use of a guard over the “close” button.  However, the ANSI standards are not statutes or regulations, and the custom of others in a business or industry does not, as a matter of substantive law, establish a legal standard of care.  (See Bouse v. Madonna Constr. Co. (1962) 201 Cal. App. 2d 26, 29-30.)  As noted in Pauly v. King (1955) 44 Cal.2d 649, 655, evidence of custom may be admissible to support a charge of negligence, but the standard of due care is not fixed by custom or altered by its presence or absence.  “Failure to observe custom may be evidence of negligence, but the standard is not fixed by custom.  The standard is always due care.  The presence or absence of custom does not alter that standard.  Custom may assist in the determination of what constitutes due care.  What others do is some evidence of what should be done, but custom is never a substitute for due care.”  (Pauly, supra, 44 Cal.2d at p. 655, quoting Owen v. Rheem Mfg. Co., 83 Cal.App.2d 42, 45.)

Here, Repair Defendants contend that they did not have a duty to Plaintiffs to install a button guard because the ANSI standards did not require such a guard.  However, the fact that industry standards do not require a guard goes towards establishing whether or not a duty was breached, not towards whether or not Repair Defendants owed a duty to Plaintiffs in the first place.  Accordingly, Repair Defendants have not met their initial burden regarding this element.  (See Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72.)

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Next, Repair Defendants argue that Plaintiffs cannot establish that Lim’s injury was caused by an inadvertent pressing of the close button on the Subject Press.  According to Repair Defendants, if Plaintiffs cannot prove that Lim inadvertently pressed the close button, then Lim must have intentionally pressed the button in which case a guard would have not prevented the accident.  Repair Defendants appear to argue that any failure to install a guard over the close button was not the cause of Plaintiffs’ injuries because Lim must have intentionally pressed the close button.  In addition, Repair Defendants argue that Plaintiff has no evidence to show that the guard would have prevented the activation of the close button.

The evidence offered by Repair Defendants does not support their contention that Plaintiffs cannot prove Lim’s inadvertent pressing of the close button.   The fact that Lim opened and closed the Subject Press prior to the accident has no bearing on whether Lim intentionally or inadvertently pressed the close button in the instance that resulted in his injury.  Further, the fact that Lim cannot recall the accident does not preclude other evidence to show that Lim inadvertently pressed the button.  Lastly, the evidence does not support Repair Defendants’ contention that Plaintiffs will be unable to prove that a guard would have prevented the accident.  Although Repair Defendants submit an expert declaration which states that the guard for the close button does not prevent all inadvertent activations by an operator, this evidence does not establish that Plaintiffs will be unable to prove that a guard would have prevented the accident.  Accordingly, Repair Defendants have not met their initial burden with respect to the causation element.

New Bonded’s motion for summary judgment is GRANTED.  Based on the evidence presented, it is not foreseeable that Lim, a person unknown to New Bonded’s owner and who has no experience repairing dry cleaning equipment, would come to the New Bonded premises for the purpose of attempting to repair the Subject Press.  (See Ballard v. Uribe, 41 Cal. 3d 564, 572 [“[A] court’s task – in determining “duty” – is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”].)  Accordingly, New Bonded has met its initial burden with respect to showing that it did not owe a duty to Plaintiffs.

The evidence presented by Plaintiffs is not sufficient to create a triable issue of material fact regarding the duty element, as evidence of potential problems that may arise with Lim’s long-term memory is not sufficient to create a triable issue of material fact with respect to Lim’s testimony regarding his lack of repair experience.  There is no evidence presented that Lim had actual problems with his long-term memory at the time of his deposition.