Case Name: Michael Calantropio v. Devcon Construction Inc., et al.

Case No.: 2015-1-CV-287720

Motions for Summary Judgment to the Second Amended Complaint and Amended Cross-Complaint by Defendant and Cross-Defendant Pyramid Painting, Inc.

Factual and Procedural Background

This is a negligence case. On March 2, 2015, plaintiff Michael Calantropio (“Plaintiff”) sustained serious right lower extremity injuries as well as other injuries after he fell several feet off a standing ladder and into an uncovered, unguarded floor opening. (See Second Amended Complaint [“SAC”], first cause of action, ¶ GN-1.) Plaintiff was injured on the site while performing work for his employer, West Coast Architectural Sheet Metal. (See Defendant Pyramid Painting, Inc.’s [“Pyramid”] Separate Statement of Undisputed Facts at No. 3.)

Plaintiff alleges defendants negligently constructed, maintained, inspected, managed, supervised and/or controlled the job site at 100 Mayfield Way in Mountain View, California, including the area where the subject incident occurred. (See SAC, first cause of action, ¶ GN-1.) Defendants allegedly created the dangerous condition and knew or should have known of the dangerous condition they had created including the unreasonable dangers posed by the uncovered, unguarded and concealed floor opening. (Ibid.)

On May 24, 2018, Plaintiff filed the operative judicial council form SAC against defendants alleging causes of action for general negligence and premises liability. Defendant Pyramid filed an answer alleging various affirmative defenses.

Devcon Construction, Inc. (“Devcon”) filed a Cross-Complaint against Joseph J. Albanese, Inc.’s (“JJA”), Acco Engineered Systems, Inc. (“ACCO”), Pyramid, and Cupertino Electric, Inc. (“Cupertino”) alleging causes of action for: (1) equitable indemnity; (2) comparative equitable indemnity; (3) express contractual indemnity; (4) contribution; and (5) declaratory relief.

On February 11, 2019, Devcon dismissed its Cross-Complaint without prejudice.

JJA filed an Amended Cross-Complaint against Devcon, Pyramid, Cupertino, and ACCO alleging causes of action for indemnification and contribution.

Currently before the Court are the motions for summary judgment to Plaintiff’s SAC and JJA’s Amended Cross-Complaint by defendant and cross-defendant Pyramid. (Code Civ. Proc., § 437c.) Pyramid filed a request for judicial notice in conjunction with the motions. Plaintiff filed written opposition and evidentiary objections. Pyramid filed reply papers and evidentiary objections. No trial date has been set.

Motion for Summary Judgment to Plaintiff’s SAC

Defendant Pyramid seeks an order from the Court for summary judgment on the following grounds: (1) Pyramid did not owe a legal duty to the Plaintiff; and (2) Pyramid’s conduct did not cause Plaintiff’s injuries.

Request for Judicial Notice

In support of the motion, Pyramid requests judicial notice of the original Complaint, SAC, and JJA’s Amended Cross-Complaint in this action. (See Request for Judicial Notice [“RJN”] at Exs. 1-3.) Evidence Code section 452, subdivision (d) allows the court to take judicial notice of records in its own file. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].) Judicial notice however is confined to those matters which are “necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) It is not necessary for the Court to take judicial notice of the original Complaint as it no longer the operative pleading. (See State Compensation Ins. Fund v. Super. Ct. (2010) 184 Cal.App.4th 1124, 1130 [an amended pleading supersedes the original one, which ceases to perform any function as a pleading].) Nor is it necessary to take judicial notice of the SAC and JJA’s Amended Cross-Complaint as the Court must consider these pleadings to evaluate the motion. (See Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640 [the issues are framed by the pleadings on a motion for summary judgment].)

Finally, Pyramid seeks judicial notice of Devcon’s Notice of Entry of Judgment, filed on April 4, 2019. (See RJN at Ex. 4.) It is not necessary to take judicial notice of this exhibit as it is not relevant in resolving issues raised by the motion for summary judgment.

Accordingly, the request for judicial notice is DENIED.

Plaintiff’s Evidentiary Objections

In opposition, Plaintiff filed objections to evidence submitted in the motion for summary judgment. The Court declines to rule on the objections as they are not material in resolving issues raised by the motions for summary judgment. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].)

Pyramid’s Evidentiary Objections

In reply, Pyramid filed objections to evidence submitted by Plaintiff in the opposition papers. The Court declines to rule on the objections as they are not material in resolving issues raised by the motions for summary judgment. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].)

Legal Standard

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant has shown that one or more elements of the plaintiff’s cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) “[T]he defendant bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [fn. omitted].) The evidence in favor of the party opposing the motion must be liberally construed, and all doubts concerning the evidence must be resolved in favor of that party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

First and Second Causes of Action: Negligence/Premises Liability

The SAC alleges claims for negligence and premises liability.

“The elements of negligence are: (1) defendant’s obligation to conform to a certain conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279 (Vasquez).)

“The elements of a cause of action for premises liability are the same as those for negligence.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) Accordingly, a plaintiff must prove a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. (Ibid.)

Defendant Pyramid argues that both claims fail, as a matter of law, as Plaintiff cannot establish the required elements for duty and causation.

Duty

“As a general rule, each person has a duty to use ordinary care and ‘is liable for injuries caused by his failure to exercise reasonable care in the circumstances…’ [Citations.] Whether a given case falls within an exception to this general rule, or whether a duty of care exists in a given circumstance, ‘is a question of law to be determined on a case-by-case basis.’ [Citation.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 (Parsons).)

The element of duty is not an immutable fact of nature but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) “Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citations.]” (Parsons, supra, 15 Cal.4th at pp. 472-473.) In determining whether a duty of care exists, the court engages in a weighing and balancing of these factors. (See Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 34 [appellate court weighed Rowland factors and concluded that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business”].)

“Duty, being a question of law, is particularly amenable to resolution by summary judgment. [Citation.]” (Parsons, supra, 15 Cal.4th at p. 465.)

With respect to duty, defendant Pyramid relies on the material facts and supporting evidence cited in its separate statement at nos. 14, 15, 16, 21, 22, 24, and 25. (See Memo of P’s & A’s at pp. 6:24-7:1.) In doing so, Pyramid argues Plaintiff was responsible for inspecting the area for hazards prior to setting up the ladder and climbing on top of it. Also, Pyramid contends Plaintiff cannot establish if Pyramid performed any work at the trench opening or retained control over the piece of cardboard used to cover the trench hole.

Pyramid however fails to analyze its duty argument in accordance with the Rowland factors for purposes of summary judgment. As stated above, in examining whether or not a duty is owed, the Court considers foreseeability of harm, closeness of connection between defendant’s conduct and injury suffered, and any moral blame attached to defendant’s conduct. With respect to duty, Pyramid fails to address any of these factors in connection with its role as a painter on the jobsite.

Furthermore, the material facts and evidence cited in the separate statement (nos. 14, 15, 16, 21, 22, 24, and 25) in support of this argument do not adequately address the element of duty. By example, Pyramid cites to material fact nos. 14 and 22 to advance its positions that it did not perform any work at the trench opening or retain any control over the cardboard allegedly covering the trench hole. (See Memo of P’s & A’s at p. 6:24-26.) However, at least some of the deposition testimony cited by Pyramid, suggests in fact that it may have performed some work in the hole area in the tank yard. (See Pyramid’s Separate Statement of Undisputed Facts at No. 22 [Plaintiff’s Depo at p. 202:2-15].)

Therefore, defendant Pyramid’s argument with respect to the element of duty does not weigh in favor of summary judgment.

Causation

Even if there is a duty, defendant Pyramid argues Plaintiff cannot establish the element of causation to support his claims for negligence and premises liability.

“In a negligence action the plaintiff must show the defendant’s act or omission (breach of duty) was a cause of the plaintiff’s injury. The element of causation generally consists of two components. The plaintiff must show (1) the defendant’s act or omission was a cause in fact of the plaintiff’s injury, and (2) the defendant should held responsible for negligently causing the plaintiff’s injury. The second component is a normative or evaluative one that asks whether the defendant should owe the plaintiff a legal duty of reasonable care under the circumstances of the case.” (Vasquez, supra, 118 Cal.App.4th at p. 288.)

“The first component of causation in fact generally is a question of fact for the jury. Causation in fact is shown if the defendant’s act or omission is ‘a substantial factor’ in bringing about the plaintiff’s injury. [Citations.] This issue ordinarily may not be resolved on summary judgment.” (Vasquez, supra, 118 Cal.App.4th at p. 288; see Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687 [grant of summary judgment on causation improper unless under undisputed facts there is no room for a reasonable difference of opinion on casual nexus].)

Defendant Pyramid argues that Plaintiff cannot prove causation between Pyramid’s painting work on the project and Plaintiff’s injuries. (See Memo of P’s & A’s at p. 7:17-18.) Pyramid contends any attempt by Plaintiff to establish causation amounts only to mere speculation and conjecture. (Id. at p. 7:21-26.)

In California, summary judgment law no longer requires a defendant moving for summary judgment to conclusively negate an element of the plaintiff’s cause of action. (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102.) “Instead, a defendant may simply show the plaintiff cannot establish an essential element of the cause of action ‘by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.’ [Citation.] Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. ‘The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing’ to support an essential element of his case. [Citation.] Under the latter approach, a defendant’s initial evidentiary showing may ‘consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.’ [Citation.] In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred.” (Id. at pp. 1102-1103.)

Defendant Pyramid here fails to present any affirmative evidence showing that Plaintiff does not possess and cannot reasonably obtain needed evidence to support causation. For example, Pyramid does not submit factually devoid discovery responses or admissions by Plaintiff to negate the causation element. Nor does Pyramid’s memorandum cite to any material facts or evidence in its separate statement to support its argument for causation. (See Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant’s motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds]; see also Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [trial court not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”].) Consequently, Pyramid fails to meet its initial burden on summary judgment with respect to causation.

Accordingly, the motion for summary judgment to the SAC is DENIED.

Motion for Summary Judgment to JJA’s Amended Cross-Complaint

Pyramid also seeks an order from the Court for summary judgment to JJA’s Amended Cross-Complaint for indemnification and contribution. The outcome of this motion depends on the Court’s ruling on the motion for summary judgment to Plaintiff’s SAC. The Court has denied that motion for reasons stated above and does the same with respect to the motion to JJA’s Amended Cross-Complaint.

Accordingly, the motion for summary judgment to JJA’s Amended Cross-Complaint is DENIED.

The Court will prepare the Order.