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

Case No.: 2015-1-CV-287720

Motions for Summary Judgment and, in the Alternative, Summary Adjudication by Defendants Joseph J. Albanese, Inc. and Acco Engineered Systems, 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 Joseph J. Albanese, Inc.’s [“JJA”] Separate Statement of Undisputed Facts at No. 2.)

Plaintiff alleges JJA and other 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. Defendants JJA and Acco Engineered Systems, Inc. (“ACCO”) each filed separate answers alleging various affirmative defenses.

Devcon Construction, Inc. (“Devcon”) filed a cross-complaint against JJA, ACCO, Pyramid Painting, Inc. (“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.

The following motions are currently before the Court: (1) JJA’s motion for summary judgment to Plaintiff’s SAC; (2) JJA’s motion for summary judgment to Devcon’s cross-complaint; (3) ACCO’s motion for summary judgment, or in the alternative, summary adjudication to Plaintiff’s SAC; and (4) ACCO’s motion for summary judgment, or in the alternative, summary adjudication to JJA’s cross-complaint.

Plaintiff filed written oppositions and evidentiary objections. Defendant ACCO filed reply papers.

JJA belatedly filed reply papers, that included a Reply Memorandum, Objections to Evidence, a reply to Plaintiff’s response to JJA’s Separate Statement, a response to Plaintiff’s Separate Statement of Additional Dispute Facts, and a Reply Declaration with additional evidence attached, namely deposition testimony.

All of JJA’s reply pleadings were filed on November 18, 2019 and are thus untimely. The deadline to file and serve reply papers was November 15, 2019, at least 5 days before the November 21 hearing. The Rules of Court and the Code of Civil Procedure do not authorize reply separate statements. Moreover, courts typically do not consider points raised for the first time on reply for due process reasons. (See In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) As the reply papers were untimely, include unauthorized reply separate statements, and contain evidence first submitted in reply instead of with the moving papers, the Court exercises its discretion to refuse to consider the pleadings filed and evidence submitted just three days before the hearing.

No trial date has been set.

JJA’s Motion for Summary Judgment to Plaintiff’s SAC

Defendant JJA seeks an order from the Court for summary judgment on the following grounds: (1) JJA’s actions did not have a causal link to the injuries suffered by Plaintiff; and (2) JJA was not in control over the area containing the alleged dangerous condition at the time of the subject incident.

Plaintiff’s Evidentiary Objections

Plaintiff’s evidentiary objections are OVERRULED.

JJA’s Evidentiary Objections

In reply, defendant JJA submitted objections to Plaintiff’s evidence submitted in opposition. With respect to Objection Nos. 2, 3, 15, and 19, the Court does not find these objections to be well-taken and thus the objections are OVERRULED. The Court declines to rule on the remaining objections as they are not material in resolving issues raised by the motion 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 Cause of Action: Negligence

“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).)

On summary judgment, defendant JJA argues there is no causal link between its actions and the injury suffered by Plaintiff to support a claim for negligence.

“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 JJA argues that Plaintiff has failed to produce evidence establishing causation to support negligence. (See Memo of P’s & A’s at p. 11:6-10.) As a consequence, JJA contends its actions or omissions did not cause injury to Plaintiff.

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 JJA here fails to present any affirmative evidence showing that Plaintiff does not possess and cannot reasonably obtain needed evidence to support causation. For example, JJA does not submit factually devoid discovery responses or admissions by Plaintiff to negate the causation element. Instead, defendant JJA argues it did not cause Plaintiff’s accident because it covered the hole/trench with plywood and secured it to the concrete. (See JJA’s Separate Statement of Undisputed Facts at No. 18.) Plaintiff however has submitted contrary evidence demonstrating there was no plywood cover over the opening when the accident occurred. (See Plaintiff’s Additional Fact at No. 44.) As a triable issue of fact exists, the element of causation cannot be determined as a matter of law on summary judgment. (See Gleason v. Klamer (1980) 103 Cal.App.3d 782 [appellate court reversed trial court’s order granting summary judgment because there was a single triable issue of fact].)

Defendant JJA also briefly mentions there was no duty of care concerning the hole once it was completed and covered and thus the negligence claim fails. (See Memo of P’s & A’s at p. 10:23-27.) This argument concerning duty is underdeveloped and not supported by legal authority and therefore does not provide a basis for summary judgment. (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”].)

Second Cause of Action: Premises Liability

“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.)

“In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.) “Without the ‘crucial element’ of control over the subject premises (citation), no duty to exercise reasonable care to prevent injury on such property can be found.” (Ibid.)

Defendant JJA argues Plaintiff fails to submit evidence demonstrating that it had any degree of control over the premises on the day of the accident. (See Memo of P’s & A’s at p. 10:17-18.) Again, JJA does not offer any affirmative evidence showing that Plaintiff does not possess and cannot reasonably obtain evidence to show that JJA had control over the premises on the day of the accident. Moreover, this argument is undermined by the fact that, as JJA admits, it exercised control and management over the area when it poured concrete that formed the hole. (Id. at p. 10:7-8; JJA’s Separate Statement of Undisputed Facts at No. 16.) Also, as stated above, defendant JJA concedes it covered and secured the hole using plywood. (See JJA’s Separate Statement of Undisputed Facts at No. 18.) Nevertheless, JJA argues that its duty to control and manage the hole terminated when subcontractors performed tasks in and around the hole. (Id. at Nos. 19-20.) Defendant JJA however fails to submit any conclusive evidence or supporting legal authorities showing that any such duty expired upon completion and covering of the hole. JJA thus fails to meet its initial burden with respect to the premises liability claim.

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

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

Defendant JJA also moves for an order of summary judgment against Devcon’s cross-complaint. As stated above, Devcon dismissed its cross-complaint without prejudice on February 11, 2019. Consequently, the motion for summary judgment to the cross-complaint is MOOT.

ACCO’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication to Plaintiff’s SAC

Defendant ACCO seeks an order from the Court for summary judgment, or in the alternative, summary adjudication on the following grounds: (1) Plaintiff cannot establish the elements of duty and causation to support his claims for negligence and premises liability; and (2) Plaintiff cannot establish that defendant ACCO owned, possessed, or controlled the premises where the accident occurred to support a claim for premises liability.

First Cause of Action: Negligence

Defendant ACCO argues the negligence claim fails 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 ACCO discusses the various Rowland factors while citing to material facts in its separate statement. (See ACCO’s Separate Statement of Undisputed Facts at Nos. 1-2, 7-15.) The difficulty however with this argument is that it is not clear from the moving papers what ACCO’s conduct is in relationship to the facts of this case. By example, the Court must look at the connection between defendant’s conduct and the injury suffered along with the moral blame attached to the defendant’s conduct. The Court is unable to do so here as defendant ACCO has not identified the nature of its role, if any, in connection with Plaintiff’s lawsuit. As a consequence, the Court cannot properly engage in a duty analysis of the Rowland factors with respect to the first cause of action. This argument therefore is underdeveloped and does not provide a basis for summary judgment or summary adjudication.

Causation

Defendant ACCO next argues that, even if a duty exists, there is no evidence to show that its conduct was a substantial factor in causing Plaintiff’s accident. In support, ACCO argues it did not create the opening, did not place cardboard over the opening, and was not responsible for covering the opening. (See ACCO’s Separate Statement of Undisputed Facts at Nos. 8, 9, 12, 13.) In addition, defendant ACCO contends it was not responsible for safety on the subject premises. Instead, ACCO claims Devcon was responsible for safety, including covering openings such as the one Plaintiff fell through. (Id. at Nos. 11-13.)

In opposition, Plaintiff provides contrary evidence demonstrating that defendant ACCO was responsible for looking for safety hazards, including covering holes to make sure others would not get hurt. (See Plaintiff’s Additional Facts at Nos. 48-49.) As a consequence, a trier of fact may conclude that ACCO’s failure to cover the hole or report the hazard constitutes an omission which caused Plaintiff’s accident. Accordingly, a triable issue exists with respect to causation and therefore the first cause of action cannot be resolved by motion for summary judgment or summary adjudication.

Consequently, the motion for summary judgment is DENIED. The motion for summary adjudication to the first cause of action is DENIED.

Second Cause of Action: Premises Liability

With respect to the premises liability claim, defendant ACCO incorporates the same arguments raised to the negligence cause of action. For reasons stated above, those contentions do not provide a basis for summary adjudication of the second cause of action. Defendant ACCO further argues there is no basis for premises liability as it did not own, possess, or control the premises. (See ACCO’s Separate Statement of Undisputed Facts at Nos. 1, 2, 10-13.) The material facts and evidence cited by defendant ACCO however do not conclusively demonstrate that it did not own, possess, or control the premises and therefore summary adjudication is not warranted.

Accordingly, the motion for summary adjudication to the second cause of action is DENIED.

ACCO’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication to JJA’s Amended Cross-Complaint

Defendant ACCO seeks an order from the Court for summary judgment, or in the alternative, summary adjudication of 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, or in the alternative, summary adjudication to Plaintiff’s SAC. The Court has denied those motions for reasons stated above and does the same with respect to the motions to JJA’s Amended Cross-Complaint.

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

The Court will prepare the Order.