Case Number: BC625573 Hearing Date: March 01, 2019 Dept: NCE
MOTION FOR SUMMARY JUDGMENT
(OR, in the Alternative, Summary Adjudication)
[CCP § 437c; CRC 3.1350 et seq.]
Date: 3/1/19
Case: Sutton, et al. v. Tracey, et al. (BC 625573)
Tentative Ruling:
Defendant and Cross-Defendant William Kranhold’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues is GRANTED.
Defendant William Kranhold has established that the “completed and accepted” work doctrine shields him from liability for his installation of the floor-based, projection screen in the Tracey’s living room. Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, discusses and recounts the application of this doctrine by various courts over time, helpfully summarizing the doctrine and its underlying rationale as follows:
[A]s a general rule, after a contractor had completed [work] and the owner had accepted it, the contractor was not liable to third persons for injury caused by the condition of the work done even though negligent in performing the contract. . . . Parties for whom work contracted for is undertaken, must see to it before acceptance, that the work, as to strength and durability, and all other particulars necessary to the safety of the property and persons of third parties, is subjected to proper tests, and that it is sufficient. By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties, the liability of the contractors has ceased, and their own commenced.
(Id. at p. 1466 [citation omitted].) There is, however, one “exception to the general rule,” which concerns “latent” defects. (Id. at pp. 1466-1467.) That is, “[i]f an owner, fulfilling the duty of inspection, cannot discover the defect,” then the completed and accepted work doctrine does not protect the contractor from liability to third parties for the latent and defective work. (Id. at p. 1467.) Put another way, the doctrine only applies to alleged defects where the potential for danger is “patent” in that “it would be discovered by the inspection an owner would make in the exercise of ordinary care and prudence.” (Id. at pp. 1470-1471.)
Here, Defendant Kranhold has submitted evidence showing that Kranhold completed the installation work in the area where plaintiff Sutton claims to have fallen, that the work was inspected and accepted by the Traceys in October or November of 2012, and that the Traceys thereafter assumed custody and maintenance of their living room. [UMF Nos. 1-11 (evidence cited therein); Kranhold Decl. ¶¶ 2-9; Vasyuk Decl. Ex. B (Kranhold Depo. at p. 39); Vasyuk Decl. Ex. A (Amanda Tracey Depo. at pp. 36-37).] Further, Defendant Kranhold has submitted evidence that the visible opening in the living room floor alleged to have resulted in Plaintiff Sutton’s fall was discoverable to any owner in the exercise of ordinary care and prudence, including the size, location, and nature of the opening. [See UMF Nos. 12-16 (evidence cited therein); Kranhold Decl. ¶¶ 3, 4; Vasyuk Decl. Ex. A (Amanda Tracey Depo. at p. 20).] Moreover, Amanda Tracey conceded in her deposition that she knew there would be a hole in the floor once the system was installed and was aware of such a hole after it was installed. [Vasyuk Decl. Ex. A (Amanda Tracey Depo. at pp. 45-46).] Likewise, Jason Tracey stated during his deposition that he accepted the work of Kranhold and recognized that there would be a “depression” or “hole” in the floor when the installed equipment was in use. [Vasyuk Decl. Ex. C (Jason Tracey Depo. at pp. 24, 31).] It is also worth noting that both Amanda Tracey and Jason Tracey stated in their respective depositions that neither holds Kranhold responsible for the plaintiff’s fall. [Vasyuk Decl. Ex. A (Amanda Tracey Depo. at p. 41); Vasyuk Decl. Ex. C (Jason Tracey Depo. at pp. 24-25, 510.]
All of the foregoing is sufficient to shift the burden to plaintiffs and cross-claimants to raise triable issues of material fact to withstand summary judgment.
In their “limited opposition” to defendant Kranhold’s motion, Plaintiffs Sutton and Stowell state explicitly that they “do not dispute that Kranhold has a complete defense to liability in this case under the ‘completed and accepted’ doctrine.” (Sutton/Stowell Opp. at p. 1.) Indeed, they do not raise a genuine dispute to the relevant facts relied upon by defendant Kranhold in support of his motion for summary judgment on this basis. [See Sutton/Stowell Response to UMF Nos. 3-11 (undisputed)]. In light of Plaintiffs’ concession and corresponding failure to raise any triable issue of material fact with respect to the “completed and accepted” doctrine, summary judgment as to defendant Kranhold is accordingly GRANTED as to the complaint. (In so doing, the Court does not reach any of defendant Kranhold’s other asserted bases for summary judgment as to the complaint, including whether the purported “hole” in the Tracey’s living room was “open and obvious” as a matter of law.)
As to the cross-complaint by Amanda Tracey and Jason Tracey, the Court finds that, because cross-defendant Kranhold has established that he is not liable to plaintiffs, the Tracey cross-complainants cannot establish any basis for indemnity, apportionment of fault, or causes of action based thereon, as asserted in the cross-complaint. Put quite simply, “there can be no indemnity without liability.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158-1159; see also BFG Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.) The Tracey cross-complainants do not raise any triable issue of material fact with respect to application of the completed and accepted work doctrine. [See Tracey Response to UMF Nos. 1-10 (undisputed).] Indeed, implicitly conceding the applicability of the general rule, the Tracey cross-complainants merely assert that the exception for latent defects should apply. (See Tracey Opp. at p. 7.) But other than the conclusory suggestion that the visible “hole” in their living room floor was a latent and not patent purported defect, the Tracey cross-complainants do not meet their shifted burden of adducing evidence to raise a triable issue to withstand summary judgment in favor of cross-defendant Kranhold here.
As to cross-complainant Milestone AV Technologies LLC, the motion for summary judgment in favor of cross-defendant Kranhold is GRANTED for all of the foregoing reasons. The motion is also granted on the separate and additional ground that cross-complainant Milestone failed to file any opposition to the motion. Because this party against whom summary judgment is sought has failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers, the Court grants the motion as to Milestone pursuant to CCP § 437c(b)(3) as well.
Defendant Kranhold’s UNOPPOSED Request for Judicial Notice in Support of Motion is GRANTED.
Because the Court has ruled on the motion without reaching issues concerning the so-called “open and obvious” doctrine, the Court finds it unnecessary to reach Plaintiffs’ evidentiary objections or the Tracey Cross-Complainant’s objections to the Declaration of Joellen Gill.