Case Name: Ruben Mendoza v. City Sports Club, et al.
Case No.: 16-CV-298379

These cross-actions arise from an accident on a construction worksite in which plaintiff Ruben Mendoza was injured. Cross-defendant Preston Pipelines, Inc. moves for summary judgment or, alternatively, summary adjudication of each cause of action asserted against it by defendants and cross-complainants Dollinger Properties, Exstra-Arques LLC, DP Ventures, LLC, and DPM Property Management. The cross-complainants oppose Preston’s motion.

I. Factual and Procedural Background

Plaintiff filed the original complaint in this action on August 2, 2016, alleging that he was injured when he fell into a hole in the ground on his Sunnyvale worksite on August 6, 2014. He named cross-complainants Dollinger Properties and Exstra-Arques LLC among other defendants, but has at no point named Preston as a defendant. Cross-complainants DP Ventures, LLC and DPM Property Management were subsequently named as Doe defendants. Plaintiff asserts claims for general negligence and premises liability against the defendants.

On August 14, 2018, cross-complainants filed a cross-complaint against Preston and others, alleging claims for (1) implied contractual indemnity, (2) total indemnity, (3) equitable indemnity, (4) express indemnity, (5) breach of contract, (6) negligence, (7) contribution, and (8) declaratory relief.

The action was initially assigned to Department 9. After Preston filed the instant motion for summary judgment or, alternatively, summary adjudication on March 19, 2019 and cross-complainants filed their opposition, the matter was designated as complex and re-assigned to Department 1. Preston’s motion is now fully briefed and has come on for hearing in this department.

II. Request for Judicial Notice

Preston’s request for judicial notice of the complaint and amended cross-complaint in this action is GRANTED. (Evid. Code, § 452, subd. (d).)

III. Legal Standard for a Defendant Seeking Summary Judgment or Adjudication

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).)

This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. (Ibid.) “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.” (Ibid.) The opposing party must produce substantial responsive evidence that would support such a finding; evidence that gives rise to no more than speculation is insufficient. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.) The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] 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.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.)

On summary judgment, “the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717; see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].) Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co., supra, 86 Cal.App.3d at pp. 717-718.)

Even if there are some triable issues in the case, the court has the power to summarily adjudicate that one or more causes of action has no merit, there is no affirmative defense to one or more causes of action, there is no merit to a claim for punitive damages (Civil Code section 3294), or one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Code Civ. Proc., § 437c, subd. (f)(1).) Absent a stipulation approved by the court, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)

IV. Analysis

Preston moves for summary judgment or, alternatively, summary adjudication of each cause of action asserted by the cross-complainants on the ground that it did not dig or contribute to the dangerous condition of the hole into which the plaintiff fell at his worksite. Cross-complainants do not dispute that Preston would be entitled to summary judgment under these circumstances; however, they maintain that there are triable issues of fact regarding Preston’s involvement.

It is undisputed that the scope of Preston’s work was to install underground wet utilities. (Cross-Complainants’ Resp. to Preston’s Sep. Statement of Undisputed Material Facts, no. 1.) Preston began its work as early as April of 2014, but had no workers on site between July 13 and August 18 of 2014, the period when the accident occurred. (Id., nos. 13-16; Preston’s Resp. to Cross-Complainants’ Sep. Statement of Undisputed Material Facts, no. 4.)

A. Preston’s Evidence

In support of its motion, Preston points to deposition testimony by DPM Superintendent Mike Strong. Strong testified that the hole into which plaintiff fell had been covered with plywood with the word “hole” painted on it during the June prior to the accident. By around June 26, the plywood had been replaced with a pallet. Two to three days before the accident on August 6, Strong again observed that the hole was covered with a pallet. Strong stated that the hole was dug either by cross-defendant Jesmar Mechanical, Inc. “during the building plumbing stub-out or when Preston Pipelines dug it to bring the … drain line to the building for connection. I’m not clear when or who.”

Preston also submits a declaration by its Project Executive Jordan Thomas. Thomas supervised Preston’s proposal to DPM regarding the work at issue and supervised Chris Ramos, Preston’s Project Manager at the worksite. Thomas states that Preston did not perform any work in or around the hole that is the subject of the action prior to August 18, 2014, when it began its work “[t]o complete the connection of the storm drains.” Prior to the accident, Preston notified DPM that DPM needed to have the area “stake[d]” so that Preston could dig and install the underground lines. Thomas obtained a “Job Hours Report” from Preston’s accounting department confirming that Preston had no workers on the site between July 13 and August 18, 2014. He declares that digging the hole into which plaintiff fell was outside Preston’s scope of work under the agreement he negotiated.

Preston’s evidence satisfies its initial burden to show that it did not dig the hole that injured plaintiff or contribute to its dangerous condition. Thomas’s declaration provides evidence that Preston did not dig or perform any work in or around the hole before the accident, and that Preston’s workers were not present at the site when the hole became uncovered.

B. Cross-Complainants’ Evidence

In opposition to Preston’s motion, cross-defendants submit a declaration by Jesmar’s President and Chief Operating Officer, Carlos Magdaleno, who states that he personally observed Preston employees and/or personnel dig the hole at issue before the accident. Magdaleno declares that Jesmar did not dig, maintain, control, oversee, or otherwise assume responsibility for the hole and, pursuant to industry standards and its subcontract with DPM, was not permitted to work more than five feet from the building where it was working on the property’s roof drains, while the hole was located 15 feet away from this area.

Magdaleno’s declaration raises a triable issue of fact regarding which entity dug the hole that caused plaintiff’s accident. On reply, Preston responds that, regardless of who initially dug the hole, cross-complainants do not contest that the hole was covered two to three days before the accident and Preston had no workers on site between then and the accident. However, the evidence is that the hole was initially covered with plywood marked “hole,” but around June 26—when Preston’s workers were still on site—the plywood was replaced with a pallet. There is no evidence in the record regarding who covered the hole with a pallet and whether it was safe to do so.

The Court accordingly finds that there are triable issues of material fact regarding which entity dug the hole, which entity replaced its plywood covering with a pallet, whether it was safe to cover the hole with a pallet, and how the hole ultimately became uncovered.

V. Conclusion and Order

Preston’s motion for summary judgment or, alternatively, summary adjudication is DENIED.

The Court will not rule on the remaining objections to evidence filed with Preston’s reply papers (nos. 1-4 and 7-8), since they are immaterial to its disposition of the motions. (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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

The Court will prepare the order.