Tentative Ruling

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Ryan Kaufman vs Apeel Technology Inc
Case No: 17CV03060
Hearing Date: Wed Feb 19, 2020 9:30

Nature of Proceedings: Motion for Summary Judgment

Tentative Ruling: The court denies defendant Allergan, Inc.’s Motion for Summary Judgment or Summary Adjudication in the Alternative.

Background: Plaintiff Ryan Kaufman alleges that, on June 1, 2017, while working on premises located at 71 S. Los Carneros Road in Goleta, he was burned by a dangerous and defective condition at the premises, consisting of hidden high voltage cables. He filed his complaint on July 12, 2017, against original defendants Apeel Technology, Inc., dba Apeel Sciences, Inc. (erroneously sued as Apeel Services, Inc.); Southern California Edison; and Allergan Inc. (“Allergan”). The causes of action in the complaint are: 1) premises liability, 2) general negligence, 3) products liability (strict liability, negligence, and breach of implied and express warranties); and 4) negligence per se.

A CMC is scheduled for April 22, 2020.

Motion: Allergan moves for summary judgment or adjudication. Allergan argues that it has a complete defense because the damages are barred by workers compensation exclusivity. Allergan contends that the causes of action for negligence and premises liability fail because it did not have a legal duty to maintain the premises, did not owe plaintiff a legal duty, did not breach any duty, and did not cause plaintiff’s injuries. (Allegan does not mention the products liability cause of action, which plaintiff does assert against Allergan.) Plaintiff opposes the motion.

1. Pleadings: CRC 2.109 and 3.1113(h) provide that the page numbering of papers filed in trial court “must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).” Both parties violate this rule. Allergan begins the motion and memorandum with Roman numerals and does not commence with Arabic numerals until the sixth page of the document. Plaintiff numbers the first two pages with Arabic numbers, then numbers tables with Roman numerals, then switches back to Arabic numbers with page 1 at the sixth page of the opposition.

The requirement is not just a technical one. The court reviews pleadings very carefully, often finding it necessary to refer back to a pleading after reading an opposition or reply. When referring back, the court hopes to find help in the tables. But, when the page numbers in the tables do not match the actual pages in the electronically filed pdf document, the tables are of limited help.

CRC 2.109 and current 3.1113(h) have been in effect since January 1, 2017. Responsible counsel must familiarize themselves with and follow applicable court rules.

2. Summary Judgment Standards: Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. (§ 437c, subd. (p)(2).)” Id.

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Id. at 850. A burden of production entails only the presentation of evidence, while a burden of persuasion “entails the establishment through such evidence of a requisite degree of belief.” Id.

A party moving for summary judgment has the burden to show that it is entitled to judgment with respect to all of the plaintiff’s theories of liability. Lopez v. Superior Court, 45 Cal.App.4th 705, 717 (1996). The court “must deny the motion if there is a single issue of material fact in dispute.” Cates v. California Gambling Control Com., 154 Cal.App.4th 1302, 1308 (2007).

4. Objections to Evidence: Allergan objects to evidence plaintiff has submitted in opposition to the motion. Some of these objections are to the manner in which they are stated in plaintiff’s separate statement, not to the evidence itself.

a. Objections to Plaintiff’s Deposition Testimony:

Objections ##1, 2: Allergan objects that plaintiff’s deposition testimony contradicts other portions of his deposition testimony in which he says he saw one “HIGH VOLTAGE” sign. The California Supreme Court “has consistently refused to allow a triable issue of fact to be conjured by the submission of an affidavit contradicting the declarant’s prior deposition testimony.” Scheiding v. Dinwiddie Construction Co., 69 Cal.App.4th 64, 77 (1999), citing D’Amico v. Board of Medical Examiners, 11 Cal.3d 1, 22 (1974). But the same does not apply to contradictory statements within a deposition. The impact of such conflicts in testimony are for a trier of fact. As for the one sign, the court has factored that into its analysis. Overruled.

#3-19: The court need rule only on those objections to evidence that it deems material to its disposition of the motion. CCP § 437c(q). The court does not deem the statements objected to material to disposition of the motion. The court declines to rule on these objections.

b. Objections to Marvin S. Keshner’s Declaration:

#20, 22, 29, 32, 33: See discussion of Objections 3-19 above.

##21, 23, 39: Allergan objects to Keshner’s statements about the National and California State Electrical Codes and OSHA, CFR 29, NFPA 70E and Cal-OSHA. Knowledge of these codes is within Keshner’s expertise. The other fact included in this objection is supported by the depositions Keshner reviewed Overruled.

#24, 26: These facts are supported by the depositions Keshner reviewed. Overruled.

#25: The expert can testify as to code compliance. The other fact included in this objection is supported by the depositions Keshner reviewed Overruled.

##27, 30: Statements regarding Allergan’s relationship to the premises and its responsibilities are outside the scope of this expert’s knowledge. (The court has this information from other evidence.) Sustained.

##28, 34, 37: The expert can testify as to standards of practice. Overruled.

#31: What safety and emergency response procedures should include are within Keshner’s expertise. Overruled.

#35: This evidence is supported by materials Keshner reviewed and the expert can testify as to standards of practice. Overruled.

#36: These facts are supported by depositions the expert reviewed. Code compliance is within his expertise. Overruled.

#38: The court sustains the objection to this recitation of facts and conclusion regarding plaintiff’s state of mind.

#40: The court sustains the objection to the conclusion that Allergan was negligent as an improper legal conclusion.

#41: The court overrules the objection to the conclusion regarding code compliance. (The court is not relying on the expert with respect to Allergan’s duties.)

c. Objections to John J. Nichols’s Declaration:

#42: This statement is relevant and not prejudicial. Overruled.

#43: Knowledge of National and California State Electrical Codes, OSHA, CFR 29, NFPA 70E’ and Cal-OSHA and compliance therewith are within this expert’s expertise. Overruled.

##44, 45: The court overrules the objection to the conclusion regarding code compliance.

#46: Statements regarding Allergan’s relationship to the premises and its responsibilities are outside the scope of this expert’s knowledge. (The court has this information from other evidence.) Sustained.

#47: These facts are supported by depositions the expert reviewed. (The court will disregard the comment “on behalf of Allergan.”) Overruled.

#48: The court sustains the objection to this recitation of facts and conclusion regarding plaintiff’s state of mind.

#49: This is a statement of the standard of care. Overruled.

#50: The court sustains the objection to the conclusion that Allergan was negligent as an improper legal conclusion.

#51: The court overrules the objection to the conclusion regarding code compliance. (The court is not relying on the expert with respect to Allergan’s duties.)

d. Objections to John Matulich’s Deposition:

##52, 53, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67: These matters are relevant. Overruled.

##54, 55: These statements are relevant. They do not misstate the testimony. What Allergan offers as conflicting testimony is not inconsistent with the statement. Overruled.

#61: The court has considered the alleged misstatement of fact in the summary of facts below. Overruled.

#68-70: See discussion of Objections 3-19 above.

#71: This statement in the separate statement does not misstate the facts. Matulich’s statement that he was aware of scope of the work Beyond Heating was doing on June 1, 2017, supports an inference that Beyond Heating was on the property that date. (The court disregards the statement “on Allergan’s behalf.”) Overruled.

#72: There is foundation for Matulich’s statement that Steenerson was not on the property on the date of the incident prior to the incident and it is not hearsay. Matulich explained that he knows Steenerson was not there because he called him after the incident and Steenerson then came over. [Matulich Depo. 243:2-6] Overruled.

#73: This statement is relevant. The point of the statement is who was there, not the universe of persons having the combination. Overruled.

#74: Hearsay. Sustained.

e. Objections to Daniel Gonzalez’s Deposition:

#75: See discussion of Objections 3-19 above.

##76, 77: These facts are relevant. Overruled.

3. Facts: The court has taken material facts from Allergan’s separate statement of undisputed material facts (##1-16), plaintiff’s response thereto and statement of additional facts (##17-83), and Allergan’s response thereto. The court will refer to these facts as “SS#.” When either party has indicated a dispute, the court has reviewed the underlying evidence to determine whether there is truly a dispute and, if so, the extent to which the fact is undisputed. In many instances, Allergan says that plaintiff’s evidence is not material or is irrelevant because a certain fact is “not at issue.” The court has determined what facts it considers material and has included those in the discussion below.

(The place where plaintiff drilled to install a security camera is variously referred to as a “bus duct,” “busway,” and “busbar.” For clarity, the court will refer to it as the “busway.”)

Plaintiff was employed by CompuVision Enterprises, Inc. (“CVE”) at the time of his work accident on June 1, 2017. [SS #1] Plaintiff was performing work within the scope of his employment as a lead technician for CVE at the time of his accident. [SS #2] Apeel Sciences, Inc. (“Apeel”), the property’s tenant, hired CVE to install security cameras on the property. [SS #3] Plaintiff filed a Worker’s Compensation claim with Travelers Property Casualty Company of America for injuries resulting from his accident. [SS #4]

Allergan leased the property from Los Carneros Business Park (“LCBP”) beginning on February 12, 2008, though it began occupying the property in 2006. [SS ##5, 19] Allergan vacated the property by December 2014 and entered into an agreement to sublease the property to Apeel on March 2, 2017, under which Apeel occupied the property in April 2017. [SS ##6, 7] LCBP hired Meridian Group Real Estate Management (“Meridian”) to maintain, manage, and operate the premises, including maintenance and repair. [SS #8] Los Carneros Opportunity (“LCO”) purchased the premises from LCBP on March 17, 2017 and took ownership subject to the Allergan lease. [SS #9] LCO hired Daketta Pacific (“Daketta”) to manage the property and Daketta was the property manager at the time of plaintiff’s accident. [SS #10]

Three CVE (sic) (Michael Follett, Dylan Walker, plaintiff) and Apeel employee (Danny Gonzalez) performed a “walk-through” of the property on May 25, 2017 to view potential locations for security cameras. [SS #11] During the May 25, 2017 walkthrough, the group never discussed installing the security camera on the busway. On that date, Danny Gonzalez, IT manager for Apeel, asked that the subject camera location be moved to a spot inside the power feed area. [SS #12] Plaintiff identified a “SOUTHERN CALIFORNIA EDISION HIGHT [sic] VOLTAGE” warning sign on electrical box within the gated power feed area. (This sign was not on the bus duct.) [SS #13] Plaintiff’s coworkers identified the gated power feed area as electrical in nature before plaintiff’s accident. [SS #14] On June 1, 2017, plaintiff voluntarily drilled into the electrical busway within the gated power feed area. [SS #15] Allergan did not direct plaintiff regarding where to install the security camera and did not direct him to drill into the busway. [SS #16]

John Matulich was the facilities manager for the property since 2002. [SS #18] When Allergan moved into the property in 2006, it continued to employ Matulich in his role as facilities manager. [SS #19] When Allergan moved out of the property in December 2014, it terminated Matulich’s role as facilities manager. [SS #20] In May 2015, Meridian contracted with Matulich to be the facilities manager/caretaker of the property. [SS #21] During that time, Matulich continued to deal directly with Allergan, especially when it came to technical terms about what was going on with the property. [SS #22] When the property manager changed from Meridian to Daketta in May 2017, Matulich again contracted with Allergan directly to monitor the property from May 2017 until June 5, 2017. [SS #23] Matulich continued his prior duties as facilities manager for Allergan and was also tasked with the responsibility to assist Apeel with its move-in process to the property, including coordinating with contractors doing work on the property. [SS #24] Matulich was working and being paid by Allergan on June 1, 2017. (Allergan says this misstates testimony but Allergan is confusion testimony regarding an earlier time and June 1, 2017.) [SS #25]

The subject building included a power feed area on the rear exterior of the building that included multiple high-voltage electrical facilities. [SS #27] One of the electrical facilities was a large metal box, atop of which was a component referred to as a busway that went from the top of the box to the side of the building, and then through the building, into an electrical room inside the subject building. [SS #28] There was high-voltage electricity traveling through the busway between the metal box and its entrance into the building through the exterior wall. [SS #29] The electrical power feed area for the subject building was enclosed by a 7-8-foot chain-linked fence surrounding the entire enclosure. [SS #30] The fenced enclosure for the power feed area had two rolling gates that were secured with two separate padlocks. [SS #31] One of the padlocks to the enclosure gates belonged to Southern California Edison. [SS #32] The second padlock was a combination lock, which allowed access through the secured enclosure by those persons who had the combination to the lock. [SS #33]

Matulich had the combination to the padlock to the power feed area. Others who had the combination were the electrical contractor that provided services at the property, Chad Steenerson; and the supervisor of Beyond Heating & Air, an HVAC company that provided air conditioning and heating services for the property. [SS ##34, 35] Beyond Heating often required access to the roof where the equipment relating to heating, ventilating, air conditioning, and process cooling was located. [SS #36] Matulich had a “gentleman’s handshake or an understanding” with Beyond Heating that they would let him know when they were going to be working on site and using the power feed access area to access the ladder to the roof. [SS #37]

The primary voltage of high voltage, high power equipment such as was involved in this case typically ranges from 4160 volts-16,000 volts, three phase. The secondary output voltage to the busway equipment in this case was 277/480, three phase. [SS #38] Per the National and California State Electrical Codes, OSHA, CFR 29, NFPA 70E and Cal-OSHA, the fenced area containing the high voltage, high power equipment should have been locked and should have had large, bold, colored warning signs, stating, “DANGER—HIGH VOLTAGE—KEEP OUT”. [SS #39] Prior to the incident, there were never any warnings signs placed on the gate or fence of the enclosure for the power feed area. [SS #40] Prior to the incident, there were never any warning signs placed on the subject electrical box or busway involved in the incident. [SS #41] Prior to the incident, Matulich never had any discussions with anyone about altering the enclosure surrounding the power feed area, putting up warning signs, or any concerns regarding access into the power feed area. [SS #42]

On the date of the incident, Beyond Heating employees were working on the HVAC on the roof of the property. [SS #48] Matulich was unaware that CVE or Beyond Heating was on the property on the date of the incident. [SS #49] He was not at the property on that date. [SS #50] Electrician Steenerson was not on the property on that date. [SS #51]

Plaintiff believed he was to install the camera on what he assumed was a brace attached to the wall inside the power feed area. [SS #55] The brace turned out to be the busway through which high-voltage electricity was distributed. [SS #58] Plaintiff found the gate to the power feed area unlocked and open. [SS #60] Other than the one sign on a box, plaintiff encountered no warning signs when he entered the electrical area or began working on and above the subject electrical equipment. [SS #62] He stayed clear of the box that had a warning saying “Southern California Edison High Voltage.” [SS #63]

4. Analysis:

a. Workers’ Compensation Exclusivity: Allergan argues that it is not liable to plaintiff because the Workers’ Compensation Act provides his exclusive remedy.

“When the conditions of compensation exist, recovery under the workers’ compensation scheme ‘is the exclusive remedy against an employer for injury or death of an employee.’” Privette v. Superior Court, 5 Cal.4th 689, 697 (1993) [citation omitted]. “The Act’s exclusivity clause applies to work-related injuries regardless of fault, including those attributable to the employer’s negligence or misconduct, as well as the employer’s failure to provide a safe workplace. But the exclusivity clause does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury.” Id. [citations omitted].

In Privette, the California Supreme Court extended the worker’s compensation limitation on liability to the person who hires a contractor whose employee is injured. “When, as here, the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” Id. at 702.

Plaintiff was CVE’s employee. Apeel hired CVE. The Privette doctrine would apply Workers’ Compensation exclusivity to Apeel as the hirer of the contractor who employed plaintiff assuming Apeel did not cause plaintiff’s injuries. But Allergan did not hire CVE. Allergan provides no authority for extending Privette to a party that is a stranger to both a plaintiff’s employment and the hiring of the contractor that employs plaintiff.

In its reply, Allergan argues that Privette protects a landlord or landowner. But nothing in Privette suggests that Worker’s Compensation exclusivity applies to a landlord or landowner that did not hire the contractor. Similarly, in Hooker v. Dep’t of Transportation, 27 Cal.4th 198, 213–14 (2002), the court addressed the application of Privette to the hirer, not a landlord who did not hire the contractor.

Workers’ compensation exclusivity is not a ground for summary adjudication in this instance.

b. Legal Duty: Allergan contends it had no legal duty to plaintiff. In any action based on negligence, “the elements of duty, breach of duty, causation and damages must be pleaded and proven.” Christensen v. Superior Court, 54 Cal.3d 868, 882 (1991). The existence of a legal duty to the plaintiff is also a necessary element of premises liability. Chee v. Amanda Goldt Property Management, 143 Cal.App.4th 1360, 1369 (2006).

Allergan bases its contention that it has no legal duty on its lack of control over the premises at the time of the incident. But there are triable issues of material fact regarding that control. John Matulich was the facilities manager with whom Allergan directly contracted to monitor the property from May 2017 until June 5, 2017. [SS #23] Matulich continued his prior duties as facilities manager for Allergan and was also tasked with the responsibility to assist Apeel with its move-in process to the property, including coordinating with contractors doing work on the property. [SS #24] He was working and being paid by Allergan on June 1, 2017. [SS #25]

“The existence of a legal duty is a question of law for the court. [Citation] ‘As this court has explained, ‘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.” John B. v. Superior Court, 38 Cal.4th 1177, 1188-1189 (2006). While the existence of a legal duty is a question of law for the court, the extent of Allergan’s exercise of control over the premises is an issue of fact.

The court finds that there are triable issues of material fact prohibiting the court from determining Allergan lacks a legal duty in this circumstance.

c. Causation: Allergan argues that, even if it had a legal duty, there is no causal connection between its conduct and plaintiff’s injuries. Allergan notes it had no role in the installation of the camera and the area was clearly marked as containing electrical equipment. Again, there are triable issues of material fact.

The area was marked as containing high-voltage electrical equipment but the busway itself had no such warning. The area was left open without supervision of an electrician. In its reply, Allergan says that there is no direct evidence of who opened the gate. But there is evidence of to whom Matulich entrusted the keys and there is a permissible inference that one of them, including Beyond Heating that was performing work in the area at the time. The court must “consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.” Binder v. Aetna Life Ins. Co., 75 Cal.App.4th 832, 838 (1999). “Summary judgment may not be granted where contradictory inferences may be drawn from the supporting declarations or affidavits.” Miller v. Bechtel Corp., 33 Cal.3d 868, 881 (1983); CCP § 473c(c).

The court finds a triable issue of material fact regarding whether Allergan’s conduct, through John Matulich, caused plaintiff’s injuries.

5. Order: For the foregoing reasons, the court denies defendant Allergan, Inc.’s Motion for Summary Judgment or Summary Adjudication in the Alternative.