Case Number: BC645912 Hearing Date: December 11, 2018 Dept: A

# 6. Anthony Guevara, et al. v. Kenmore, et al.

Case No.: BC645912

Matter on calendar for: motion for summary judgment or adjudication; voluntary settlement conference

Tentative ruling:

I. Background

This is a wrongful death action. Plaintiffs are the brother, mother, and father of 14-month old Dylan Guevara, who died from injuries sustained when boiling soup spilled onto him. The First Amended Complaint (“FAC”) alleges the following causes of action:

1) Strict products liability;

2) Breach of warranty;

3) Negligence against manufacturers, distributors, and sellers;

4) Negligence against gas company and inspectors

5) Premises liability;

6) Negligent infliction of emotional distress; and

7) Wrongful death;

Defendant The Fragoso Family Living Trust is the owner of the property where plaintiffs lived at the time of the incident. Only causes of action 5–7 are alleged against this defendant. It now moves for summary judgment, or in the alternative summary adjudication. Plaintiffs oppose.

For the reasons set forth below, the Court grants the motion in part and denies the motion in part.

II. Standard

Summary judgment and adjudication are burden shifting procedures. First, the defendant must meet its initial burden of showing that an element of a cause of action cannot be established or that there is a complete defense to the cause of action. (C.C.P., § 437c(p)(2).) Once this showing is met, the burden then shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or defense thereto.” (Ibid.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844–845; C.C.P., § 437c(p)(2).)

“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.” (C.C.P., § 437c(f)(1).)

III. Analysis

This dispute centers on how the soup was spilled onto Dylan Guevara. Defendant argues that Dylan Guevara reached up, grabbed the handle of the pot, and then spilled the soup. Plaintiffs argue he opened the oven and climbed onto the oven door, which caused the unsecured stove to tilt and spill the soup. Plaintiff Anayeli, Dylan’s mother, had stepped outside to return a plate to her sister-in-law; plaintiff Anthony Guevara, Dylan’s 5-year old brother, was watching television. It is undisputed that the mechanics of this incident were not witnessed but that the oven door was opened and spilled soup was present on the inner portion of the door.

A. Evidentiary objections

The Court “need rule only on those objections to evidence that it deems material to its disposition of the motion.” (C.C.P., § 437c(q).) Defendant’s objections to plaintiffs’ evidence, as cited to below, are overruled.

B. Summary judgment standard in tort cases

First, the Court must address the standard on summary judgment. Defendant argues that although the court does not weigh evidence or inferences as if it were the trier of fact, “it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 (emphasis in original).) Essentially, the argument is that if there are equally conflicting inferences, plaintiffs can show a triable issue of material fact only if plaintiffs show inferences that suggest wrongful conduct to be more likely than not the cause of injury. (Reply 7; Aguilar, supra, 25 Cal.4th 856–857.) However, Aguilar is a conspiracy antitrust case and its application has been limited to that area of the law: “The language [in Aguilar] concerning antitrust conspiracy evidence in equipoise does not hold that if inferences are in conflict in other contexts, summary judgment is now appropriate . . . . [Citation.]” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 881–882.) “If the evidence in tort cases such as this one is equally in conflict as to a material fact, summary judgment is not in order.” (Id. at 882; see also McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 fn. 14.).)

C. Premises liability and wrongful death

Although separated into two causes of action, both theories are derivative of negligence. In other words, this is a wrongful death cause of action based on a duty arising from premises liability. The elements of premises liability are: (1) defendant was the owner, occupant, or lessor of premises; (2) defendant was negligent in the use, maintenance, or management of the premises; and (3) the negligence was a cause of injury, damage, loss, or harm to plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Wrongful death requires the wrongful act or negligence to cause the death of another. (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 404 (citing C.C.P., § 377.60).) The elements of negligence are: (1) legal duty owed to plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

“All landowners, including landlords, must use reasonable care to protect people who come onto their property. [Citations.] For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) Here, defendant did not provide the stove with the property, but allegedly learned of the hazardous stove when defendant’s workers disconnected and reinstalled the stove twice. (Opp. Evid. Exh. 3 pg. 70.) Defendant argues that despite this, plaintiffs cannot establish causation; i.e. plaintiffs cannot show that the stove tilted. (Mtn. 1.)

Defendant provides the following evidence:

· Dylan was walking and able to reach the stove top. (Mtn. Evid. Exh. B, 56–57.)

· Anayeli left the house to return a dish to her sister-in-law. (Id. at 22–25.)

· When Anayeli left, both Dylan and Anthony were watching television. (Id. at 32–33.)

· Anayeli estimates that she was outside for two minutes when she heard Anthony yelling from inside “Mommy, Dylan got burnt.” (Ibid.)

· Anayeli tried to run inside through the front door but the doorknob was stuck, so she ran around and entered through the back door which let her through the kitchen. (Id. at 25–26.)

· Anayeli saw spilled chicken soup on the floor and the pot was tilted sideways. (Id. at 26, 27, and 59.)

· She found Anthony and Dylan in the bedroom. The skin on his right hand was falling off and he had “vapor” coming off him. (Id. at 40, 45, and 60.)

· Edwin, Dylan’s father, was at work. He was informed of the incident, went home, changed, did not look at the kitchen, and went to the hospital. He returned at 3:00 a.m. The next morning, he saw that the oven door was completely open. He cleaned up the soup on the floor and on the inside of the oven door. (Mtn. Evid. Exh. C., 38, 39, 41, 42, 106, 108.)

· Neither Anayeli nor Edwin had ever seen the stove tilted before or after the accident. (Mtn. Evid. Exh. B, 55, 56, 66; Exh. C, 43, 51, 57–58.)

This evidence creates the inference that Dylan reached up grabbed the pot and spilled the soup without the stove’s tipping. Defendant has met its burden of showing no triable issue of material fact and these causes of action. The burden now shifts to plaintiffs.

D. Negligent infliction of emotional distress (“NIED”)

Negligent infliction of emotional distress in also derivative of negligence. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796 fn.4.) Plaintiffs allege this cause of action as bystanders. Plaintiffs must prove they “(1) [are] closely related to the injury victim, (2) [were] present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffer[ed] serious emotional distress . . . .” (Thing v. La Chusa (1989) 48 Cal.3d 644, 657–658.) “The second Thing requirement–the plaintiff was a percipient witness to the traumatic incident and was contemporaneously aware the event was causing injury to the victim–does not require visual perception of an impact on the victim.” (Ra v. Superior Court (2007) 154 Cal.App.4th 142, 148–149.) “ ’A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative.’ [Citations.]” (Id. at 149.)

Defendant does not point to any evidence that establishes Anthony did not contemporaneously perceive the event. Summary adjudication on the NIED cause of action is denied as to Anthony.

The evidence suggests there is no triable issue as to Anayeli or Edwin contemporaneously perceiving the event; Edwin was at work and Anayeli learned of the incident from Anthony. The burden now shifts to plaintiff to show a triable issue of material fact on the NIED for Anayeli and Edwin.

E. Plaintiffs’ burden on premises liability and wrongful death

Plaintiffs submit evidence from two experts, Dr. Xu, Ph.D., who analyzed the mechanics of the incident, and Dr. Brones, M.D., a medical expert. Dr. Xu concludes that Dylan’s weight on the door caused the stove to tip forward and eventually spill the soup onto Dylan. (Opp. Evid. Exh. 1, ¶ 80–82.) Dr. Brones found Dylan’s burn injury pattern to be consistent with Dr. Xu’s opinion. (Opp. Evid. Exh. 2, ¶ 34.)

This creates an inference that Dylan’s injuries were the result of the stove’s tipping. There are two competing inferences, that the stove tipped or did not tip. As discussed above, this creates a triable issue of material fact. Summary adjudication on the premises liability and wrongful death causes of action is inappropriate.

F. Plaintiffs’ burden on negligent infliction of emotional distress

Plaintiffs do not argue or provide evidence of Edwin’s contemporaneously experiencing the incident. As to Anayeli, plaintiffs argue her NIED is derivative of the jammed door that delayed her reentry into the apartment. (Opp. 13.) The FAC fails to include any allegations connected to the door and defendant’s alleged negligence in failing to fix the door. On a motion for summary judgment the issues are framed by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663–1664.) “[S]ummary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]” (Id. at 1663.) Even if the NIED claim were based on the jammed door, Anayeli would not be able to state a NIED claim because she did not contemporaneously perceive the injury.

The motion for summary adjudication on the NIED claim is granted as to Anayeli and Edwin Guevara.

IV. Ruling

The motion for summary judgment is denied.

The motion for summary adjudication is denied as to the wrongful death and premises liability causes of action.

The motion for summary adjudication on the NIED cause of action is denied as against Anthony Guevara.

The motion for summary adjudication on the NIED cause of action is granted as against Edwin Guevara.

The motion for summary adjudication on the NIED cause of action is granted as against Anayeli Guevara.