Case Number: BC559232 Hearing Date: June 29, 2018 Dept: 4

MOVING PARTY: Defendant M.F. Salta Company, Inc.

RESPONDING PARTY: (1) Plaintiffs Maria Garcia, et al., (2) plaintiffs Lizandro S. Garcia, et al., and (3) plaintiff Wesco Insurance Company

Motion for Summary Judgment or, in the alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers.

Background

BC559232 (“Garcia I”)

On September 30, 2014, plaintiffs Maria Garcia, Mercy Garcia, Giovanni Garcia, William Garcia, and Gustavo Garcia filed a complaint against defendant M.F. Salta Company Inc. for negligence/wrongful death based on an incident on August 24, 2014, whereby plaintiffs’ decedent Lisandro Garcia attempted to operate a horizontal sliding gate on the premises at Boulevard Cadillac. The gate failed to stop at its designed stop limit and fell on Mr. Garcia, killing him.

On March 7, 2016, plaintiffs filed an amendment to the complaint, designating James A. Willingham, trustee of the 2005 Willingham Family Trust, as Doe 1.

On March 21, 2016, plaintiffs filed an amendment, designating James A. Willingham, trustee of the 2005 Willingham Family Trust, as Doe 11.

On June 30, 2016, Wesco Insurance Company filed a First Amended Complaint, as subrogee of Boulevard Automotive Group Inc.

On February 10, 2017, plaintiffs filed an amendment, designating Celly Services, Inc. as Doe 12.

On February 16, 2017, plaintiffs filed an amendment designating Celly Services Inc. as Doe 1.

On March 15, 2017, plaintiffs filed an amendment designating, Celly Services, Inc. as Doe 2.

On December 18, 2017, Wesco filed a Second Amended Complaint.

BC585017 (“Garcia II”)

On June 12, 2015, plaintiffs Lizandro S. Garcia and Delmy B. Garcia, ind. and as successors-in-interest on behalf of decedent Lisandro Garcia filed a complaint against M.F. Salta Company, Inc. for (1) wrongful death, (2) negligence, (3) negligence per se, and (4) premises liability.

BC600007

On November 3, 2015, plaintiff Wesco Insurance Company, as subrogee of Boulevard Automotive Group Inc. filed a subrogation complaint against James A. Willingham, trustee of the 2005 Willingham Family Trust, and M.F. Salta Company Inc. for negligence/premises liability.

On December 8, 2015, pursuant to stipulation and order, the three cases were consolidated.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Discussion

Defendant M.F. Salta Company, Inc. (“Salta”) requests that the court enter summary judgment in its favor and against (1) the operative complaint of plaintiffs Maria Garcia, et al. (“Garcia I”), (2) the operative complaint of Lizandro S. Garcia and Delmy B. Garcia (“Garcia II”), and (3) the operative complaint of Wesco Insurance Company, pursuant to CCP § 437c on the ground that there is no triable issue of material fact and Salta is therefore entitled to judgment as a matter of law.

A. Complaints

(1) Complaint – Garcia I

In the complaint in Garcia I, plaintiffs allege that at the time of the accident, plaintiffs’ decedent was working at and for Boulevard Cadillac at the premises owned and operated by M.F. Salta. Garcia I Complaint, 10-11. As plaintiffs’ decedent attempted to operate a horizontal sliding gate on the premises, the gate failed to stop at its designed stop limit and fell on plaintiffs’ decedent killing him. Id., 12. Plaintiffs’ decedent did not know that defendants had decided earlier to put off fixing the heavy gate despite knowing or having reason to know that the gate posed a danger of slipping off its tracks and landing on whoever was operating it. Id., 13. Alternatively, plaintiffs allege that defendant either negligently designed or manufactured the gate in question so that it failed and killed plaintiffs’ decedent. Id., 14. Defendants knew, or had reason to know, that the manner in which they left the gate presented an incredibly dangerous condition on their part. Defendants had knowledge of the defective condition of the gate and knew that persons such as plaintiffs’ decedent would be exposed to life threatening danger if they moved the gate. Id., 15. Defendants exclusively controlled the design, manufacture, installation, and maintenance of the gate and knew how it was operated. Despite this, and despite having ample opportunity to fix said gate before the accident that caused plaintiffs’ decedent’s death, they failed in their duties to their business invitees. Id., 16.

Under the cause of action for negligence, plaintiffs allege that in failing to properly design, manufacture, maintain, secure and/or install the gate, defendants breached any and all duties to everyone around them. Id., 19. Defendants learned of the dangerousness of the condition they caused and ignored it. Despite this, defendants took no action thereby allowing the gate to remain in its unstable position. Id., 20. The gate was at all times under the exclusive control of defendants. Id., 21.

(2) Complaint – Garcia II

In the complaint in Garcia II, plaintiffs allege that defendants knew, or should have known, that the security gate at the premises posed a danger of slipping off its tracks and falling on any person operating the security gate. Defendants knew, or should have known, that leaving the security gate in the manner in which they left it that the gate could fall on top of its users and could expose decedent to accidental crush dangers which would result in seriously bodily harm and/or death, yet failed to take appropriate actions to avoid such an outcome. Garcia II, 22.

Under the 1st cause of action for wrongful death, plaintiffs further allege that before decedent was crushed to death by the gate, defendants were advised and informed of the condition of the security gate. Defendants were further advised that the security gate had a defective and/or broken stopping mechanism; aged, deteriorating, cracking, and crumbling wheels; and rusting joints. Defendants failed to take reasonable steps to make sure the gate would not fall off its track and on to anyone operating the gate. Id., 23. Defendants breached their duty of care to plaintiffs and decedent by failing to take appropriate action to ensure decedent’s safety. Further, defendants negligently failed to maintain, design, and/or manufacture the security gate. Defendants negligently and knowingly allowed for a dangerous condition to exist at the premises. Moreover, defendants acted negligently in the following ways:

– By allowing the security gate to have a defective or broken stopping mechanism;

– By allowing the gate to run on aged, deteriorating, cracking, crumbling wheels; and

– By allowing the gate to run with rusting joints. Id., 24.

Under the 2nd cause of action for negligence, plaintiffs add that defendants failed to warn or take the appropriate safety measures to secure the security gate as to prevent accidental falls. Id., 32.

Under the 3rd cause of action for negligence per se, plaintiffs allege that defendants committed one or more violations of Title 8 of the California Code of Regulations, including, but not limited to section 3324 and other official rules, regulations, or guidelines applicable to defendants’ conduct. Id., 36. The injuries and damages to plaintiffs and decedent were a direct and legal result of the violations of the above statutes, regulations, standards, and guidelines by defendants. Id., 37.

Under the 4th cause of action for premises liability/negligence/dangerous condition, plaintiffs allege that the premises were owned and controlled by defendants M.F. Salta and Does 1 through 100. Id, 41. Defendants negligently, carelessly, and recklessly owned and controlled the premises. Id., 42. Defendants negligently and carelessly failed to warn about the danger of the security gate at the premises. Said negligence and carelessness was furthered when defendants failed to fix the defective or broken stopping mechanism; deteriorating, cracking, and crumbling wheels; and rusting joints on the security gate, which fell on decedent. Defendants failed to correct said condition or take the necessary steps to properly warn users, such as decedent, of the danger of the security gate at the premises. Id., 43. Defendants had notice of the defective or broken stopping mechanism; aged, deteriorating, cracking, and crumbling wheels; and rusting joints on the security gate and had sufficient control of the premises to take reasonable safety measures to prevent fatal falls of the gate. Id., 44. Defendants’ negligence was a substantial factor in causing decedent’s death. Id., 45.

(3) Second Amended Complaint – Wesco

In the Wesco 2nd Amended Complaint, under the cause of action for negligence and premises liability, plaintiff alleges that on August 24, 2014, the decedent was trapped underneath a large 45-foot steel gate located at 2850 Cherry Avenue, City of Signal Hill. The decedent, while attempting to open the gate, which was obviously aged, deteriorating and crumbling, was crushed when the gate fell off its track, falling on the decedent who then and there sustained various injuries, ultimately causing the decedent’s death. Defendants owned, leased, occupied, and/or controlled the premises at the time of the injury sustained by the decedent. Defendants were negligent in the use and/or maintenance of the premises by failing to provide adequate safeguards, repair, and maintenance to the subject gate in order to avoid the types of injuries suffered by the decedent. Defendants were negligent in the design and manufacture of the gate in question. Defendants’ negligence was a substantial factor in causing harm to the decedent. Wesco SAC, 11.

B. Analysis

(1) Relevant Facts

The subject property was owned by Salta and James Willingham, Trustee of the 2005 Willingham Family Trust, at the time the incident occurred. UMF 3. The subject gate was designed, manufactured and installed in 1990 or 1991 when the property was used for R.O. Gould Chrysler/Plymouth. UMF 2.

Salta first leased the property to Boulevard Automotive Group (“Boulevard”) on February 1, 1994. On October 1, 2010, Salta and Boulevard entered into a new lease. UMF 4. Boulevard subsequently subleased the property to a separate company, Boulevard Cadillac. Around the time the 2010 lease was executed, Boulevard informed Salta that it planned to remodel the subject property. UMF 7. As a result of the anticipated remodel, Salta asserts that it delayed the inspection of the premises until April 2012, after the remodel was completed. UMF 9. Salta performed the inspection with Ron Charron of Boulevard and looked at the areas that had been remodeled and the general condition of the subject property. UMF 10. Salta claims that it did not observe safety issues with the gate, did not receive any reports of issues with the gate nor have actual or constructive knowledge of such issues, at any time prior to the incident. UMF 11-14.

(2) Breach of Duty

As noted above, common in each cause of action for each complaint, is the element of breach of duty. Salta argues that it did not breach its duty. Salta asserts that, as a commercial lessor, its only duty was to perform a reasonable inspection at the time that Boulevard’s lease was renewed and repair any issues at that time. As Salta found no issues during inspection, they did not breach a duty to decedent. Accordingly, Salta asserts it is entitled to summary judgment as to all three complaints.

A commercial lessor “has a duty upon execution of a lease to ‘inspect the premises to make the premises reasonably safe from dangerous conditions.’” Resolution Trust Corp. v. Rossmor Corp. (1995) 34 Cal.App.4th 93, 102-3, quoting Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781. The duty to inspect burdens the landlord with “only with those matters which would have been disclosed by a reasonable inspection.” Id. at 103, internal quotations omitted. Whether an inspection is “reasonable” is dependent on the circumstances. “The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” Ibid. Further, “[t]he burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection.” Id. at 103.

Here, Boulevard and Salta executed a new lease on October 1, 2010. In March or April 2012, Robert C. Johnson of Salta “attended an inspection of the property with Ron Charron from [Boulevard].” Decl. Johnson ¶ 14. Johnson and Charron “looked at the areas that had been remodeled and the general condition of the subject property.” Id. Neither Johnson nor Charron observed “any safety issues with the property or the subject gate.” Id. Salta provides no other details of the subject inspection.

As noted above, whether an inspection is “reasonable” is a question of fact, dependent on the specific circumstances. Notably, Salta proffers records of former inspections dating annually from 2002 to 2008. Decl. Johnson, Exh. J. These records indicate that the inspections were completed by a “Property Inspector,” who noted what repairs needed to be made. Id. Salta has not provided the court with any records of inspections after 2008, including the relevant 2012 inspection. The lack of record alone is not enough to deny the motion for summary judgment. However, Salta provides only general facts in one declaration. The court cannot determine if the inspection is reasonable from a declaration that states that the Vice-President of Salta looked at the “general condition of the subject property.” Decl. Johnson ¶ 14.

Further, all plaintiffs dispute that the inspection was reasonable. Plaintiffs note that, in deposition, Mr. Johnson acknowledged that he was not an expert on safety issues. See Garcia II Opp. Decl. Steelhead Exh. 1, p.59. He has no formal training relating to safety inspections of commercial properties. Id.

The court finds that Salta has failed to meet its burden to establish that no triable issue of fact exists as to breach of duty. Further, even if Salta had met its burden, the plaintiffs have in turn met theirs. The court notes that this decision is based on Salta’s assertion that it did not breach its duty because it inspected the premises. The court declines to discuss or make a determination on other issues raised by plaintiffs, such as prior knowledge, etc.

Evidentiary Objections

As to Garcia II’s objections to Salta’s “material facts,” all objections are OVERRULED.

As to Wesco’s objections to Salta’s evidence, all objections are OVERRULED.

The motion for summary judgment is DENIED.

Plaintiffs in Garcia I are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 29, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court