On 04/09/2018 GARY JIORAS filed a Personal Injury - Other Product Liability lawsuit against DEVELOPMENT SUPPORT SERVICES INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, LAURA A. MATZ, CURTIS A. KIN and JON R. TAKASUGI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
MARC D. GROSS
LAURA A. MATZ
CURTIS A. KIN
JON R. TAKASUGI
COSCO HOME & OFFICE PRODUCTS
DOES 1 TO 25
DEVELOPMENT SUPPORT SERVICES INC
COSCO HOME & OFFICE PRODUCTS
ALL ELECTRIC CONSTRUCTION INC.
Attorney at Downtown LA Law
3460 Wilshire Boulevard Suite 950
Los Angeles, CA 90010
YAGHOUBTIL FARID ESQ.
ROFAEL JOHN R. ESQ.
THE HAHN LEGAL GROUP
MA JOYCE HAHN ESQ.
BARRON SAMANTHA LEIGH ESQ.
O'HAGAN MEYER LLP
11/21/2019: Notice - NOTICE NOTICE OF UNAVAILABILITY
11/4/2019: RETURNED MAIL
11/4/2019: Motion for Summary Judgment
11/4/2019: Separate Statement
8/16/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)
9/13/2018: Legacy Document - LEGACY DOCUMENT TYPE: SUMMONS ISSUED
5/29/2019: Request for Judicial Notice
4/30/2019: Declaration - DECLARATION OF MICHAEL SMITH IN SUPPORT OF DEFENDANTS DEVELOPMENT SUPPORT SERVICES, INC. AND MICHAEL ANDRADES MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF GARY JIORAS
3/8/2019: Reply - REPLY IN SUPPORT OF DEVELOPMENT SUPPORT SERVICES, INC.S MOTION TO COMPEL ALL ELECTRIC CONSTRUCTION, INC.S FURTHER RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS, SET ONE AND REQUEST FOR MON
3/8/2019: Reply - REPLY IN SUPPORT OF DEVELOPMENT SUPPORT SERVICES, INC.S MOTION TO COMPEL ALL ELECTRIC CONSTRUCTION, INC.S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE AND REQUEST FOR MONETARY SANCTION
2/19/2019: Notice of Change of Address or Other Contact Information
2/1/2019: Certificate of Mailing for - Certificate of Mailing for [Minute Order (Hearing on Motion of Plaintiff, Gary Jioras, For Order Compel...)]
2/6/2019: Notice - Notice notice of ruling on plaintiff's motion to compel the attendance and further testimony at deposition of Miguel Andrade
1/18/2019: Opposition - Opposition TO PLAINTIFFS SEPARATE STATEMENT OF DEPOSITION QUESTIONS IN DISPUTE
1/28/2019: Minute Order - Minute Order (Non-Appearance Case Review)
12/27/2018: Notice - Notice transfer to independent calendar court
11/8/2018: Separate Statement
4/9/2018: NOTICE OF CLERICAL CORRECTION
Hearing01/27/2020 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Jury TrialRead MoreRead Less
Hearing01/16/2020 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status ConferenceRead MoreRead Less
Hearing12/27/2019 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion for Summary JudgmentRead MoreRead Less
Hearing12/20/2019 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Ex Parte Application (for an order striking defendant all electric construction inc'. motion for summary judgment as untimely) - Held - Motion DeniedRead MoreRead Less
DocketMinute Order ( (Hearing on Ex Parte Application for an order striking defenda...)); Filed by ClerkRead MoreRead Less
DocketOpposition (to Development Support Services Inc.'s Ex Parte Application to Strike All Electric Construction, Inc.'s MSJ); Filed by All Electric Construction, Inc. (Cross-Defendant)Read MoreRead Less
DocketEx Parte Application (FOR AN ORDER STRIKING DEFENDANT ALL ELECTRIC CONSTRUCTION, INC.?S MOTION FOR SUMMARY JUDGMENT AS UNTIMELY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ADRIENNE R. HAHN; DECLARATION OF BRANDI ROSALES); Filed by Development Support Services, Inc (Cross-Complainant)Read MoreRead Less
DocketNotice (Notice of Unavailability); Filed by All Electric Construction, Inc. (Cross-Defendant)Read MoreRead Less
DocketRETURNED MAILRead MoreRead Less
DocketCross-Complaint; Filed by Development Support Services, Inc (Defendant)Read MoreRead Less
DocketPartial Dismissal (w/o Prejudice); Filed by Plaintiff/PetitionerRead MoreRead Less
DocketREQUEST FOR DISMISSALRead MoreRead Less
DocketNOTICE OF CLERICAL CORRECTIONRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketNotice (of Clerical Correction)Read MoreRead Less
DocketSummons (on Complaint)Read MoreRead Less
DocketNOTICE OF CLERICAL CORRECTIONRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. STRICT PRODUCTS LIABILITYRead MoreRead Less
DocketComplaint; Filed by Gary Jioras (Plaintiff)Read MoreRead Less
Case Number: BC701339 Hearing Date: December 27, 2019 Dept: E
MOTION FOR SUMMARY JUDGMENT
[CCP § 437c; CRC 3.1350 et seq.]
Case: Jioras v. Development Support Services, Inc., et al. (BC 701339)
Cross-Defendant All Electric Construction, Inc.’s (“AEC”) request for judicial notice is GRANTED. (Evid. Code §452(d).)
Cross-Defendants Development Support Services, Inc.’s and Michael Andrade’s (collectively “DSS”) evidentiary objections are OVERRULED.
DSS contends AEC’s Motion for Summary Judgment should be denied as untimely because it was was filed fewer than 75 days before the hearing date. The summary judgment statute, however, only requires at least 75 days notice before the hearing. Unlike other motions governed by CCP § 1005(b), CCP § 437c is silent as to the date of filing for summary judgment. Here, the Motion for Summary Judgment was personally served on 10/4/19, which was 84 days before the 12/27/19 hearing date. The motion was therefore timely noticed, and the Court rules on the merits of the motion.
AEC contends DSS is not entitled to any indemnification because the incident alleged in the Complaint did not arise out of AEC’s performance of work under the Subcontract Agreement. The Subcontract Agreement between AEC and DSS provides, in relevant part: “6.1A Subcontractor [AEC] shall protect, hold free and harmless, defend and indemnify Contractor [DSS] and Owner (including its agents and employees) for all liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, (including reasonable attorney fees) resulting from injury or death sustained by any person (including Subcontractors employees), or damage to property of any kind, which injury, death or damage arises out of, or is in any way connected with the performance of work under this contract. Subcontractor's aforesaid indemnity and save harmless agreement shall apply to any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of the Contractor, Owner, his agents, servants or independent contractors (other than Subcontractor) who are directly responsible to Contractor or Owner.” [UMF No. 4 and evidence cited, emphasis added.]
Based on paragraph 6.1A of the Subcontract Agreement, if plaintiff Gary Jioras’s injury arose out of AEC’s performance of work under the contract, then AEC may be fully liable for DSS’s expenses, including attorney fees incurred in the defense against plaintiff’s action. It is undisputed that plaintiff was an employee of AEC. [UMF No. 6.] It is also undisputed that the subject chair was not provided by AEC, that plaintiff was not required to use the chair to perform electrical work, and that the chair was not intended for AEC’s use while at the property. [UMF Nos. 11, 13-18 and evidence cited.] Because plaintiff was not required to use the chair from which he fell, AEC contends that plaintiff’s injury did not arise from AEC’s performance on the contract.
In support of its view of the Subcontract Agreement, AEC relies on Acceptance Ins. Co. v. Syufy Enterprises (1999) 69 Cal.App.4th 321, 324 (“Syufy”). In Syufy, the building owner, Syufy, contracted with C & C to update the lighting and temperature controls in a theater. (Ibid.) C & C requested its commercial general liability insurer, AIC, to provide additional insured coverage to Syufy. (Ibid.) AIC’s endorsement stated that Syufy was covered, “but only with respect to liability arising out of ‘your work’ for that insured by or for you.” (Ibid.) Under the policy, “you” and “your” referred to C & C. (Ibid.) “Your work” was defined as “[w]ork or operations performed by you or on your behalf.” (Ibid.) In Syufy, C & C employee, Kurt Weber, was working on the roof of Syufy’s theater. (Ibid.) Weber could access the roof only through a roof hatch. (Ibid.) Weber decided to take a personal break to take his wife to the airport. (Ibid.) As Weber was climbing down the hatch, the hatch fell and severed one of his fingers. (Ibid.) In connection with Weber’s suit against Syufy, AIC contended that there was no coverage under the additional insured endorsement because Weber was leaving to take his wife to the airport and because neither he nor C & C performed work on the hatch. (Id. at pp. 324-25.) The Court of Appeal held that the term “arising out of” or “arising from” “does not import any particular standard of causation or theory of liability into an insurance policy,” but rather “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” (Id. at p. 328.) Based on this principle, the Court of Appeal held that Weber’s injury “arose out of” his work on Syufy’s roof because he could not have been on the roof without passing through the hatch. (Ibid.)
Citing Syufy, AEC thus argues that, because plaintiff Jioras was not required to use the chair, plaintiff’s injury did not arise from his work for AEC. AEC misreads the holding of Syufy. The Court of Appeal in Syufy found at least an incidental relationship between Weber’s injury and his work on the roof because Weber was required to use the hatch to access the roof. But this is not the only situation where a “minimal causal connection” can be found between the work and the injury. Here, a reasonable juror could find that plaintiff would not have incurred the injury had he not been working on the project on behalf of AEC. DSS presents declarations evidencing that AEC had discretion on how it performed work under the Subcontract Agreement. [DSS SSUF No. 2 and evidence cited.] In addition, this Court already found that plaintiff was injured “while using a construction roller to gauge where his next run of wires were going.” [DSS SSUF No. 9; DSS Ex. 8, p. 5.] Based on this evidence, a reasonable juror could find that AEC was responsible for overseeing plaintiff’s work and that AEC is contractually obligated under the Subcontract Agreement to fully indemnify DSS for its expenses, including attorney fees, in defense against plaintiff’s suit.
In this regard, Fireman’s Fund Ins. Companies v. Atlantic Richfield Co. (2001) 94 Cal.App.4th 842 (“FFIC”) is instructive. In FFIC, Crider was under contract to perform maintenance at ARCO’s plant. (FFIC, 94 Cal.App.4th at p. 845.) Crider’s employee, Sylvis Riddle, was cleaning out a building at the plant. (Ibid.) While carrying a 40-pound pump motor, Riddle stepped off a platform onto a wooden step maintained by ARCO. (Ibid.) The step collapsed, causing injury to Riddle’s back. (Ibid.) Riddle sued ARCO. ARCO was an additional insured under Crider’s commercial general liability insurance policy. (Id. at p. 846.) The policy covered “those sums that the insured [ARCO] becomes legally obligated to pay as damages because of ‘bodily injury’ . . . to which this insurance applies” “but only with respect to liability arising out of YOUR WORK [Crider's work] for that insured [ARCO] by or for you.” (Ibid.) The Court of Appeal determined that the injury arose from Crider’s work for ARCO because Riddle was cleaning out a building at the ARCO plant and performing a work-related task at the time of the accident. (Id. at p. 849.) Similarly, plaintiff here was at the project site and performing work for AEC. Plaintiff’s injury is arguably within the scope of paragraph 6.1A of the Subcontract Agreement.
AEC also cites Labor Code § 3864 as a reason why DSS’s causes of action for Equitable Indemnity, Equitable Contribution, and Declaratory Relief fail. (Notice of Mot. at p. 2.) Section 3864 states: “If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.” While AEC may not be liable to DSS on these causes of action due to Labor Code § 3864 (or, for that matter, because DSS has been found not liable to plaintiff Jioras by this Court), AEC has only moved for summary judgment, and not for summary adjudication as to these causes of action. Accordingly. AEC’s reliance on § 3864 is not helpful on this motion. (See Gonzales v. Sup. Ct. (1987) 189 Cal.App.3d 1542, 1545-46 [“The language in Code of Civil Procedure section 437c subdivision (f) makes it clear that a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought”]; Cal. Rules of Court, rule 3.1350(b) [“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts”].)
In summary, notwithstanding AEC’s focus on plaintiff’s use of the chair, plaintiff incurred the subject injury while working for AEC and sought to recover for the injury against DSS. DSS incurred attorney fees in defending itself against plaintiff’s claim. A triable issue exists as to whether plaintiff’s injury resulting from his fall from the subject chair while working on the jobsite is within the scope of the Subcontractor Agreement. Accordingly, the Motion for Summary Judgment is DENIED
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