This case was last updated from Los Angeles County Superior Courts on 01/21/2020 at 19:58:40 (UTC).

HAROLD FIGUEROA ET AL VS AT&T CORPORATION ET AL

Case Summary

On 04/12/2018 HAROLD FIGUEROA filed a Personal Injury - Other Personal Injury lawsuit against AT T CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL S. MURPHY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1989

  • Filing Date:

    04/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL S. MURPHY

 

Party Details

Plaintiffs and Petitioners

FIGUEROA HAROLD INDIVIDUALLY AND ON

FIGUEROA HAROLD

FIGUEROA MARCOS

LOPEZ ANA INDIVIDUALLY AND ON BEHALF OF

LOPEZ ANA

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

ALL ACCESS EQUIPMENT RENTALS INC.

AT&T MOBILITY WIRELESS OPERATIONS

RBR PROPERTIES INC.

AT&T CORPORATION

DOES 1-100

VINCULUMS SERVICES LLC DOE1

NEW CINGULAR WIRELESS PCS LLC DOE 3

AMERICAN TOWER DELAWARE CORPORATION

GUERRERO ROBERTO

JLG EQUIPMENT SERVICES INC. DOE 2

CEJA JORGE

LUPERCIO JOEL

AT&T MOBILITY WIRELESS OPERATIONS HOLDINGS INC.

JLG INDUSTRIES INC. A PENNSYLVANIA CORPORATION

JLG INDUSTRIES INC

Plaintiff and Guardian Ad Litem

FIGUEROA HAROLD

17 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SANDOVAL ABRAHAM ESQ.

Defendant, Cross Plaintiff and Cross Defendant Attorneys

GARBER MARC HOWARD ESQ.

O'MEARA JOHN VINCENT ESQ.

CAMPBELL WARREN B

LUCCA PETER JOSEPH JR

KREDITOR EOIN LYLE

NATHAN CASEY BENJAMIN

DELIS JOHN ALLEN ESQ.

CALEO PAUL DAMIEN ESQ.

CAMERON DUSTIN WILLIAM

LASKEY H. BROOK

Defendant and Cross Defendant Attorneys

NATHAN CASEY BENJAMIN

CALEO PAUL DAMIEN ESQ.

LASKEY H. BROOK

 

Court Documents

Reply - REPLY TO OPPOSITION TO ATT DEFENDANTS MOTION FOR SUMMARY JUDGMENT

12/6/2019: Reply - REPLY TO OPPOSITION TO ATT DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Order - ORDER RE PETITION TO APPROVE MINOR'S COMPROMISE

11/20/2019: Order - ORDER RE PETITION TO APPROVE MINOR'S COMPROMISE

Notice - NOTICE OF INFORMAL DISCOVERY CONFERENCE RE: DEFENDANT JLG INDUSTRIES, INC.

11/25/2019: Notice - NOTICE OF INFORMAL DISCOVERY CONFERENCE RE: DEFENDANT JLG INDUSTRIES, INC.

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO CONTINUE TRIAL, FINAL STATUS CONFERENCE, AND RELATED DATES; [PROPOSED] ORDER

11/5/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO CONTINUE TRIAL, FINAL STATUS CONFERENCE, AND RELATED DATES; [PROPOSED] ORDER

Declaration - DECLARATION OF KENNETH NEMIRE, PH.D., CPE, IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT JLG'S MOTION FOR SUMMARY JUDGMENT

11/13/2019: Declaration - DECLARATION OF KENNETH NEMIRE, PH.D., CPE, IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT JLG'S MOTION FOR SUMMARY JUDGMENT

Objection - OBJECTION EVIDENTIARY OBJECTIONS TO EVIDENCE OF JLG INDUSTRIES INC.

11/13/2019: Objection - OBJECTION EVIDENTIARY OBJECTIONS TO EVIDENCE OF JLG INDUSTRIES INC.

Answer - ANSWER OF CROSS-DEF ALL ACCESS EQUIPMENT RENTALS, INC. TO CROSS-COMPLAINT OF AT&T CORPORATION

8/7/2019: Answer - ANSWER OF CROSS-DEF ALL ACCESS EQUIPMENT RENTALS, INC. TO CROSS-COMPLAINT OF AT&T CORPORATION

Cross-Complaint

9/11/2019: Cross-Complaint

Summons - SUMMONS ON CROSS COMPLAINT

9/11/2019: Summons - SUMMONS ON CROSS COMPLAINT

DEFENDANT ALL ACCESS EQUIPMENT RENTALS INC. NOTICE OF DEMURRER AND DEMURRER;AND ETC.

7/9/2018: DEFENDANT ALL ACCESS EQUIPMENT RENTALS INC. NOTICE OF DEMURRER AND DEMURRER;AND ETC.

Motion to Strike (not initial pleading) - Motion to Strike Portions of the First Amended Complaint

10/17/2018: Motion to Strike (not initial pleading) - Motion to Strike Portions of the First Amended Complaint

Request for Entry of Default / Judgment

10/23/2018: Request for Entry of Default / Judgment

Notice of Case Reassignment/Vacate Hearings

11/13/2018: Notice of Case Reassignment/Vacate Hearings

Application - Application for admission

11/15/2018: Application - Application for admission

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading) Portions of Plaintiff's First Amended Complaint

12/17/2018: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading) Portions of Plaintiff's First Amended Complaint

Opposition - Opposition to Roberto Guerrero and Jorge Ceja's Motion to Strike

1/2/2019: Opposition - Opposition to Roberto Guerrero and Jorge Ceja's Motion to Strike

Notice of Ruling

1/18/2019: Notice of Ruling

Answer - ANSWER TO CROSS-COMPLAINT

4/29/2019: Answer - ANSWER TO CROSS-COMPLAINT

279 More Documents Available

 

Docket Entries

  • 06/02/2020
  • Hearing06/02/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

    Read MoreRead Less
  • 05/21/2020
  • Hearing05/21/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

    Read MoreRead Less
  • 02/24/2020
  • Hearing02/24/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

    Read MoreRead Less
  • 02/24/2020
  • Hearing02/24/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

    Read MoreRead Less
  • 02/05/2020
  • Hearing02/05/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel deposition

    Read MoreRead Less
  • 01/14/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Jury Trial - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 01/10/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Informal Discovery Conference (IDC) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 01/08/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Court

    Read MoreRead Less
  • 01/07/2020
  • DocketNotice and Acknowledgment of Receipt; Filed by Harold Figueroa (Plaintiff); Marcos Figueroa (Plaintiff); Ana Lopez (Plaintiff)

    Read MoreRead Less
  • 01/07/2020
  • DocketNotice (of Continuance of Hearing on Vinculums Defendants' Motion for Summary Judgment); Filed by Harold Figueroa (Plaintiff); Marcos Figueroa (Plaintiff); Ana Lopez (Plaintiff)

    Read MoreRead Less
379 More Docket Entries
  • 05/04/2018
  • DocketAMENDMENT TO COMPLAINT

    Read MoreRead Less
  • 04/30/2018
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 04/30/2018
  • DocketProof-Service/Summons; Filed by Harold Figueroa, individually and on behalf of the Estate of Juan Diego Figueroa (Plaintiff)

    Read MoreRead Less
  • 04/26/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

    Read MoreRead Less
  • 04/26/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 04/26/2018
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

    Read MoreRead Less
  • 04/12/2018
  • DocketCOMPLAINT FOR: (1) STRICT PRODUCT LIABILITY-FAILURE TO WARN; ETC

    Read MoreRead Less
  • 04/12/2018
  • DocketAFFIDAVIT OF HAROLD FIGUEROA AS THE DECEDENT'S SUCCESSOR IN INTEREST PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE

    Read MoreRead Less
  • 04/12/2018
  • DocketComplaint; Filed by Harold Figueroa, individually and on behalf of the Estate of Juan Diego Figueroa (Plaintiff); Marcos Figueroa, by and through his guardian ad litem Harold Figueroa (Plaintiff); Ana Lopez, individually and on behalf of the Estate of Juan Diego Figueroa (Pl

    Read MoreRead Less
  • 04/12/2018
  • DocketAFFIDAVIT OF HAROLD FIGUEROA AS THE DECEDENT'S SUCCESSOR IN INTEREST PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE

    Read MoreRead Less

Tentative Rulings

Case Number: BC701989    Hearing Date: February 24, 2020    Dept: 32

HAROLD FIGUEROA, et. al.

Plaintiffs,

v.

AT&T CORPORATION, et. al.

Defendants.

Case No.: BC701989

Hearing Date: February 24, 2020

[TENTATIVE] order RE:

vinculum defendants’ Motion for Summary judgment

BACKGROUND

A. Complaint

This is a personal injury / wrongful death action filed by Plaintiffs Harold Figueroa (“Harold”) individually and on behalf of the Estate of Juan Diego Figueroa (“Estate”), Ana Lopez (“Ana”) individually and on behalf of the Estate, and Marcos Figueroa (“Marcos”) (collectively, “Plaintiffs”) against Defendants AT&T Corporation (“AT&T”); AT&T Mobility Wireless Operations Holdings Inc. (“AT&T Wireless”); All Access Equipment Rentals, Inc. (“All Access”); RBR Properties, Inc. (“RBR”); Vinculums Services, LLC (“Vinculums”); New Cingular Wireless PCS LLC (“Cingular”); JLG Industries, Inc (“JLG”); Joel Lupercio (“Lupercio”); Jorge Ceja (“Ceja”); Roberto Guerrero (“Guerrero”) (collectively, “Defendants”).

The operative pleading is the First Amended Complaint (“FAC”) filed on September 6, 2018. The FAC asserts causes of action for (1) strict product liability – failure to warn, (2) negligence – product liability, (3) negligent entrustment, (4) negligent hiring and retention, (5) premises liability, (6) negligent provision of required safeguards, (7) negligence – peculiar risk of harm, (8) wrongful death, and (9) negligent infliction of emotional distress. The FAC alleges in pertinent part as follows.

All Access and JLG manufacture and supply telescopic boom lifts. On January 30, 2018, AT&T, AT&T Wireless, Cingular, and Vinculums (collectively, “Telecommunications Companies”) left one of these boom lifts on real property located at 315 E. 87th Place, Los Angeles, CA 90003 (“Property”). Employees of the Telecommunications Companies had been using the boom lift to conduct maintenance on a cellphone transmission tower. The employees provided keys to the boom lift to Juan, a 22-year-old, and allowed Juan on various occasions to operate the boom lift despite Juan lacking qualifications to do so.

On the afternoon of January 30, 2018, Juan and his brother Marcos used the telescopic boom lift to trim an overgrown tree located at the Property. As Juan lowered the lift, he made contact with a high-voltage powerline, causing Juan to catch on fire and perish.

B. Cross-Complaints

On July 29, 2019, AT&T, AT&T Wireless, Vinculums, Cingular, Lupercio, Guerrero, and Ceja filed a Cross-Complaint against All Access and JLG for equitable indemnity, comparative indemnity, and declaratory relief.

On September 11, 2019, JLG filed a Cross-Complaint against the AT&T Defendants for indemnification, contribution, and declaratory relief.

On September 18, 2019, RBR filed a Cross-Complaint against the Telecommunications Companies for express contractual indemnity, equitable indemnity, breach of contract, contribution, and declaratory relief.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

DISCUSSION[1]

Vinculums, Guerrero, Lupercio, and Ceja (collectively, “Vinculums Defendants”) move for summary judgment on the FAC.

The FAC asserts seven negligence-based causes of action against the Vinculums Defendants (1) negligent entrustment, (2) negligent hiring and retention, (3) premises liability, (4) negligent provision of required safeguards, (5) negligence – peculiar risk of harm, (6) wrongful death, and (7) negligent infliction of emotional distress.[2]

Vinculums Defendants claim that these negligence claims fail because they did not owe Plaintiffs a duty of care, did not breach any duty, of care and any alleged breach did not cause Plaintiffs to suffer injury.

A. Existence of Duty

“Duty is a question of law for the court.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) “California law establishes the general duty of each person to exercise in his or her activities, reasonable care for the safety of others.” (Id. at 768 (citing Civ. Code § 1714(a).) Civil Code section 1714(a) provides in pertinent part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

“In the absence of a statutory provision, establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ ” (Cabral, supra, 51 Cal.4th at 770.) In determining whether policy considerations weigh in favor of such an exception, the most important factors (“Rowland factors”) are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143.) “Because Civil Code section 1714 establishes a general duty to exercise ordinary care in one’s activities, … [courts] rely on these factors not to determine ‘whether a new duty should be created, but whether an exception to Civil Code section 1714 … should be created.’ ” (Ibid.)

“Because a judicial decision on the issue of duty entails line-drawing based on policy considerations, ‘the Rowland factors are evaluated at a relatively broad level of factual generality.’ ” (Kesner, supra, 1 Cal.5th at 1143.) The Court must ask “not whether [the Rowland factors] support an exception to the general duty of reasonable care on the facts of the particular case before [the Court], but whether carving out an entire category of cases from that general duty rule is justified by clear consideration of policy.” (Id. at 1143-44.) By doing so, the Court “preserves the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make.” (Id. at 1144.) Hence, court-crafted exceptions to the duty rule are appropriate only ‘when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.’ ” (Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136, 143.)

Vinculums Defendants’ argument that it owed Plaintiffs no duty is not clearly articulated. Vinculums Defendants do not discuss the Rowland factors or advocate for an exception to the general duty to exercise ordinary care. Vinculums Defendants claim generally that “[t]here is no evidence whatsoever that Vinculums or its employees had anything to do with the Incident. The evidence clearly is that all work performed on the Premises had been completed, and the Boom Lift had been released back to its owner to pick it up.” (Mot. at 6.) The Court disagrees.

By their own evidence, Vinculums Defendants acknowledge that (1) they rented the subject boom lift (Separate Statement (“SS”) 14), (2) their work on the Property involved the subject boom lift (SS 13), (3) the evening before the incident, Ceja parked the boom lift on the street outside the Property for pick-up (SS 30), and (4) Vinculum Defendants left the key to the boom lift on top of the gas tank (SS 31). Plaintiffs submit further evidence showing that Vinculums Defendants, at least on one occasion, instructed Juan to move the boom lift. (Rodriguez Depo. pp. 79-80.) Vinculums Defendants therefore cannot reasonably claim they had nothing to do with the incident. Their use of the subject boom lift on the Property and abandonment of the keys on top of the gas tank gave Juan easy access to the boom lift on the day of the incident. Under the circumstances, Vinculums Defendants have failed to persuade the Court to craft an exception to the general duty to exercise ordinary care.

In reply, Vinculums Defendants cite to one Rowland factor — foreseeability. Vinculum Defendants claim that Plaintiffs’ harm was not foreseeable under the circumstances. This argument is unpersuasive. It is reasonably foreseeable that leaving the keys to a boom lift on the boom lift could result in a third party operating the boom lift without permission and suffering injury as a result.

B. Breach

Breach is the failure to meet the standard of care. (Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th 627, 643.) Whether a breach of duty occurred is usually a factual question for the jury. (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1173.)

Vinculums Defendants claims that it did not breach a duty of care owed to Juan. The Court concludes that a triable issue of fact exists on this issue because Vinculum Defendants left the keys to the subject boom lift on its gas tank and had previously given Juan permission to use the boom lift.

C. Causation

“To determine causation in fact, California has adopted the substantial factor test set forth in the Restatement Second of Torts, section 431. [Citations.] An event will be considered a substantial factor in bringing about a harm if it is ‘recognizable as having an appreciable effect in bringing it about.’ ” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 68.) A substantial factor “must be more than a remote or trivial factor,” although “[i]t does not have to be the only cause of the harm.” (CACI 430.) Like breaches, causation is a question of fact for the jury unless the facts are such that the only reasonable conclusion is an absence of causation. (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 197-98.)

Vinculums Defendants claim that Plaintiff cannot establish causation because Vinculums Defendants’ actions were not the cause-in-fact of the incident. Vinculum Defendants claim that Juan’s and Marcos’s unauthorized operation of the boom lift without training was the incident’s true cause-in-fact. The Court disagrees.

“ ‘A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.’ [Citation.] If the cause is superseding, it relieves the actor from liability whether or not that person’s negligence was a substantial factor in bringing about the harm.” (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1031.)

“CACI Nos. 432 and 433 pertain to third-party conduct or intentional/criminal conduct as a superseding cause. These instructions state that to avoid responsibility, the defendant must establish four factors: the other party’s conduct occurred after the defendant’s, the subsequent conduct was highly unusual, the defendant had no reason to expect such wrongful conduct, and the resulting harm was different from that which could be expected from the defendant's own conduct.” (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th 746, 755.) “Whether an intervening force is superseding or not generally presents a question of fact, but becomes a matter of law where only one reasonable conclusion may be reached.” (Id. at 756.)

In this case, Vinculums Defendants have not substantiated three factors necessary to establish that Juan’s conduct was a superseding cause of his harm: (1) that Juan’s operation of the boom lift was highly unusual, (2) Vinculums Defendants had no reason to expect the wrongful operation of the boom lift, and (3) Juan’s harm was different from that which could be expected from Vinculums Defendants’ own conduct. Indeed, “the very reason why the [Vinculums Defendants’] conduct is [arguably] negligent is that it creates the risk of the particular intervening criminal act.” (6 Witkin, Summary of Cal. Law (11th ed. 2019) Torts, § 1366 (collecting cases).) Leaving keys to the boom lift on the gas tank creates the distinct possibility that others might attempt to use the vehicle.

CONCLUSION

Vinculum Defendants’ motion for summary judgment on the FAC is DENIED.


[1] Vinculums Defendants’ objections to the Moulin and Nemire Declarations are overruled.

[2] Because Guerrero, Lupercio, and Ceja were named as Doe Defendants, the FAC also technically asserts product liability claims against them. Given the patent inapplicability of these claims to Guerrero, Lupercio, and Ceja, the Court has not addressed these claims.

Case Number: BC701989    Hearing Date: February 05, 2020    Dept: 32

Harold Figueroa, et al.

Plaintiffs,

v.

AT&T Corporation, et al.

Defendants.

Case No.: BC701989

Hearing Date: February 5, 2020

[TENTATIVE] order RE:

motion to compel the deposition of CROSS-defendant All access equipment rentals, inc.’s person most Qualified

Defendants/Cross-Complainants Vinculums Services, LLC, Robert Guererro, Joel Lupercio, and Jorge Ceja (collectively, “Vinculum Defendants”) move to compel Defendant/Cross-Defendant All Access Equipment Rentals, Inc. (“All Access”) to produce its PMQ to testify regarding Vinculum Defendants’ Category Nos. 1 - 5, and to produce documents responsive to Vinculum Defendants’ Request Nos. 1 - 5. “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).)

The Court finds that All Access failure between September 2019 and January 2020 to reschedule the deposition at issue despite ten calls or emails from Vinculum Defendants’ counsel constitutes All Access failing to appear for the September 19, 2019 deposition.

The Court finds All Access’s objections to the form of Vinculum Defendants’ deposition notice were not valid objections. The first objection to Vinculum Defendant’s deposition notice, that the deposition notice sought a “person most knowledgeable” rather than a “person most qualified”, is base semantics.

The Court finds All Access’s second objection to the deposition notice is valid and was properly raised. All Access objected that a request for a person most knowledgeable re the basis for All Access’s indemnity claim against the Vinculum Defendants impermissibly requests a person to testify to legal conclusions. Deposition questions asking a party to state all facts, list all witnesses, and identify all documents that support legal contentions in the party’s pleadings are improper in a deposition, although they would be proper if asked by interrogatories. (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1225, 1256.) However, All Access provides no legal authority for its argument that a single valid objection to one category of deposition requests relieves All Access from attending the deposition to answer questions based on the other four categories.

The Court finds that All Access’s objections based on attorney work product, attorney-client privilege, and premature expert product, even if valid, do not relieve All Access of its obligation to attend a noticed deposition.

The Court finds that All Access is estopped from asserting the time bar in Code of Civil Procedure section 2025.480 because All Access continued to tell Vinculum Defendants’ that All Access would reschedule the deposition for four months, while waiting for the 60-day statute of limitations to run out.

The Court finds that Vinculum Defendants’ have sufficiently met and conferred on the issues in the present motion because All Access provided its objections to the deposition notice in September 2019 and the parties discussed not only the timing but the scope of the deposition for four months thereafter.

Finally, the Court finds Vinculum Defendants’ discovery to be overly broad and unduly burdensome. As such, the Court issues the following discovery order:

  1. All Access shall produce and allow deposition testimony from a PMK regarding Categories Nos. 1, 2, and 5.

  2. All Access shall produce, on or before the date of the deposition of All Access’ PMK for Categories Nos. 1, 2, and 5, all documents and records responsive to Vinculum Defendants’ Requests for Production Nos. 1, 2, and 5.

  3. All Access shall produce and allow deposition testimony from a PMK regarding Category 3 but limited to any written or oral instruction provided by All Access to Vinculum Defendants for securing manlift keys or pick up in January 2018. Vinculum Defendants have failed to show how learning about instructions provided to other customers could lead to admissible evidence that All Access was negligent in instructing Vinculum Defendants about the manlift rented to Vinculum Defendants.

  4. All Access shall produce, on or before the date of the deposition of All Access’s PMK regarding Category 3 as limited above, all documents and records responsive to Request for Production No. 3, but limited to those documents and records reflecting oral or written instruction provided by All Access to Vinculum Defendants for securing manlift keys or pick up in January 2018.

  5. All other requests for production and deposition testimony are DENIED.

  6. All Access shall provide a PMK for deposition, limited to the scope entailed above, on February 18, 2020, or on a date stipulated to by both parties. On or before the date All Access provides a PMK for deposition, All Access shall produce records responsive to Vinculum Defendants’ document requests, limited to the scope entailed above.

Case Number: BC701989    Hearing Date: January 13, 2020    Dept: 32

JIN HEE LEE,

Plaintiff,

v.

SERIGNE BASSIROU ATHJ, et. al.

Defendants.

Case No.: BC701989

Hearing Date: December 13, 2019

[TENTATIVE] order RE:

HKbY’s Motion for Summary judgment

BACKGROUND

A. Complaint

This is a personal injury action brought by Plaintiffs Jin Hee Lee (“Jin”) and Byeong Sug Yun Lee (“Byeong”) (collectively, “Plaintiffs”) against Defendants Serigne Bassirou Athj (“Athj”), Juan Andrade (“Andrade”), HKBY LLC (“HKBY”), Ralphs Grocery Company (“Ralphs”), 3780 Wiltern Center LLC (“Wiltern”), City Valet Parking Systems (“CVPS”), and Universal Protection Service (“Universal”) (collectively, “Defendants”). The operative pleading is the First Amended Complaint (“FAC”) filed on August 28, 2018. The FAC asserts causes of action for (1) negligence, (2) premises liability, and (3) loss of consortium. Plaintiffs allege that a vehicle owned by Andrade and driven by Athj made contact with Jin as he was walking in a parking structure (“Parking Structure”) owned and operated by HKBY, Ralphs, Wiltern, and Universal.

B. Cross-Complaints

On October 5, 2018, Ralphs filed a Cross-Complaint against Athj, Juan Andrade (“Andrade”), and HKBY. The Cross-Complaint asserts causes of action for (1) implied indemnity, (2) contribution and apportionment, (3) express indemnity, and (4) declaratory relief.

On October 10, 2018, Wiltern filed a Cross-Complaint. Wiltern’s Second Amended Cross-Complaint was filed against CVPS and Roes 1-20. This pleading asserts causes of action for (1) equitable indemnity, (2) contribution, (3) declaratory relief, and (4) apportionment of fault.

On October 12, 2018, HKBY filed a Cross-Complaint against Athj, Andrade, and Wiltern. The Cross-Complaint asserts causes of action for (1) implied indemnity, (2) contribution and indemnity, (3) declaratory relief, (4) negligence, and (5) express indemnity.

On April 15, 2019, Universal filed a Cross-Complaint against Moes 1-20. The Cross-Complaint asserts causes of action for (1) implied indemnity, (2) contribution, (3) declaratory relief, and (4) express indemnity.

On May 21, 2019, CVPS filed a Cross-Complaint against Athj. The Cross-Complaint asserts causes of action for (1) equitable indemnity, (2) implied indemnity and contribution, (3) declaratory relief, and (4) apportionment of fault.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

REQUEST FOR JUDICIAL NOTICE

HKBY’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

OBJECTIONS

Plaintiffs’ objection to the Traffic Collision Report is SUSTAINED. (Veh. Code § 20013.)

HKBY’s objections to the Avrit and Fradkin Declarations are OVERRULED.

DISCUSSION

HKBY moves for summary judgment on the FAC. The FAC asserts three causes of action against HKBY: (1) negligence, (2) premises liability, and (3) loss of consortium. All three causes of action are founded on premises liability, a form of negligence. (See FAC ¶¶ 28, 37, 49.) Specifically, Plaintiffs allege that HKBY had a duty “to keep the Premises in a good, safe and proper condition” (FAC ¶¶ 28, 33) and that HKBY breached this duty by (1) permitting the Parking Structure to possess a dangerous and unsafe condition, viz. an overcrowded parking structure, (2) failing to warn of the dangerous condition, and (3) failing to utilize proper safeguards to ensure pedestrian safety. (Ibid.)

HKBY contends that the three aforementioned causes of action are meritless because HKBY did not control the Parking Structure where Jin was injured.

Premises liability “is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “A person who possesses or controls land has a duty to exercise reasonable care to maintain the land in a reasonably safe condition.” (University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 444. This test is “stated in the alternative.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162.) Hence, “[a] defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (See ibid.) “Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)

In support of its contention, HKBY submits the following evidence.

HKBY owns real property located at 670 S. Western Avenue, Los Angeles, CA 90005 (“HKBY Property”). (DUMF 6.) The HKBY Property is located adjacent to the Parking Structure. (Ibid.) HKBY neither owns nor leases the Parking Structure. (Kim Decl. ¶¶ 2-3; DUMF 10.)

At the time of the accident, a Declaration of Covenants, Restrictions, and Easements (“CC&Rs”) was entered into between HKBY and Wiltern concerning the ownership and use of the Parking Structure. (DUMF 7.) The CC&Rs granted HKBY, Ralph’s, and Ralph’s customers and employees an easement for the future use of the Parking Structure. (DUMF 8.) At the time of the subject incident, the CC&Rs was operative. (DUMF 11.)

Section 10 of the CC&Rs is titled “Common Area Operation and Maintenance.” (Kim Decl. Ex. A.) The “Common Area” includes the Parking Structure. (Ibid.) Section 10 states in relevant part: “Owner [i.e. Wiltern] shall operate and maintain the Common Area in good condition and repair. Owner’s obligations hereunder shall include, but not be limited to the following”: (1) removal of all papers, debris, dirt and refuse form the Common Area as often as necessary, (2) maintenance of the Parking Structure and parking areas properly designated and painted with directional signs and striping, (3) maintenance of all paving and surface areas in level and smooth condition, (4) sweeping of the Common Area, (5) maintenance of all lights and light standards in the Common Area, (6) lighting of the Common Area, (7) reasonable supervision and security in the Common Area, and (8) prompt repairs for any damage or deterioration to the Common Area. (Ibid.)

Based on this evidence, HKBY asserts that any duty of care owed to Plaintiffs remained with Wiltern, the entity that owns the Parking Structure and is responsible for maintaining the same.

In opposition, Plaintiffs point to other provisions of the CC&Rs to demonstrate that HKBY maintained some measure of control over the Parking Structure. Most notably, Section 7 of the CC&Rs states: “The Common Area shall be under the management, supervision and control of Owner. Except as provided herein, however, Owner shall not make any use of, or change to, the Common Area without Adjacent Owner’s prior approval. Adjacent Owner may withhold such approval in its sole discretion when Owner desires to make any of the following changes: [¶] Any change in the location or arrangement of traffic lanes, driveways, or curb cuts in the Common Area or the Parking Structure as shown on the Site Plan.” (Fradkin Decl. Ex. 2.) Edward Kim (“Kim”), HKBY’s property manager, testified that, per his understanding of Section 7 of the CC&Rs, “any substantial changes” to the Common Area “need to be approved by HKBY.” (Kim Depo. pp. 23-25.) This includes changes to the number of spaces in the parking lot. (Kim Depo. pp. 21-22.)

Section 8.5 of the CC&Rs provides: “No charge of any kind shall ever be made by Owner for ingress to, egress from, or parking in the Adjacent Owner’s Exclusive Parking Area …. However, Adjacent Owner shall be permitted to institute parking control measures with respect to the parking areas established for the exclusive use of its tenants and its customers.” (Fradkin Decl. Ex. 2.) Kim represented that, based on this section, HKBY is allowed to control the parking areas designated for itself and Ralph’s. (Kim Depo. pp. 26-27.)

Section 8.6 states that, at HKBY’s request, Wiltern must “tow any vehicles parked in violation of [HKBY’s] Exclusive Parking Area.” (Fradkin Decl. Ex. 2.) Kim corroborates this. (Kim Depo. p. 27.)

Section 13 is entitled “Budget Approval.” That section states: “Owner shall, at least sixty (60) days prior to the beginning of each calendar year, submit to Adjacent Owner for its approval a budget of the anticipated Common Expenses for such coming year together with such back-up material as is reasonably necessary to substantiate the same…. Owner and Adjacent Owner shall then negotiate in good faith to establish a final approved budget. Owner shall operate, maintain, and repair the Common Area in accordance with the final approved budget.” (Fradkin Decl. Ex. 2.) The Common Expenses are “the amounts necessary for the operation, maintenance, insurance, and taxes pertaining to the Common Area.” (Fradkin Decl. Ex. 2, § 11.) Kim noted that, pursuant to this section, HKBY has to approve Wiltern’s budget for the common expenses every year. (Kim Depo. pp. 32-33.)

Section 16 is entitled “Take-Over of Maintenance by Adjacent Owner.” That section provides: “If Adjacent Owner at any time or from time to time is reasonably dissatisfied with the quality or cost of Owner’s operation or maintenance of the Common Area, Adjacent Owner shall have the right to give Owner notice of such dissatisfaction specifying why Owner’s operation or maintenance is unsatisfactory. If thirty (30) days after the date of such notice, Owner’s operation or maintenance shall continue to be unsatisfactory, Adjacent Owner shall have the right (but not any obligation) to take over the operation and maintenance of the Common Area from Owner….” (Fradkin Decl. Ex. 2.) Kim corroborates this. (Kim Depo. p. 34.)

Section 18.2 states: “In an emergency, Adjacent Owner may, at its option, perform repairs or maintenance that would otherwise be Owner’s obligation on the Common Area.” (Fradkin Decl. Ex. 2.) Kim corroborates this. (Kim Depo. p. 35.)

By citing to these CC&R provisions and adducing testimony from HKBY’s property manager corroborating the provisions’ effect, Plaintiffs have shown that HKBY possesses some degree of control over the Parking Structure. Whether the degree of this control is substantial enough to justify premises liability is for a jury to determine. (See Isaacs, supra, 38 Cal.3d at 134.)

CONCLUSION

HKBY’s motion for summary judgment on the FAC or, in the alternative, summary adjudication of each cause of action stated therein is DENIED.

Case Number: BC701989    Hearing Date: January 06, 2020    Dept: 32

JIN HEE LEE,

Plaintiff,

v.

SERIGNE BASSIROU ATHJ, et. al.

Defendants.

BC701989

January 6, 2020

[TENTATIVE] order RE:

Universal’s Motion for Summary judgment

BACKGROUND

A. Complaint

This is a personal injury action brought by Plaintiffs Jin Hee Lee (“Jin”) and Byeong Sug Yun Lee (“Byeong”) (collectively, “Plaintiffs”) against Defendants Serigne Bassirou Athj (“Athj”), Juan Andrade (“Andrade”), HKBY LLC (“HKBY”), Ralphs Grocery Company (“Ralphs”), 3780 Wiltern Center LLC (“Wiltern”), City Valet Parking Systems (“CVPS”), and Universal Protection Service (“Universal”) (collectively, “Defendants”)The operative pleading is the First Amended Complaint (“FAC”) filed on August 28, 2018.  The FAC asserts causes of action for (1) negligence, (2) premises liability, and (3) loss of consortiumPlaintiffs allege that a vehicle owned by Andrade and driven by Athj made contact with Jin as he was walking in a parking structure owned and operated by HKBY, Ralphs, Wiltern, and Universal.

B. Cross-Complaints

On October 5, 2018, Ralphs filed a Cross-Complaint against Athj, Juan Andrade (“Andrade”), and HKBY.  The Cross-Complaint asserts causes of action for (1) implied indemnity, (2) contribution and apportionment, (3) express indemnity, and (4) declaratory relief.

On October 10, 2018, Wiltern filed a Cross-Complaint. was filed against CVPS and Roes 1-20 is pleading asserts causes of action for (1) equitable indemnity, (2) contribution, (3) declaratory relief, and (4) apportionment of fault.

On October 12, 2018, HKBY filed a Cross-Complaint against Athj, Andrade, and Wiltern.  The Cross-Complaint asserts causes of action for (1) implied indemnity, (2) contribution and indemnity, (3) declaratory relief, (4) negligence, and (5) express indemnity. 

On April 15, 2019, Universal filed a Cross-Complaint against Moes 1-20.  The Cross-Complaint asserts causes of action for (1) implied indemnity, (2) contribution, (3) declaratory relief, and (4) express indemnity.

On May 21, 2019, CVPS filed a Cross-Complaint against Athj.  The Cross-Complaint asserts causes of action for (1) equitable indemnity, (2) implied indemnity and contribution, (3) declaratory relief, and (4) apportionment of fault.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.”  (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.)  The court may not weigh the evidence (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (CCP § 437c(f)(2).)  The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

DISCUSSION

Universal moves for summary judgment on Wiltern’s SAXC or, in the alternative, summary adjudication of each cause of action in the SAXC.  The SAXC asserts causes of action for (1) equitable indemnity, (2) contribution, (3) declaratory relief, and (4) apportionment of fault.  As Universal notes, those causes of action derivative of the causes of action in Plaintiff’s FAC.  The FAC asserts three causes of action against Universal: (1) negligence, (2) premises liability, and (3) loss of consortium.  All three causes of action are founded on premises liability, a form of negligence.  (See FAC ¶¶ 28, 37, 49.)  Specifically, Plaintiffs allege that Universal had a duty “to keep the Premises in a good, safe and proper condition”  (FAC ¶¶ 28, 33) and that Universal breached this duty by (1) permitting the Parking Structure to possess a dangerous and unsafe condition, viz. an overcrowded parking structure, (2) failing to warn of the dangerous condition, and (3) failing to utilize proper safeguards to ensure pedestrian safety.  (Ibid.)

Universal contends that Plaintiffs’ three causes of action (and, in turn, Wiltern’s four causes of action) are without merit because Universal owed no duty of care to Jin at the time he was injured.

Premises liabilityis grounded in the possession of the premises and the attendant right to control and manage the premises. Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)  “A person who possesses or controls land has a duty to exercise reasonable care to maintain the land in a reasonably safe condition.”  (University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 444.  

“Generally a person does not have a duty to control anothers conduct or to warn those who may be endangered by such conduct.  However, a duty may arise where a special relationship exists giving rise to a right to such protection.  [Citation.]” Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 247.)  “Such a special relationship exists ‘between a business establishment and its customers [which] as a matter of law places an affirmative ‘duty’ on the proprietor to take reasonable precautions to protect patrons from reasonably anticipative criminal conduct of unknown third parties.’ ”  (Ibid.)  “Moreover, this duty is applicable to the agents and employees of the business establishment.”  (Ibid.)

Based on this special relationship, the Court of Appeals has instructed: Just as a business may be liable for its failure to take reasonable precautions to protect its customers (including, presumably, its failure to hire a competent security guard where there is such a need), a security guard hired by the business should be liable to an injured customer where the guard fails to act as would a reasonable security guard under similar circumstances and that failure causes the customers injury.  By contracting with the business to provide security services, the security guard creates a special relationship between himself and the businesss customers.  This relationship, in and of itself, is sufficient to impose on the guard the obligation to act affirmatively to protect such customers while they are on the business premises.”  (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199-200.)  Case law cautions, however, that the security company “owes no greater duty toward the patrons of that business than is owed by the business owner under relevant principles of premises liability law.”  (Balard, supra, 210 Cal.App.3d at 247.)

In support of this motion, Universal submits the following evidence.  

On February 2, 2018, at approximately 10:45 a.m., Plaintiff was struck by an automobile driven by Athj in a Ralph’s parking lot located at 670 S. Western Avenue, Los Angeles CA 90005 (“Parking Structure”).  (Basile Decl. Exs. A-B.) According to Universal’s Client Manager, Universal did not own, lease, occupy, or control the Parking Structure.  (Bravo Decl. ¶ 17.)  

Universal entered into a contract with Wiltern on or about April 25, 2007 for security services at the 3780 Wilshire Boulevard building (“Wilshire Building”) in Los Angeles, CA (“Contract”).  (Bravo Decl. ¶ 5, Ex. 1.)  The Contract was in effect at the time of the incident.  (Bravo Decl. ¶ 6.) written operating procedures entitled Post Orders.  (Bravo Decl. ¶ 9, Ex. 1, p. 1.)  The Post Orders in effect on the date of the incident state that Universal’s “assignment includes all of 3780 Wiltern Center, [Universal is] not responsible for any activity that occurs outside of 3780 Wiltern Center.”  (Bravo Decl. Ex. 2, p. 5.) 

The Post Orders provide that, during the hours of 8:00 a.m. to 4:00 p.m., the duties of the Universal security professional on duty are to “monitor[s] the tower, parking structure and perimeter areas via cameras/monitoring system.”  (Bravo Decl. ¶ 12, Ex. 2, p. 56.)

Based on this evidence, Universal asserts that the scope of its duty with respect to the Parking Structure at the time of the incident is limited to the responsibilities that it undertook pursuant to the Contract.  The Court agrees.  Universal does not own or possess the Parking Structure, and its sole connection with that structure is its security obligations under the Contract.  The terms of that Contract therefore dictate whether Universal owed Jin a duty of care. 

Universal maintains that, under the terms of the Contract, Universal did not owe a pedestrian in the Parking Structure, like Jin, a duty of care because Universal’s contractual duties at the time were to stay inside the Wilshire Building and monitor the surveillance camera.  Universal explains: “the duties of the sole UPS guard on duty in the [Wilshire Building] were to remain stationed at the security console inside the Building across the alley from the [Parking Structure] and monitor the tower, parking structure and perimeter areas via the surveillance camera monitoring system….  There was absolutely no instruction, duty or responsibility for the [Universal] guard to undertake any other tasks during the time period at issue in this case.”  (Mot. at 16.)  

This argument is also well-taken. an assumption of Wiltern’s affirmative duty as a property owner to keep the Parking Structure in a good, safe and proper conditionAbsent the imposition of this duty, Plaintiff’s claims against Universal and Wiltern’s cross-claims against Universal fail.  

CONCLUSION

Universal’s motion for summary judgment on Wiltern’s SAXC is GRANTED.  

Case Number: BC701989    Hearing Date: December 13, 2019    Dept: 32

HAROLD FIGUEROA, et. al.

Plaintiffs,

v.

AT&T CORPORATION, et. al.

Defendants.

Case No.: BC701989

Hearing Date: December 13, 2019

[TENTATIVE] order RE:

AT&T Defendants’ Motion for Summary judgment

BACKGROUND

A. Complaint

This is a personal injury / wrongful death action filed by Plaintiffs Harold Figueroa (“Harold”) individually and on behalf of the Estate of Juan Diego Figueroa (“Estate”), Ana Lopez (“Ana”) individually and on behalf of the Estate, and Marcos Figueroa (“Marcos”) (collectively, “Plaintiffs”) against Defendants AT&T Corporation (“AT&T”); AT&T Mobility Wireless Operations Holdings Inc. (“AT&T Wireless”); All Access Equipment Rentals, Inc. (“All Access”); RBR Properties, Inc. (“RBR”); Vinculums Services, LLC (“Vinculums”); New Cingular Wireless PCS LLC (“Cingular”); JLG Industries, Inc (“JLG”); Joel Lupercio (“Lupercio”); Jorge Ceja (“Ceja”); and Roberto Guerrero (“Guerrero”) (collectively, “Defendants”).

The operative pleading is the First Amended Complaint (“FAC”) filed on September 6, 2018. The FAC asserts causes of action for (1) strict product liability – failure to warn against All Access and JLG, (2) negligence – product liability against All Access and JLG, (3) negligent entrustment against AT&T, AT&T Wireless, Cingular, and Vinculums, (4) negligent hiring and retention against AT&T, AT&T Wireless, Cingular, and Vinculums, (5) premises liability against AT&T, AT&T Wireless, Cingular, and RBR, (6) negligent provision of required safeguards against AT&T, AT&T Wireless, Cingular, and Vinculums, (7) negligence – peculiar risk of harm against AT&T, AT&T Wireless, and Cingular, (8) wrongful death against Defendants, and (9) negligent infliction of emotional distress against Defendants. The FAC alleges in pertinent part as follows.

All Access and JLG manufacture and supply telescopic boom lifts. On or around January 30, 2018, AT&T, AT&T Wireless, Cingular, and Vinculums (collectively, “Telecommunications Companies”) left one of these boom lifts on real property located at 315 E. 87th Place, Los Angeles, CA 90003 (“Property”). Employees of the Telecommunications Companies had been using the boom lift to conduct maintenance on a cellphone transmission tower. The employees provided keys to the boom lift to Juan, a 22-year-old, and allowed Juan on various occasions to operate the boom lift despite Juan lacking qualifications to do so.

On the afternoon of January 30, 2018, Juan and his brother Marcos used the telescopic boom lift to trim an overgrown tree located at the Property. Because the sky began to get dark, Juan lowered the boom lift. As he was lowering the lift, Juan made contact with a high-voltage powerline. Juan was subsequently electrocuted, caught on fire, and died. Alongside Juan, Marcos frantically tried to stop Juan from burning. Eventually, the electric charge and heat of the fire became so unbearable that Marcos plunged 20-feet down onto the rooftop of a metal building, sustaining serious injuries to his legs and feet.

B. Cross-Complaints

On July 29, 2019, AT&T, AT&T Wireless, Vinculums, Cingular, Lupercio, Guerrero, and Ceja filed a Cross-Complaint against All Access and JLG for equitable indemnity, comparative indemnity, and declaratory relief.

On September 11, 2019, JLG filed a Cross-Complaint against the AT&T Defendants for indemnification, contribution, and declaratory relief.

On September 18, 2019, RBR filed a Cross-Complaint against the Telecommunications Companies for express contractual indemnity, equitable indemnity, breach of contract, contribution, and declaratory relief.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

OBJECTIONS

Plaintiffs’ objections to the Guerrero and Snowden Declarations are OVERRULED.

DISCUSSION

AT&T, AT&T Wireless, and Cingular (hereinafter, “AT&T Defendants”) move for summary judgment on the FAC and on JLG’s Cross-Complaint.

A. Prima Facie Case

Each of Plaintiffs’ causes of action against the AT&T Defendants is premised on negligence. AT&T Defendants assert that Plaintiffs cannot establish that the AT&T Defendants were negligent because they were not involved with the subject incident.

AT&T Defendants submit the following evidence. Vinculums is an independent third-party contractor that performs cellular tower work on AT&T towers in the Los Angeles Market. (DUMF 3.) Vinculums contracted for this work in the Los Angeles Market with AT&T Mobility LLC, which is not a party to this Lawsuit. (Snowden Decl. ¶ 5.)

An AT&T tower in the Los Angeles Market (“Tower”) is located on the Property. (DUMF 2, 5.) New Cingular leased the site for the Tower and Shelter from the Property owner. (DUMF 17.)

Pursuant to its contract with AT&T Mobility Services LLC, Vinculums performed maintenance and upgrades work on the Tower in January 2018. (Guerrero Decl. ¶¶ 4-5, 9.) The Engineering Department at AT&T Mobility Services LLC informed Vinculums what maintenance and upgrades needed to be done to the Tower on the Property as it does with respect to other AT&T towers in the Los Angeles Market. (DUMF 7.) Vinculums took it from there, designing how the work will be done, obtaining equipment needed such as boom lifts to perform the work, and performing the work through to completion. (Snowden Decl. ¶ 6.) AT&T Mobility Services LLC was not involved with any of the actual work performed by Vinculums

at the Tower. (Snowden Decl. ¶ 6.)

Vinculums’ project at the Tower involved upgrading its LTE System and shelter (“Shelter”). (DUMF 10.) The Shelter includes the power plant with DC converters, AC panels, backup batteries, generators, and other equipment (“Project”). (Ibid.) Throughout the Project, the same three Vinculums’ employees performed all the work. (DUMF 11.) Guerrero was the foreman, Ceja was the tower technician, and Lupercio was the tower lead. (Ibid.) George Barron (“Barron”) was the construction manager for Vinculums, and he visited the site one or two times during the Project. (Ibid.) Guerrero was at the Property for the first time on December 13, 2017 to look it over to determine what would be needed for the Project. (DUMF 12.) Guerrero, Ceja, and Lupercio began actually working at the Property on January 8, 2018. (Ibid.) Guerrero, Ceja, and Lupercio completed the Project on January 29, 2018. (Guerrero Decl. ¶ 9.) After finishing the Project on the evening of January 29, 2018, Ceja parked the boom lift on the street outside the Property for pick up by a third-party vender. (DUMF 23; Guerrero Decl. ¶ 14.) This was the evening before the day the incident occurred. (Ibid.)

Guerrero, Ceja, and Lupercio, and also Barron when he visited, were the only ones who came to the Property during the Project that had anything to do with the Project and/or the Tower and/or Shelter. (Guerrero Decl. ¶ 10.) At no time while Guerrero was at the Property was any employee, agent, or representative of the AT&T Defendants, or any other AT&T entity ever present at the Property. (Guerrero Decl. ¶ 11.)

Misty Snowden is AT&T Mobility LLC’s Area Manager of Network Engineering for the Los Angeles Market. (Snowden Decl. ¶ 3.) According to Snowden, New Cingular was not involved with any of the work performed on the Property. (Snowden Decl. ¶ 7.) AT&T had no direct relationship with the Tower, Shelter, or the Property and was not involved with any of the work performed on the Property. (Snowden Decl. ¶ 9.) And AT&T Wireless had no direct relationship with the Tower, Shelter, or the Property and was not involved with any of the work performed on the Property. (Snowden Decl. ¶ 8.)

Based on this evidence, AT&T Defendants have made a prima facie showing that they are not liable for the claims raised in the FAC or JLG’s Cross-Complaint because they had no cognizable involvement in the subject incident. If Plaintiffs cannot show that AT&T Defendants were involved with the subject incident, then Plaintiffs cannot show that AT&T Defendants owed them a duty, that they breached that duty, or that this breach caused Plaintiffs harm.

With respect to Cingular in its capacity as a lessee, AT&T Defendants have made a prima facie showing that Cingular is not liable for premises liability because the dangerous condition developed outside the Premises, on the evening before the day of the incident, and as the result of a third-party’s actions. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806 (noting that owner is liable for dangerous condition brought about by third person where owner had either actual or constructive knowledge of the dangerous condition or (2) was able by the exercise of ordinary care to discover the condition).)

B. Triable Issue of Material Fact

In response, Plaintiffs admit that Vinculums is an independent third-party contractor that entered into a contract to perform the work on the Tower. (See DUMF 3.) Plaintiffs argue, however, that AT&T Defendants are liable for negligence pursuant to the peculiar risk doctrine.

“The doctrine of peculiar risk is a judicially created exception to the common law rule that one hiring an independent contractor to perform inherently dangerous work is generally not liable to a third party for injuries resulting from that work.” (Tverberg v. Fillner Constr. (2012) 202 Cal.App.4th 1439, 1444.) To establish application of the peculiar risk doctrine, Plaintiffs must therefore show, among other things, that the AT&T Defendants hired Vinculums as an independent contractor. (See CACI 3708.)

To make this showing, Plaintiffs cite discovery responses from Vinculums and AT&T Wireless. (PUMF 4, 6.)

Plaintiffs asked Vinculums to produce documents pertaining to any agreements between it and AT&T or AT&T Wireless. (Sandoval Decl. Ex. 5, RPD Nos. 6-7.) Vinculums responded by attaching a contract entitled “Mobility Network General Agreement” executed between Vinculums and AT&T Mobility LLC. (Sandoval Decl. Ex. 6.)

Plaintiffs propounded form interrogatories on AT&T Wireless. In Form Interrogatory No. 4.1, Plaintiffs asked AT&T Wireless whether, at the time of the incident, it had any insurance policy for which it was “or might be” insured in any manner for the damages, claims, or actions that have arisen out of the incident and, if so, to specify details about the insurance policy. (Sandoval Decl. Ex. 13.) AT&T Wireless responded by, inter alia, citing insurance policies held by Vinculums. (Ibid.)

These discovery responses are not probative and thus do not establish a triable issue. The Mobility Network General Agreement does not contradict but indeed supports AT&T Defendants’ position that Vinculums performed work on the Tower pursuant to a contract with AT&T Mobility LLC. This agreement does not implicate the AT&T Defendants. The form interrogatory responses from AT&T Wireless cannot be viewed out of context. Plaintiffs asked AT&T Wireless whether it had an insurance policy that was or might have insured the company for damages, claims, or actions that arose out of the incident. AT&T Wireless’s response — that it has an insurance policy with Vinculums — shows it has an insurance policy with Vinculums but does not indicate whether this is because Vinculums was performing work on its behalf in connection with the Tower. AT&T Wireless may have held this policy pursuant to other work with Vinculums or may have answered this interrogatory based on the assumption that any liability it faced would be covered by Vinculums’ insurance carrier. An equivocal and speculative discovery response, like this, does not raise a triable issue of material fact.

Plaintiffs also attempt to make this showing by presenting evidence that AT&T Defendants were involved in the work performed by Vinculums on the Tower. Defendants cite deposition testimony from Guerrero and Lupercio. (PUMF 8-9.) Guerrero testified that he has to log in and out of an “AT&T portal” every time he steps on and off the work site. (Guerrero Depo. p. 109.) Guerrero testified that after he finished the Project, he logged out from the “AT&T portal.” (Id. at 162.) “I logged out. I ran my health checks for the site to make sure everything was running smoothly and we don’t leave with any alarms, anything — to make sure that AT&T is happy when we leave and I’m confident enough to leave the site.” (Id. at 162-63.) Lupercio testified that “AT&T” would occasionally ask the Vinculum workers to video record the Project site to review the work that they had performed. (Lupercio Depo. pp. 138-39.)

This evidence fares no better. These references to “AT&T” by Guerrero and Lupercio could equally refer to AT&T Mobility LLC as to AT&T and AT&T Wireless. These ambiguous references to “AT&T” would not serve as adequate evidence at trial that AT&T Defendants hired Vinculums to perform work at the Tower.

Plaintiffs have not raised a triable issue of material fact as to whether the peculiar risk doctrine applies because they have not presented evidence that AT&T Defendants hired Vinculums to work on the Tower.[1][2]

CONCLUSION

AT&T Defendants’ motion for summary judgment on the Complaint and JLG’s Cross-Complaint is GRANTED.

[1] The peculiar risk also requires that Plaintiffs show (1) that the work performed by Vinculums involves a special risk of harm to others; (2) that AT&T Defendants knew or should have known that the work was likely to involve this risk; (3) that Vinculums failed to use reasonable care to take specific safety measures appropriate to the danger to avoid this risk; and (4) that Vinculum’s failure was a cause of harm to Plaintiffs. (CACI 3708.) Plaintiffs established a triable issue of material fact as to these remaining elements by presenting undisputed evidence that (1) the work that Vinculums performed on the Tower involved a clear electrocution hazard (PUMF 37-38), (2) Vinculums left the boom lift with the keys on the machine (PUMF 40), and (3) Juan died as a result of his use of the boom lift (PUMF 46-47).

[2] Plaintiffs also argue that AT&T Defendants negligently hired Vinculums by failing to exercise reasonable care in selecting an independent contractor to perform work on the Tower. (See Opp. at 15.) This argument plainly fails for the same reason. AT&T Defendants cannot be liable for negligently hiring Vinculums if they did not hire Vinculums.

HAROLD FIGUEROA, et. al.

Plaintiffs,

v.

AT&T CORPORATION, et. al.

Defendants.

Case No.: BC701989

Hearing Date: December 13, 2019

[TENTATIVE] order RE:

RBR’s Motion for Summary judgment

BACKGROUND

A. Complaint

This is a personal injury / wrongful death action filed by Plaintiffs Harold Figueroa (“Harold”) individually and on behalf of the Estate of Juan Diego Figueroa (“Estate”), Ana Lopez (“Ana”) individually and on behalf of the Estate, and Marcos Figueroa (“Marcos”) (collectively, “Plaintiffs”) against Defendants AT&T Corporation (“AT&T”); AT&T Mobility Wireless Operations Holdings Inc. (“AT&T Wireless”); All Access Equipment Rentals, Inc. (“All Access”); RBR Properties, Inc. (“RBR”); Vinculums Services, LLC (“Vinculums”); New Cingular Wireless PCS LLC (“Cingular”); JLG Industries, Inc (“JLG”); Joel Lupercio (“Lupercio”); Jorge Ceja (“Ceja”); Roberto Guerrero (“Guerrero”) (collectively, “Defendants”).

The operative pleading is the First Amended Complaint (“FAC”) filed on September 6, 2018. The FAC asserts causes of action for (1) strict product liability – failure to warn against All Access and JLG, (2) negligence – product liability against All Access and JLG, (3) negligent entrustment against AT&T, AT&T Wireless, Cingular, and Vinculums, (4) negligent hiring and retention against AT&T, AT&T Wireless, Cingular, and Vinculums, (5) premises liability against AT&T, AT&T Wireless, Cingular, and RBR, (6) negligent provision of required safeguards against AT&T, AT&T Wireless, Cingular, and Vinculums, (7) negligence – peculiar risk of harm against AT&T, AT&T Wireless, and Cingular, (8) wrongful death against Defendants, and (9) negligent infliction of emotional distress against Defendants. The FAC alleges in pertinent part as follows.

All Access and JLG manufacture and supply telescopic boom lifts. On or around January 30, 2018, AT&T, AT&T Wireless, Cingular, and Vinculums (collectively, “Telecommunications Companies”) left one of these boom lifts on real property located at 315 E. 87th Place, Los Angeles, CA 90003 (“Property”). Employees of the Telecommunications Companies had been using the boom lift to conduct maintenance on a cellphone transmission tower. The employees provided keys to the boom lift to Juan, a 22-year-old, and allowed Juan on various occasions to operate the boom lift despite Juan lacking qualifications to do so.

On the afternoon of January 30, 2018, Juan and his brother Marcos used the telescopic boom lift to trim an overgrown tree located at the Property. Because the sky started to darken, Juan decided to lower the boom lift. As he was lowering the lift, Juan made contact with a high-voltage powerline. Juan was subsequently electrocuted, caught on fire, and burned to death. Alongside Juan, Marcos frantically tried to stop Juan from burning. Eventually, the electric charge and heat of the fire became so unbearable that Marcos plunged 20-feet down onto the rooftop of a metal building, sustaining serious injuries to his legs and feet.

B. Cross-Complaints

On July 29, 2019, AT&T, AT&T Wireless, Vinculums, Cingular, Lupercio, Guerrero, and Ceja filed a Cross-Complaint against All Access and JLG for equitable indemnity, comparative indemnity, and declaratory relief.

On September 11, 2019, JLG filed a Cross-Complaint against the AT&T Defendants for indemnification, contribution, and declaratory relief.

On September 18, 2019, RBR filed a Cross-Complaint against the Telecommunications Companies for express contractual indemnity, equitable indemnity, breach of contract, contribution, and declaratory relief.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

REQUEST FOR JUDICIAL NOTICE

RBR’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

OBJECTIONS

Plaintiffs’ objections to the Steinberg Declaration are OVERRULED.

RBR’s objections to the Harold, Morse, and Sandoval Declarations are OVERRULED.

DISCUSSION

RBR moves for summary judgment on the FAC. RBR contends that the sole issue before the Court is whether RBR owed Plaintiffs a duty of care to protect them and Juan from injury caused by Juan’s use of the boom lift.

To determine the merits of RBR’s motion, the Court must first assess the operative pleading. “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) The FAC asserts three causes of action against RBR: (1) premises liability, (2) wrongful death, and (3) negligent infliction of emotional distress. All three are founded on negligence. Plaintiffs allege in pertinent part that RBR “owed a duty to Plaintiffs to exercise ordinary care in the use and maintenance of the” Property “in order to avoid exposing persons such as Juan and Marcos … to an unreasonable risk of harm.” (FAC ¶ 76.) Plaintiffs allege that RBR breached this duty by failing to (1) maintain an overgrown tree at the Property, (2) secure the boom lift, and (3) warn of high voltage power lines on the Property. (FAC ¶ 77.)

RBR focuses its duty analysis on the second purported breach — failure to secure the boom lift — because RBR reasons that this breach was the true cause of Plaintiffs’ harm. (Mot. at 8-9.) In effect, however, RBR is asserting two arguments: (1) that RBR owed Plaintiffs no duty to secure the boom lift and (2) that its failure to maintain the “overgrown tree” at the Property and warn of high voltage power lines on the Property did not cause Plaintiffs to suffer harm.

A. Duty to Secure the Boom Lift

“Duty is a question of law for the court.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) “California law establishes the general duty of each person to exercise in his or her activities, reasonable care for the safety of others.” (Id. at 768 (citing Civ. Code § 1714(a).) Civil Code section 1714(a) provides in pertinent part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

“In the absence of a statutory provision, establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ ” (Cabral, supra, 51 Cal.4th at 770.) In determining whether policy considerations weigh in favor of such an exception, the most important factors (“Rowland factors”) are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143.) “Because Civil Code section 1714 establishes a general duty to exercise ordinary care in one’s activities, … [courts] rely on these factors not to determine ‘whether a new duty should be created, but whether an exception to Civil Code section 1714 … should be created.’ ” (Ibid.)

“Because a judicial decision on the issue of duty entails line-drawing based on policy considerations, ‘the Rowland factors are evaluated at a relatively broad level of factual generality.’ ” (Kesner, supra, 1 Cal.5th at 1143.) The Court must ask “not whether [the Rowland factors] support an exception to the general duty of reasonable care on the facts of the particular case before [the Court], but whether carving out an entire category of cases from that general duty rule is justified by clear consideration of policy.” (Id. at 1143-44.) By doing so, the Court “preserves the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make.” (Id. at 1144.) Hence, court-crafted exceptions to the duty rule are appropriate only ‘when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.’ ” (Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136, 143.)

Here, the general duty to take ordinary care in the conduct of one’s activities (Civ. Code § 1714(a)) applies to property owners. (See, e.g., Staats v. Vintner's Golf Club, LLC (2018) 25 Cal.App.5th 826, 832 (“As a consequence of this general duty [i.e., Civ. Code § 1714], those who own or occupy property have a duty to maintain their premises in a reasonably safe condition.”).) As such, RBR must show a categorical exception to that general rule.

Before formulating that categorical exception, however, the Court must untangle one key factual issue — whether the boom lift was parked on or off the Property when the Vinculums workers left the project site. If a triable issue of material fact exists in this respect and the Court determined that RBR had a duty to secure the boom lift on-site, then the Court would have to deny its motion for summary judgment.

No such triable issue exists. On January 29, 2018, after work was completed on the Property, the Vinculums employees parked the boom lift in a place for the rental company to pick up. (DUMF 15.) Roberto Guerrero (“Guerrero”), one of the Vinculums’ employees, testified that the boom lift was parked on the street. (Guerrero Depo. p. 110, Ex. 23; see also Ceja Depo. pp. 119, 170.) This is sufficient evidence to substantiate that fact. Plaintiffs contend that this fact is in doubt. In support, Plaintiffs cite testimony from Jorge Ceja (“Ceja”), another Vinculums’ employee. Ceja was asked: “Who picked that spot — do you know? — as to park it, where it was parked?” Ceja responded: “I don’t remember.” (Ceja Depo. p. 116.) This testimony is clearly insufficient. The question posed is equivocal — was counselor asking Ceja whether he knew who picked the parking spot or whether he knew where the boom lift was parked? Even assuming the latter, Ceja’s failure to recall is not proof that the boom lift was not parked on the street.

As such, the issue is properly stated as follows: whether a categorical exception to Civil Code section 1714 should be made exempting a property owner from potential liability to individuals who were injured because the property owner failed to secure an off-site heavy-duty vehicle belonging to another’s independent contractor. (See Kesner, supra, 1 Cal.5th at 1144 (illustrating formulation of exception).) The answer is in the affirmative.

The first Rowland factor is foreseeability of harm to the plaintiff. With respect to foreseeability “the court’s task in determining duty ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.’ ” (Kesner, supra, 1 Cal.5th at 1145.) It is not reasonably foreseeable that a third party’s would decide to use the vehicle and that an independent contractor would leave the keys on the vehicle. are necessary to make this harm result. Given the unlikelihood of such intervening factors occurring, the Court concludes that this conduct is not reasonably foreseeable.

The second Rowland factor is the degree of certainty that the plaintiff suffered injury. This factor is not in dispute. Because the boom lift was not secured, Juan died and Marcos suffered injuries.

The third Rowland factor is the closeness of the connection between the defendant’s conduct and the injury suffered. As suggested ante, the connection is not close. A property owner’s failure to secure a heavy-duty vehicle is not closely connected to harms suffered by individuals arising from unauthorized use of the same. Several unlikely intervening factors must transpire. Most notably, the independent contractor, typically the vehicle owner, must leave the vehicle unsecured and provide means for driving the vehicle.

The fourth Rowland factor is the moral blame attached to the defendant’s conduct. The Court attaches no moral blame to a property owner that fails to secure an off-site heavy-duty vehicle of another’s independent contractor. Blame falls more squarely on the independent contractor and, perhaps, the hiring entity of that contractor.

The fifth Rowland factor is the policy of preventing future harm. “The overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.” (Kesner, supra, 1 Cal.5th at 1150.) Similarly, property owners under these circumstances are not reasonably responsible for the injuries suffered.

The sixth Rowland factor is the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach. The extent of the property owner for liability for these acts would be prohibitively high. Even if this liability was simply limited to independent contractors hired to work on the property, this liability would still entail a substantial burden on property owners to monitor the activities of another’s independent contractor.

The seventh Rowland factor is the availability, cost, and prevalence of insurance for the risk involved. Others necessarily involved in this scenario — the independent contractor and the independent contractor’s hirer — presumably have insurance with coverage more suited to the harms that may arise.

In sum, none of the Rowland factors support the imposition of a duty on RBR for failing to secure the boom lift. Consequently, Plaintiffs’ negligence claim based on this act is meritless.

B. Causation

“In order for a plaintiff to satisfy the causation element of a negligence cause of action, he or she must show the defendant’s act or omission was a substantial factor in bringing about the plaintiff’s harm.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104.) Causation is a fact-specific issue for the trier of fact. (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832.) Causation becomes an issue of law where a reasonable person would “not dispute the absence of causality.” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

RBR argues that the sole cause of the incident is the boom lift itself along with Juan’s access to such. RBR dismisses Plaintiffs’ other allegations concerning the overgrown tree and failure to warn of the high voltage power lines because those allegations are purportedly not “directly linked to the harm” which Plaintiffs suffered. (Mot. at 9.) This argument is unpersuasive. The causation element of negligence does not rest on the conclusion that an act is the direct or exclusive cause of harm. (CACI 430-431.) The causation element rests on whether the act was a “substantial factor” in bringing about plaintiff’s harm. (Ibid.) In this case, these alleged breaches of RBR’s duty to exercise reasonable care logically could have resulted in harm to Plaintiffs. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal. 4th 71, 78.) Failure to maintain an overgrown tree on the Property could have concealed the powerline, caused Juan not to notice its existence, and make contact with the powerline as a result. Failure to warn of the high voltage powerline could have caused Juan to not notice or forget the existence of the powerline and make contact with the powerline as a result.

RBR also claims that the powerlines were not blocked by the tree and were open and obvious. In support, RBR cites deposition testimony of the Vinculums workers that performed the work on the AT&T tower. Guerrero testified that he could clearly see the power lines while he was on the site. (Guerrero Depo. p. 132.) Guerrero testified that nothing obscured or blocked the view of the powerlines and that the tree in question was next to, not above the powerlines. (Ibid.) Joel Lupercio (“Lupercio”), another Vinculums employee, testified that the powerlines were “visible” near the tree and that nothing obscured the power lines. (Lupercio Depo. p. 179.) RBR also submits a photograph of the site showing that the powerlines were located above the tree in question. (Ceja Depo. p. 118, Ex. 35.) This evidence serves as a prima facie showing that the overgrown tree did not cause Plaintiffs to suffer harm.

In response, Plaintiffs point to a myriad of irrelevant evidence. Michael Steven Morse, a biomedical and electrical engineer, opines in pertinent part that powerlines “become functionally invisible” because they are static. (Morse Decl. Ex. B.) This evidence has no bearing on whether the overgrown tree caused Juan to make contact with the powerline. Nemire, a human factors engineer, declares that Juan most likely was unaware of the hazards presented by the overhead powerlines. (Nemire Decl. ¶ 11.) Nemire, however, does not mention the overgrown tree. Plaintiffs point to deposition testimony wherein the deponents recall seeing the tree on the project site. (Garcia Depo, p. 19; Guerrero Depo. p. 126; Guitron Depo. p. 37.) But this testimony means nothing standing alone as it does not indicate the proximity of the tree to the powerlines or whether such proximity reasonably obstructed the view of the powerlines from on top of the boom lift. Finally, Plaintiffs present photographs of the project site that fail to accurately capture the proximity of the powerlines to the tree or the obstruction that this proximity purportedly caused.

In sum, Plaintiffs failed to raise a triable issue as to whether the overgrown tree caused Juan to make contact with the powerlines.

RBR presents argument that: “Without the boom lift, Juan Figueroa would not have had the capabilities to go so high in the air, as to make contact with a high voltage power line.” (Mot. at 9.) In essence, RBR contends that it possessed no duty to warn Plaintiffs of the high voltage power lines because the necessity of providing such a warning was not reasonably foreseeable — it only arises when an unauthorized individual decides to use a boom lift. The Court agrees. It is not reasonably foreseeable that RBR’s failure to provide Juan warnings about the powerlines would result in Juan suffering electrocution. This harm only results because of intervening factors such as the Vinculums’ employees leaving the boom lift keys on the boom lift and Juan’s unauthorized and untrained use of the same. As the Court noted ante, under the circumstances, a property owner does not owe a duty to secure such heavy-duty vehicles. Similarly, a property owner does not have the duty to provide warnings about powerline hazards which would only be triggered upon unauthorized taking of such vehicles.

In sum, RBR did not owe Plaintiffs a duty to warn of the powerlines.

CONCLUSION

RBR’s motion for summary judgment on the FAC is GRANTED.

Case Number: BC701989    Hearing Date: December 11, 2019    Dept: 32

HAROLD FIGUEROA, et. al.

Plaintiffs,

v.

AT&T CORPORATION, et. al.

Defendants.

Case No.: BC701989

Hearing Date: December 11, 2019

[TENTATIVE] order RE:

JLG’s Motion for Summary judgment or, in the alternative, summary adjudication

BACKGROUND

A. Complaint

This is a personal injury / wrongful death action filed by Plaintiffs Harold Figueroa (“Harold”) individually and on behalf of the Estate of Juan Diego Figueroa (“Estate”), Ana Lopez (“Ana”) individually and on behalf of the Estate, and Marcos Figueroa (“Marcos”) (collectively, “Plaintiffs”) against Defendants AT&T Corporation (“AT&T”); AT&T Mobility Wireless Operations Holdings Inc. (“AT&T Mobility”); All Access Equipment Rentals, Inc. (“All Access”); RBR Properties, Inc. (“RBR”); Vinculums Services, LLC (“Vinculums”); New Cingular Wireless PCS LLC (“Cingular”); JLG Industries, Inc (“JLG”); Joel Lupercio (“Lupercio”); Jorge Ceja (“Ceja”); Roberto Guerrero (“Guerrero”) (collectively, “Defendants”).

The operative pleading is the First Amended Complaint (“FAC”) filed on September 6, 2018. The FAC asserts causes of action for (1) strict product liability – failure to warn against All Access and JLG, (2) negligence – product liability against All Access and JLG, (3) negligent entrustment against AT&T, AT&T Mobility, Cingular, and Vinculums, (4) negligent hiring and retention against AT&T, AT&T Mobility, Cingular, and Vinculums, (5) premises liability against AT&T, AT&T Mobility, Cingular, and RBR, (6) negligent provision of required safeguards against AT&T, AT&T Mobility, Cingular, and Vinculums, (7) negligence – peculiar risk of harm against AT&T, AT&T Mobility, and Cingular, (8) wrongful death against Defendants, and (9) negligent infliction of emotional distress against Defendants. The FAC alleges in pertinent part as follows.

All Access and JLG manufacture and supply telescopic boom lifts. On or around January 30, 2018, AT&T, AT&T Mobility, Cingular, and Vinculums (collectively, “Telecommunications Companies”) left one of these boom lifts on real property located at 315 E. 87th Place, Los Angeles, CA 90003 (“Property”). Employees of the Telecommunications Companies had been using the boom lift to conduct maintenance on a cellphone transmission tower. The employees provided keys to the boom lift to Juan, a 22-year-old, and allowed Juan on various occasions to operate the boom lift despite Juan lacking qualifications to do so.

On the afternoon of January 30, 2018, Juan and his brother Marcos used the telescopic boom lift to trim an overgrown tree located at the Property. Because the sky started to darken, Juan decided to lower the boom lift. As he was lowering the lift, Juan made contact with a high-voltage powerline. Juan was subsequently electrocuted, caught on fire, and burned to death. Alongside Juan, Marcos frantically tried to stop Juan from burning. Eventually, the electric charge and heat of the fire became so unbearable that Marcos plunged 20-feet down onto the rooftop of a metal building, sustaining serious injuries to his legs and feet.

B. Cross-Complaints

On July 29, 2019, AT&T, AT&T Mobility, Vinculums, Cingular, Lupercio, Guerrero, and Ceja (“AT&T Defendants”) filed a Cross-Complaint against All Access and JLG for equitable indemnity, comparative indemnity, and declaratory relief.

On September 11, 2019, JLG filed a Cross-Complaint against the AT&T Defendants for indemnification, contribution, and declaratory relief.

On September 18, 2019, RBR filed a Cross-Complaint against the Telecommunications Companies for express contractual indemnity, equitable indemnity, breach of contract, contribution, and declaratory relief.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

OBJECTIONS

Plaintiffs’ objections to the Morgan and Young Declarations are OVERRULED.

JLG’s objections to the Bond, Morse, and Nemire Declarations are OVERRULED.

DISCUSSION

JLG moves for summary judgment on the FAC. The FAC asserts four causes of action against JLG: (1) strict product liability – failure to warn, (2) negligence – product liability, (3) wrongful death, and (4) negligent infliction of emotional distress. JLG notes that these causes of action are premised on two legal theories: (1) that JLG failed to provide adequate warnings of the dangers of operating the boom lift into high voltage powerlines (FAC ¶¶ 36, 48-49, 111) and (2) that JLG’s boom lift is defectively designed because it is not equipped with a proximate warning device (“PWD”) (FAC ¶ 39, 111).

A. Design Defect

Design defects appear in products that, although properly manufactured, are dangerous because they lack a critical feature needed to ensure safe use. (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180.) Design defects may be established under two theories: (1) the consumer expectations test and (2) the risk/benefit test. (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 214.)

1. Consumer Expectations Test

Under the consumer expectations test, a design is defective “if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30.) The rationale of this test is that “the purposes, behaviors, and dangers of certain products are commonly understood by those who ordinarily use them.” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232.) Therefore, in some cases, “ordinary knowledge of the product’s characteristics may permit an inference that the product did not perform as safely as it should.” (Ibid.)

“The consumer expectations test is reserved for cases in which the everyday experience of the products’ users permits a conclusion that the product’s design violated minimum safety assumptions, and is ‘defective regardless of expert opinion about the merits of the design.’ ” (Saller, supra, 187 Cal.App.4th at 1232.) Specifically, the test may apply to products of “common experience” encountered generally in everyday life as well as to products in “specialized use,” the safety characteristics of which the general public is not familiar with. (See Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 32.) In the latter circumstance, “if the expectations of the product’s limited group of ordinary consumers are beyond the lay experience common to all jurors, expert testimony on the limited subject of what the product’s actual consumers do expect may be proper.” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1120 fn. 3.)

Conversely, “[t]he consumer expectations test is inappropriate ‘when the ultimate issue of design defect calls for a careful assessment of feasibility, practicality, risk, and benefit,’ since ‘in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations in determining whether a product is defectively designed or not.’ ” (Saller, supra, 187 Cal.App.4th at 1233.)

“The critical question, in assessing the applicability of the consumer expectation test, is not whether the product, when considered in isolation, is beyond the ordinary knowledge of the consumer, but whether the product, in the context of the facts and circumstances of its failure, is one about which the ordinary consumers can form minimum safety expectations.” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1311-12.)

JLG argues that the consumer expectations test is inapplicable here. According to JLG, “it is beyond reasonable dispute that the consumer expectations test is not applicable in this case because evaluations of complex PWD technology and a determination on Plaintiffs’ ultimate claim that its absence creates a design defect ‘calls for a careful assessment of feasibility, practicality, risk, and benefit,’ of PWD technology.” (Mot. at 6.)

The Court disagrees. The consumer expectations test is not inapplicable simply because JLG’s rationale for not installing a PWD requires a multi-factored evaluation. Instead, JLG must show that the boom lift, in the context of the facts and circumstances of its failure, is not one about which ordinary users of the boom lifts can form minimum safety expectations. (See Pannu, supra, 191 Cal.App.4th at 1311-12.) The relevant circumstances of the boom lift’s alleged failure are unquestionably commonplace — the boom lift lacked a PWD and made contact with a live powerline. Because of the danger’s ubiquity and simplicity, ordinary users of the boom lift likely have minimum safety expectations concerning the boom lift’s electrocution hazards. As far as the evidence shows, the inclusion of a PWD may be a legitimate, commonly accepted minimum safety assumption of these users, similar to how an automobile driver views airbags in an automobile.

As Plaintiffs note, Campbell supports this conclusion by approving the use of the consumer expectations test where the plaintiff alleges defective design based on the lack of a particular safety device. In Campbell, the plaintiff sustained injuries while riding a bus. The plaintiff brought a lawsuit against General Motors, claiming that “General Motors’ failure to place a guardrail or handrail within her reach proximately caused the injury. Therefore, the bus was defective in design because it lacked a particular safety device that would have prevented the accident.” The California Supreme Court noted: “Unless very unusual circumstances exist, this type of claim presents a factual issue which can only be resolved by the trier of fact. ‘In the ordinary case the question becomes one of what would have happened if [the product had been] otherwise. This is of course incapable of mathematical proof, and a certain element of guesswork is always involved. Proof of the relation of cause and effect can never be more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we have observed those sequences on previous occasions.’ When a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved him; but the experience of the community is that with guards present people are commonly saved, and this affords a sufficient basis for the conclusion that it is more likely than not that the absence of the guard played a significant part in the drowning. Such questions are peculiarly for the jury.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 120.) The California Supreme Court further noted that “no expert testimony was required to enable the jury to reach a decision” as to the ordinary consumer expectations of the bus’s safety because “public transportation is a matter of common experience.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 120, 126.)

Similarly, here, Plaintiffs claim that the boom lift is defectively designed because it lacks a PWD — a particular safety device. Campbell instructs that this claim is normally a question of fact for the jury. Moreover, Campbell instructs that no expert testimony is necessarily required. In that case, General Motors presumably could have offered expert testimony or detailed studies explaining why a guard rail was infeasible or otherwise unwarranted. The California Supreme Court nonetheless made clear that the controlling factor is ordinary consumer expectations.

In reply, JLG contends that, even assuming this test applies, no hypothetical reasonable user of the boom lift would use these PWDs because of their unreliability. JLG’s contention is legitimate in the sense that a reasonable boom lift user presumably does not utilize dangerous tools. However, as explained post, Plaintiffs have raised a triable issue of material fact as to the PWD’s reliability.

2. Risk-Benefit Test

Under the risk-benefit test, a design is defective “if through hindsight the jury determines that the product’s design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.” (Kim, supra, 6 Cal.5th at 30.) The risk-benefit test requires the plaintiff to first demonstrate that the product’s design proximately caused his injury; in response, the defendant must then establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design. (Ibid.) Those factors include (1) the gravity of the danger posed by the challenged design, (2) the likelihood that such danger would occur, (3) the mechanical feasibility of a safer alternative design, (4) the financial cost of an improved design, and (5) the adverse consequences to the product and to the consumer that would result from an alternative design. (Ibid.) Under this test, the jury must consider the manufacturer’s evidence of competing design consideration, and the issue of design defect cannot fairly be resolved by standardless reference to the ordinary consumers’ expectations. (Saller, supra, 187 Cal.App.4th at 1233.)

JLG argues that the absence of the PWD is not a design defect under the risk-benefit test.

In support, JLG submits a declaration from John Derald Morgan (“Morgan”). Morgan has 57 years of experience in the field of electrical engineering and has qualified as an expert in federal and state court to testify on aspects of aerial work platform machinery, including the evaluation of PWDs. (Morgan Decl. ¶¶ 1-2.) Morgan states that he tested, studied, and wrote about the design, technology, and field applications of PWDs throughout his career. (Morgan Decl. ¶ 10.)

Morgan notes that PWDs “are intended to warn the equipment operator and any nearby personnel when any part of the equipment is closer to an energized overhead electrical power line than some preselected distance.” (Morgan Decl. ¶ 18.) Morgan opines that PWDs are based on a “fundamentally flawed concept.” (Morgan Decl. ¶ 14.) “[T]he electric field produced by power lines is neither constant nor consistent at a given distance from a power line and the field can be modified by many intervening factors as well as by the power line and lift device themselves.” (Ibid.) These disparate variables require repeated sensitivity recalibrations of the PWD when the machine is relocated or the boom lift reconfigured. (Morgan Decl. ¶ 22.) Making these adjustments results in work stoppage. (Ibid.) If recalibrated too broadly, the PWDs can give “false alarms” that causes users “to question the effectiveness of the device, view it as a nuisance, or perhaps ignore it completely.” (Morgan Decl. ¶ 18.) If recalibrated incorrectly or if the device malfunctions, the PWD increases the risk of electrocution hazard because the user is relying on an erroneous device. (Morgan Decl. ¶ 22.)

Morgan opines that the “flawed nature” of this technology and the “resulting inconsistency and inaccuracy” “have been determined and reaffirmed through extensive testing and analyses, with no significant improvement over the years.” (Morgan Decl. ¶ 12.) Morgan concludes that the PWD’s “increased risks outweigh any benefit to be derived from use of a PWD.” (Morgan Decl. ¶ 22.)

In response, Plaintiffs submit a declaration from Anthony E. Bond (“Bond”). Bond is a Principal Engineer at Haag Engineering Company. (Bond Decl. ¶ 3.) For over 14 years, Bond was a design engineer and engineering manger for an aerial device and crane manufacturing company. (Bond Decl. ¶ 4.) Bond’s structural designs and analysis included work with boom lifts. (Ibid.) Bond read the Morgan Declaration and notes that the literature relied upon by Morgan is, in certain cases, decades old. (Bond Decl. ¶ 9.) Bond notes that Morgan did not include a more recent 2014 Berkeley Engineering and Research, Inc. report (“BEAR Paper”) testing PWDs. (Bond Decl. ¶ 10, Ex. B.)

The BEAR Paper is six-pages long and prepared by two individuals — David Andres, an engineer in training, and Glen Stevick, a professional engineer with a PhD. (Bond Decl. Ex. B.) The BEAR Paper recounts how an agricultural worker died when the boom on his truck made contact with a rural power line while he was picking up bins. (Id. at 3.) The BEAR Paper’s intent is “to scientifically determine if a PWD would have helped” and, to this end, the authors “purchased one of the commercially available warning devices and conducted testing to evaluate its efficacy.” (Ibid.)

The authors recalibrated a PWD’s sensitivity at various ranges to determine its ability to detect a powerline and reported the results. (Bond Decl. Ex. B, p. 5.) They conclude that “[c]urrent powerline PWDs can be used with no special understanding or experience to effectively detect high voltage dangers. They can provide powerline presence warning well away from (50 feet) from the powerline.” (Id. at 6.)

Bond opines that “PWDs scientifically designed to mechanically detect the presence of high voltage powerlines, and warn users of such, are reasonably reliable and could help prevent electrocution hazards to operators and potentially save lives when installed on aerial equipment.” (Bond Decl. ¶ 15.)

JLG responds that the BEAR Paper lacks credibility and foundation to form the basis for a valid expert opinion. JLG argues that the BEAR Paper’s methodology for measuring the utility of PWDs is unreliable because it does not mirror the conditions of the subject incident.

The Court is unpersuaded. An expert’s opinion must be based on matter “that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” (Evid. Code § 801(b).) The “reasonableness of an expert’s reliance is a question of degree, and may well vary with the circumstances.” (People ex rel. Dept. of Transp. v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1085.) “Sometimes evidence of questionable reliability may be used to form an opinion.” (Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 861 disapproved on other grounds by People v. Ault (2004) 33 Cal.4th 1250.) For example, where “there is little or no direct evidence upon which the expert can base an opinion, the expert may have to turn to forms of circumstantial evidence on which he might not otherwise rely. In such circumstances, the necessity for the information dictates that courts accord to experts somewhat greater latitude in sources of information than might otherwise be the case.” (Buckwalter v. Airline Training Center (1982) 134 Cal.App.3d 547, 554.)

In this case, Bond has relied on a six-page research report. Bond and the BEAR authors both suggest that more recent data is difficult to find (see Bond Decl. ¶¶ 9-10), and the Morgan Declaration implicitly supports this conclusion. Given the report’s recency, relevancy, and methodical nature, the Court finds this evidence admissible.

JLG also argues that this BEAR Paper is valueless because it does not impugn Morgan’s expert opinion that PWDs are dangerous in the context of articulated boom lifts. The Court disagrees. The BEAR Paper supports Plaintiffs’ assertion that PWDs can be reliable devices in detecting and alerting for the proximity of powerlines and that PWDs are widely available in the marketplace. The BEAR Paper admittedly is not a perfect match — it does not discuss all the drawbacks mentioned by Morgan, incorporate a boom lift, or study the subject site. Nonetheless, the issue of this match goes more to the weight of Bond’s opinion, rather than its relevancy or admissibility.

B. Failure to Warn Defect

“Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) The elements of a failure to warn claim are (1) the defendant manufactured the product, (2) the product had potential risks that were known or knowable at the time of manufacture, (3) the potential risks presented a substantial danger when the product is used or misused in an intended or reasonably foreseeable way, (4) ordinary consumers would not have recognized the potential risks, (5) the defendant failed to adequately warn of the potential risks, (6) plaintiff was harmed, and (7) the lack of sufficient warnings was a substantial factor in causing the plaintiff’s harm. (CACI 1205.)

JLG argues that Plaintiffs’ failure to warn cause of action fails in two respects.

First, JLG argues that Plaintiffs’ failure to warn cause of action fails because the boom lift was not used as JLG intended, that is, by a qualified user. This argument is meritless. “[T]he law now requires a manufacturer to foresee some degree of misuse and abuse of his product, either by the user or by third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse.” (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 833.) “[T]he extent to which designers and manufacturers of dangerous machinery are required to anticipate safety neglect presents an issue of fact.” (Ibid.) Assuming arguendo that Juan was unqualified to operate the boom lift, the issue of whether this relinquished JLG of its duty to warn is a question of fact not suited for this motion.

Second, JLG argues that it provided adequate warnings regarding the boom lift’s electrocution hazards. JLG notes that it provides an Operation and Safety Manual (“Manual”) with each boom lift. (Young Decl. ¶ 11.) The Manual advises that an owner / operator “must not accept operating responsibility until this manual has been read, training is accomplished, and operation of the machine has been completed under the supervision of an experienced and qualified operator.” (Demers Decl. Ex. M., p. 15.) The Manual warns in pertinent part: “Electrocution Hazards [¶] This machine is not insulated and does not provide protection from contact or proximity to electrical current.” (Id. at 19.) JLG also notes that the boom lifts feature several decals warning of electrocution hazards on (1) the front, sides, and rear of the vehicle’s exterior and (2) the basket’s control console. (Demers Decl. Ex. L; Nemire Decl. Ex. C.) JLG submits uncontested evidence that these warnings complied with relevant OSHA regulations and ANSI/SAIA requirements and that these warnings conformed to industry norms. (Young Decl. ¶¶ 12-13.)

JLG has made a prima facie case that it complied with its duty to warn boom lift users of electrocution hazards.

In response, Plaintiffs submit a declaration from Kenneth Nemire (“Nemire”). Nemire has over 30 years of experience as an experimental psychologist and human factors engineer. (Nemire Decl. ¶ 2.) Nemire opines that there were inadequate warnings of an electrocution hazard on the boom lift. (Nemire Decl. ¶ 9.) In reaching this conclusion, Nemire focuses on the decal on the boom lift’s control console because “[h]uman factors research has shown that warnings are most effective when presented at the time and location when users need the information in the warning” and “warnings about electrocution hazards placed near the platform console would be of most use to the operator located in the platform.” (Nemire Decl. ¶ 9b.) Based on photogrammetric analysis, Nemire concludes that Juan “would not be able to see the subject decal when standing at the platform console, and close enough to operate the platform controls, because the platform console would have obstructed the standing operator’s field of view.” (Nemire Decl. ¶ 9d.) Further, Nemire states that “[i]t is unlikely that [Juan] would have noticed the warning decal” when mounting the basket because Juan “most likely would have been looking straight ahead and at the top of the platform control console,” not below the control console, as “the controls were most relevant to his expected task of operating the boom lift.” (Nemire Decl. ¶ 9e.)

Here, Plaintiffs are attempting to establish a triable issue of material fact by showing that a single warning decal in the basket was inadequate because of its poor placement. This attempt is unsuccessful. As JLG notes (Reply at 7), this argument erroneously focuses on just one of many warnings while ignoring the rest. While Nemire’s belief that this warning decal is most important may be valid, this belief ignores the fact that other warnings could still be adequate as a matter of law because they inform the boom lift user of the electrocution hazard. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 (“The requirement’s purpose is to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use.”) (Emphasis added).)

Each of the decals on the boom lift clearly depict in words and through pictures that electrocution may result from the boom lift contacting a powerline. The decals’ placements — on each side of the vehicle and in the basket — are logically arranged to apprise users of the boom lift of these hazards. Plaintiffs have not controverted JLG’s prima facie showing that each of these decals, in conjunction with the warnings in the operations manual, serve as an adequate warning of the boom lift’s electrocution hazards.

CONCLUSION

JLG’s motion for summary judgment is DENIED. JLG’s motion for summary adjudication of Plaintiffs’ failure to warn claim is GRANTED. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-55.)