On 03/21/2018 a Personal Injury - Other Personal Injury case was filed by HECTOR ROCHA against RED HAWK FIRE SECURITY in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
FIRE & SECURITY HOLDINGS
RED HAWK FIRE & SECURITY
COMMERCIAL BUILDERS INC.
DOES 1 TO 100
6/4/2018: CIVIL DEPOSIT
6/4/2018: DEFENDANT COMMERCIAL BUILDERS INC.S TO PLAINTIFFS COMPLAINT
6/4/2018: DEFENDANTS COMMERCIAL BUILDERS INC.S NOTICE OF POSTING JURY FEES
3/5/2019: Motion for Leave to File a Cross-Complaint
3/13/2019: Minute Order
5/13/2019: Motion for Summary Judgment
5/31/2019: Proof of Service by Substituted Service
7/11/2019: Ex Parte Application
7/11/2019: Minute Order
5/7/2018: ANSWER TO COMPLAINT BY DEFENDANT RED HAWK FIRE & SECURITY (CA), LLC
5/7/2018: RED HAWK FIRE & SECURITY (CA), LLC'S CROSS-COMPLAINT
4/16/2018: PROOF OF SERVICE SUMMONS
at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (to Continue Summary Judgment Hearing) - Not Held - Clerical ErrorRead MoreRead Less
at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (for an Order to Continue Hearing on Motion for Summary Judgment and to Continue Trial and Related Deadlines) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application for an Order to Continue Hear...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (for an Order to Continue Hearing on Motion for Summary Judgment and to Continue Trial and Related Deadlines); Filed by Troy Trevino, Inc. (Cross-Defendant)Read MoreRead Less
Declaration (DECLARATION OF ATTORNEY BRIAN BRANDT RE CROSS-DEFENDANT TROY TREVINO, INC. DBA IN AND OUT REMOVAL'S EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANT RED HAWK FIRE & SECURITY'S MOTION FOR SUMMARY JUDGMENT AND RELATED DATES; EX PARTE APPLICATION T); Filed by Hector Rocha (Plaintiff)Read MoreRead Less
Opposition (to Continue Summary Judgment Hearing); Filed by Red Hawk Fire & Security (Defendant)Read MoreRead Less
Substitution of Attorney; Filed by Troy Trevino, Inc. (Cross-Defendant)Read MoreRead Less
Answer (to Cross-Complaint); Filed by Troy Trevino, Inc. (Cross-Defendant)Read MoreRead Less
Proof of Service by Substituted Service; Filed by Commercial Builders Inc. (Defendant); Red Hawk Fire & Security (Defendant)Read MoreRead Less
Motion for Summary Judgment; Filed by Red Hawk Fire & Security (Defendant)Read MoreRead Less
RED HAWK FIRE & SECURITY (CA), LLC'S CROSS-COMPLAINTRead MoreRead Less
Answer; Filed by Red Hawk Fire & Security (Defendant); Fire & Security Holdings (Legacy Party)Read MoreRead Less
Cross-Complaint; Filed by Red Hawk Fire & Security (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Hector Rocha (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Hector Rocha (Plaintiff)Read MoreRead Less
Complaint; Filed by Hector Rocha (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC699103 Hearing Date: December 06, 2019 Dept: 5
red hawk fire & security, et al.,
Case No.: BC699103
Hearing Date: October 31, 2019
[TENTATIVE] order RE:
motion for summary judgment
Plaintiff Hector Rocha (“Plaintiff”) asserts a cause of action against Defendant Red Hawk Fire & Security (CA), LLC (“Defendant”) following an industrial accident on May 11, 2016. At the time of the accident, Plaintiff was working for In and Out Removal Services (“In and Out”), which was a demolition subcontractor on a project to remodel office space. The general subcontractor on the project, Commercial Builders, Inc. (“CBI”), hired Defendant to disconnect and empty a fire suppression tank at the office space. Plaintiff alleges as follows:
“Plaintiff observed employees of [Defendant] emptying the tanks.”
- “After being told by [CBI] that the tanks were empty and ready for removal, the tanks were unstrapped and removed to the plaintiff’s employer’s yard.”
“Thereafter, Plaintiff opened a valve on one of the tanks.”
“The subject tank had not been properly and completely emptied resulting in gas shooting out of the tank and knowing it over onto [Plaintiff’s] foot . . . .”
Now, Defendant moves for summary judgment on Plaintiff’s complaint for negligence. Defendant argues primarily that it owed no duty to Plaintiff because it was not hired to empty the tank at issue, and that Plaintiff is exclusively responsible for his injuries because the tank had a pressure gauge indicating that it was not empty and Plaintiff was expressly warned by a co-worker that the tank was full before he opened the valve. Plaintiff opposes the motion, which is granted.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)
To state a claim for negligence, Plaintiff must show that Defendant had a duty to Plaintiff, that Defendant breached that duty, and that the breach caused damages to Plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Defendant argues that it owned no duty to Plaintiff because it was not hired to empty the tank at issue.
Defendant proffers the subcontract agreement between CBI and Defendant, which states that Defendant will perform work as set forth in work orders from CBI. (Defendant’s Evidence in Support of Motion for Summary Judgment, Exhibit H.) Defendants also rely on a declaration from Renee Collins, its “National Operations Director, West,” which states: “The contract possesses a specific process pursuant to which [Defendant] must be engaged. The process requires [CBI] to issue a Work Order.” (Declaration of Renee Collins, ¶ 3.) Collins states that “[CBI] never issued a Work Order for [Defendant] to empty the tanks at the jobsite located at 5515 E. La Palma Avenue, Anaheim, CA.” (Ibid.)
Defendant also relies on a declaration from Hector A. Navarro (“Navarro”), its “Critical Infrastructure Systems Manager.” Navarro states that to empty the contents of fire protection tanks, Defendant retrieves the tanks from their location, and takes them to “a facility specializing in the recovery of the agent used in the tank.” (Declaration of Hector A. Navarro, ¶ 4.) Navarro states that Defendant does so because it “is required to comply with environmental laws and manufacturer’s guidelines. The gas cannot be discharged into the atmosphere. Rather, when tanks are emptied, the gas must be recaptured in a mandated process designed to minimize any discharge of the gas into the atmosphere.” (Id., ¶ 3.) Based upon this declaration, Defendant argues that even if it was retained to empty the tanks, it would not have done so at the job site.
Defendant relies on Plaintiff’s deposition testimony. Plaintiff admitted that he never discussed with any of Defendant’s employees whether the tanks were emptied. (Defendant’s Evidence in Support of Motion for Summary Judgment, Exhibit K, pp. 42-43.) Specifically, Plaintiff testified as follows:
Q: So did you ever discuss emptying the tanks with anyone from [Defendant]?
Q: Did anyone at [Defendant] ever tell you that the tanks were empty?
(Ibid.) Defendant’s evidence is sufficient to satisfy its prima facie burden, shifting the burden to Plaintiff.
Plaintiff argues that Defendant was responsible for emptying the tanks because he asked CBI to call a company to deal with the tanks, after which he saw Defendant’s employees at the job site and the tanks had been disconnected and moved. (Plaintiff’s Separate Statement of Undisputed Facts, ¶¶ 41-42.) However, Plaintiff has no evidence that Defendant’s employees were present for that purpose or that they had disconnected the tanks. Similarly, Plaintiff argues that Defendant’s employees must have performed the work without a work order. Plaintiff cannot raise triable issues of material fact by citing inferences “derived from speculation, conjecture, imagination, or guesswork.” (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161.) Nor does Plaintiff proffer any evidence that Defendant’s employees told him the tanks were empty, as discussed above. Indeed, Plaintiff testified he was convinced the tanks were empty because one tank had a hole in the bottom and someone from CBI told him that the tanks had been emptied. (Declaration of Brian Brandt, Exh. A, pp. 67-68, 72.) None of this establishes that Defendant was responsible for emptying the tanks. Therefore, the Court grants Defendant’s motion for summary judgment.
In the alternative, the Court grants Defendant’s motion for summary judgment because Plaintiff was entirely responsible for his injuries. As discussed, there is no evidence that any of Defendant’s employees informed Plaintiff that the tanks were empty. Plaintiff testified that he made the decision to remove the tanks to the property of “In and Out.” (Plaintiff’s Separate Statement of Undisputed Material Facts, ¶ 44.) Plaintiff testified that he thought the tanks were empty because there was a hole in one tank, and someone from CBI said the tanks were empty. However, he did not check with any of Defendant’s employees, who he alleges were responsible for emptying the tanks. More important, it is undisputed that the tank had a pressure gauge on it. (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, ¶ 18.) It is undisputed that “the pressure gauge showed the tank was fill when In and Out took it from the jobsite back to its yard.” (Id., ¶ 19.) It is undisputed that Ramiro Balbuena, who was present at the time of the accident, “told [Plaintiff] that the Tank was full and that [Plaintiff] should not attempt to open it.” (Id., ¶ 20.) It is undisputed that Troy Trevino, Jr., who also was present at the time of the accident, confirmed that Balbuena “[had] told [Plaintiff] that the Tank was full and expressed that [Plaintiff] should leave the tank alone.” (Id., ¶ 21.) Plaintiff opened the tank anyway. Therefore, the Court finds as a matter of law that Plaintiff is entirely responsible for his own injuries as an alternative basis for granting Defendant’s motion.
CONCLUSION AND ORDER
Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.
DATED: December 6, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court
 Renee Collins also states that Defendant did not receive a work order to perform any work “in or around February or March 2016,” and that Defendant “did not agree to empty the tanks at the jobsite . . . in or around February or March of 2016.” (Declaration of Renee Collins, ¶ 3.) These portions of the declaration are not relevant because the accident occurred in May 2016.