This case was last updated from Los Angeles County Superior Courts on 04/12/2020 at 12:45:46 (UTC).

JOHN ROTONDI ET AL VS AQUAREAL HOLDING CORP ET AL

Case Summary

On 05/11/2018 JOHN ROTONDI filed a Personal Injury - Other Personal Injury lawsuit against AQUAREAL HOLDING CORP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5450

  • Filing Date:

    05/11/2018

  • Case Status:

    Other

  • 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

STEPHEN I. GOORVITCH

 

Party Details

Plaintiffs and Petitioners

ROTONDI VICKI

ROTONDI JOHN

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

BERGER POOL PLUMBING INC.

AQUAREAL HOLDING CORP.

DOES 1-20

ROTONDI CONSTRUCTION INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BELCHER JOHN A. ESQ.

BELCHER JOHN ARTHUR ESQ.

Defendant and Cross Plaintiff Attorneys

CHAPMAN GLUCKSMAN DEAN ROEB & BARGER

SINCLAIR MURRAY M.

CLARK HILL LLP

WEINBERGER DAVID

ABUKASIS LEERAN

Defendant and Respondent Attorney

SINCLAIR MURRAY M.

 

Court Documents

Statement of the Case

1/21/2020: Statement of the Case

Witness List

1/21/2020: Witness List

Motion in Limine - MOTION IN LIMINE NO. 1 TO PRECLUDE PLAINTIFF EXPERT TESTIMONY AT TRIAL

1/22/2020: Motion in Limine - MOTION IN LIMINE NO. 1 TO PRECLUDE PLAINTIFF EXPERT TESTIMONY AT TRIAL

Exhibit List

1/22/2020: Exhibit List

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

1/24/2020: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Notice - NOTICE PLAINTIFFS COMPENDIUM OF EXHIBITS IN OPPOSITION TO DEFENDANT BERGER POOL PLUMBING INCS MOTION FOR SUMMARY JUDGMENT

12/23/2019: Notice - NOTICE PLAINTIFFS COMPENDIUM OF EXHIBITS IN OPPOSITION TO DEFENDANT BERGER POOL PLUMBING INCS MOTION FOR SUMMARY JUDGMENT

Memorandum of Points & Authorities

12/23/2019: Memorandum of Points & Authorities

Separate Statement

12/23/2019: Separate Statement

Reply - REPLY REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; MEMO. OF POINTS & AUTHORITIES

12/30/2019: Reply - REPLY REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; MEMO. OF POINTS & AUTHORITIES

Separate Statement

7/19/2019: Separate Statement

Memorandum of Points & Authorities

9/23/2019: Memorandum of Points & Authorities

Supplemental Declaration - SUPPLEMENTAL DECLARATION OF JOHN ROTONDI OPPOSITION TO DEFENDANT

10/2/2019: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF JOHN ROTONDI OPPOSITION TO DEFENDANT

Motion for Summary Judgment

10/22/2019: Motion for Summary Judgment

Separate Statement

10/22/2019: Separate Statement

ANSWER OF DEFENDANT AQUAREAL HOLDING CORP. TO COMPLAINT

8/6/2018: ANSWER OF DEFENDANT AQUAREAL HOLDING CORP. TO COMPLAINT

PROOF OF SERVICE SUMMONS -

6/12/2018: PROOF OF SERVICE SUMMONS -

CROSS-COMPLAINT OF BERGER POOL PLUMBING, INC.

7/2/2018: CROSS-COMPLAINT OF BERGER POOL PLUMBING, INC.

COMPLAINT FOR: 1. NEGLIGENCE ;ETC

5/11/2018: COMPLAINT FOR: 1. NEGLIGENCE ;ETC

65 More Documents Available

 

Docket Entries

  • 03/26/2020
  • DocketRequest for Dismissal; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 02/07/2020
  • Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 01/27/2020
  • DocketNotice of Settlement; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 01/24/2020
  • Docketat 10:00 AM in Department 32, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 01/24/2020
  • DocketNotice of Ruling; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 01/24/2020
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 01/22/2020
  • DocketExhibit List; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 01/22/2020
  • DocketMotion in Limine (No. 1 to Preclude Plaintiff Expert Testimony at Trial); Filed by Berger Pool Plumbing, Inc. (Defendant)

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  • 01/21/2020
  • DocketWitness List; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 01/21/2020
  • DocketStatement of the Case; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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78 More Docket Entries
  • 07/02/2018
  • DocketCROSS-COMPLAINT OF BERGER POOL PLUMBING, INC.

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  • 07/02/2018
  • DocketAnswer; Filed by Berger Pool Plumbing, Inc. (Defendant)

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  • 07/02/2018
  • DocketCross-Complaint; Filed by Berger Pool Plumbing, Inc. (Defendant)

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  • 06/12/2018
  • DocketProof of Service

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  • 06/12/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/12/2018
  • DocketProof-Service/Summons; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 06/12/2018
  • DocketProof-Service/Summons; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 05/11/2018
  • DocketCOMPLAINT FOR: 1. NEGLIGENCE ;ETC

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  • 05/11/2018
  • DocketComplaint; Filed by John Rotondi (Plaintiff); Vicki Rotondi (Plaintiff)

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  • 05/11/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC705450    Hearing Date: January 06, 2020    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

john rotondi, et al.,

Plaintiff,

v.

aqualreal holding corp., et al.,

Defendants.

Case No.: BC705450

Hearing Date: January 6, 2020

[TENTATIVE] order RE:

Defendant’s MOTION FOR SUMMARY JUDGMENT

BACKGROUND

Plaintiffs John Rotondi and Vicki Rotondi (collectively, “Plaintiffs”) allege that John Rotondi fell head-first into a drained pool that was eleven feet deep. Plaintiffs allege that John Rotondi was working as a general contractor at a property owned by Defendant Aquareal Holding Corporation (“Defendant Aquareal”). (Complaint, ¶ 10.) Plaintiffs allege that:

Defendant Berger Pool Plumbing was also working at the subject premises. Among other things, Defendant Berger Pool Plumbing was cutting an opening in what was to become the [J]acuzzi spillway. Defendant Berger Pool Plumbing was also pouring concrete. Due to defective workmanship, however, the concrete was too soft, and it gave way when John Rotondi stood on it. John Rotondi fell into a drained pool and sustained severe injuries.

(Id., ¶ 11.) John Rotondi asserts causes of action for negligence, and Vicki Rotondi asserts a related cause of action for loss of consortium, against Defendant Berger Pool Plumbing (“Defendant Berger Pool”). Now, Defendant Berger Pool moves for summary judgment, arguing only that: “No duty was owed by Berger Pool to Plaintiff to provide a safe walking surface in the area of the spillway where the accident allegedly occurred.” (Defendant Berger Pool’s Notice of Motion, at p.2:14-15.) Plaintiff opposes the motion, which is denied.

LEGAL STANDARD

“[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.)  

DISCUSSION

Defendant Berger Pool contends it did not owe a duty to Plaintiffs, because John Rotondi’s injuries were not foreseeable. The Court must balance several considerations:

[T]he major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, 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 the availability, cost, and prevalence of insurance for the risk involved.

(Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37, citing Rowland v. Christian (1968) 69 Cal.2d 108.) However, foreseeability is the dispositive criteria: “The first of the Rowland considerations is foreseeability. While we characterize foreseeability as a consideration, it is more than that. If the court concludes the injury was not foreseeable, there was no duty. There is no need to discuss the remaining considerations.” (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306.)

Defendant Berger Pool relies on John Rotondi’s deposition, during which he testified that the concrete along the edge of the pool crumbled under his feet, which caused him to fall into the empty pool. (Declaration of David Weinberger, Exh. #1, p. 74.) Defendant Berger Pool also proffers a declaration from Peter Gillette (“Gillette”), its president and owner. Gillette states that the spillway adjacent to the pool was not intended as a walkway. ((Declaration of David Weinberger, Exh. #3, ¶ 5.) This evidence is not sufficient to satisfy Defendant Berger Pool’s initial burden. While this evidence may demonstrate that the spillway was not designed to serve as a walkway, it does not address the foreseeability that someone would walk on the spillway during the construction project. Therefore, Defendant Berger Pool has failed to satisfy its burden.

In the alternative, even had Defendant Berger Pool satisfied its initial burden, Plaintiffs proffer sufficient evidence to give rise to a triable issue. Plaintiffs proffer a declaration from Rick Seyssel (“Seyssel”), who has worked on “countless” swimming pool projects as a project manager with “roughly 40 years of construction experience.” (Declaration of Rick Seyssel, ¶¶ 1, 10.) Seyssel states that the industry standard is that all ledges around a pool must be “strong enough to withstand the weight of . . . people as they step on them to jump into the pool or walk into the jacuzzi.” (Id., ¶ 10.) This evidence is sufficient to give rise to a triable issue whether it was foreseeable that someone would walk or stand on the concrete from which John Rotondi fell.

Defendant Berger Pool argues that the danger was obvious. Putting aside that Defendant Berger Pool did not rely on the “open and obvious” doctrine in moving for summary judgment, the obviousness of the condition is not relevant for purposes of the analysis. “[A]lthough the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (for example, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability, if the breach of duty was a proximate cause of any injury.” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122, emphasis original.) While the danger of falling into an empty pool is an obvious one, Defendant Berger Pool’s evidence does not demonstrate that the accident occurred because John Rotondi ignored the obvious danger of falling into an empty pool. Instead, Defendant Berger Pool’s evidence shows that John Rotondi fell because the concrete under his feet crumbled. Defendant Berger Pool has not proffered any evidence to suggest that the risk that the concrete on which John Rotondi stood would crumble was an obvious one, and that Berger Pool therefore had no duty to warn of it. To the contrary, Plaintiffs proffer evidence that the danger of poor workmanship was not obvious because Defendant Berger Pool used a jackhammer, rather than a diamond tipped rotary blade, to remove the top layer of concrete which weakened the concrete. (Declaration of John Rotondi, ¶¶ 15-17.)

Finally, Defendant Berger Pool argues that, as the general contractor for the renovation project, John Rotondi assumed any duty to provide a safe working environment. Defendant Berger Pool cites no authority for this proposition, especially in light of evidence that Defendant Berger Pool created the spillways at the behest of Peter Tong without involving John Rotondi. (Id., ¶¶ 14, 16.)

CONCLUSION AND ORDER

Defendant Berger Pool’s motion for summary judgment is denied. Defendant Berger Pool shall provide notice and file proof of such with the Court.

DATED: January 6, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court