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This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:23:27 (UTC).

MARCO GARCIA-MARTINEZ VS CITY OF VERNON ET AL

Case Summary

On 01/09/2018 MARCO GARCIA-MARTINEZ filed a Personal Injury - Other Personal Injury lawsuit against CITY OF VERNON. 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 Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9446

  • Filing Date:

    01/09/2018

  • 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

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

GARCIA-MARTINEZ MARCO

Claimant

STATE COMPENSATION INSURANCE FUND

Defendants and Respondents

CITY OF VERNON GAS AND ELECTRIC

4633 DOWNEY ACQUISTION LLC

DOES 1 TO 50

CITY OF VERNON

4633 DOWNEY ACQUISTION LLC - SUMMARY JUDGMENT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HAKIM SHARONA ESLAMBOLY ESQ.

ESLAMBOLY-HAKIM SHARONA ESQ.

Claimant Attorney

BROWN CHARLES H. II ESQ

Defendant Attorneys

WALKER & KIRKPATRICK

AUSTIN MARK ESQ.

WALKER JOHN JOSEPH

AUSTIN MARK JASON ESQ.

Other Attorneys

BROWN II CHARLES H. ESQ

 

Court Documents

Certificate of Mailing for

7/5/2019: Certificate of Mailing for

Minute Order

7/11/2019: Minute Order

Motion for Summary Judgment

7/16/2019: Motion for Summary Judgment

Declaration

7/16/2019: Declaration

PROOF OF SERVICE SUMMONS

5/4/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

5/4/2018: PROOF OF SERVICE SUMMONS

CITY OF VERNON'S CROSS-COMPLAINT FOR EQUITABLE, INDEMNITY, EXPRESS INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF AGAINST 4633 DOWNEY ACQUISITION, LLC

6/7/2018: CITY OF VERNON'S CROSS-COMPLAINT FOR EQUITABLE, INDEMNITY, EXPRESS INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF AGAINST 4633 DOWNEY ACQUISITION, LLC

SUBSTITUTION OF ATTORNEY

7/2/2018: SUBSTITUTION OF ATTORNEY

Proof of Service by Substituted Service

7/10/2018: Proof of Service by Substituted Service

NOTICE OF DEPOSIT OF JURY FEES BY DEFENDANT 4633 DOWNEY ACQUISITION, LLC

7/20/2018: NOTICE OF DEPOSIT OF JURY FEES BY DEFENDANT 4633 DOWNEY ACQUISITION, LLC

CIVIL DEPOSIT

7/20/2018: CIVIL DEPOSIT

ANSWER TO CITY OF VERNON'S CROSS-COMPLAINT BY 4633 DOWNEY ACQUISITIONS, LLC.; DEMAND FOR JURY TRIAL

9/13/2018: ANSWER TO CITY OF VERNON'S CROSS-COMPLAINT BY 4633 DOWNEY ACQUISITIONS, LLC.; DEMAND FOR JURY TRIAL

Declaration

4/16/2019: Declaration

Declaration

4/16/2019: Declaration

Declaration

4/16/2019: Declaration

Motion for Summary Judgment

4/16/2019: Motion for Summary Judgment

Opposition

6/21/2019: Opposition

NOTICE OF LIEN PURSUANT TO LABOR CODE 3850-3865; REQUEST TO BE PLACED ON PROOF OF SERVICE LIST FOR ALL PLEADINGS AND DISCOVERY

3/23/2018: NOTICE OF LIEN PURSUANT TO LABOR CODE 3850-3865; REQUEST TO BE PLACED ON PROOF OF SERVICE LIST FOR ALL PLEADINGS AND DISCOVERY

27 More Documents Available

 

Docket Entries

  • 01/11/2021
  • Hearingat 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 01/09/2020
  • Hearingat 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 12/23/2019
  • Hearingat 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/30/2019
  • Hearingat 13:30 PM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/16/2019
  • DocketDeclaration (Declaration of Charles Miller in Support of Motion for Summary Judgment); Filed by 4633 Downey Acquistion, LLC - SUMMARY JUDGMENT (Defendant)

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  • 07/16/2019
  • DocketSeparate Statement; Filed by 4633 Downey Acquistion, LLC - SUMMARY JUDGMENT (Defendant)

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  • 07/16/2019
  • DocketDeclaration (Declaration of Jason A. Kirkpatrick in Support of Motion for Summary Judgment); Filed by 4633 Downey Acquistion, LLC - SUMMARY JUDGMENT (Defendant)

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  • 07/16/2019
  • DocketDeclaration (Declaration of Jack Richard Cline, Jr. in Support of Motion for Summary Judgment); Filed by 4633 Downey Acquistion, LLC - SUMMARY JUDGMENT (Defendant)

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  • 07/16/2019
  • DocketMotion for Summary Judgment; Filed by 4633 Downey Acquistion, LLC - SUMMARY JUDGMENT (Defendant)

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  • 07/11/2019
  • Docketat 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary Judgment - Held - Motion Granted

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42 More Docket Entries
  • 06/07/2018
  • DocketSummons on Cross Complaint

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  • 05/04/2018
  • DocketProof-Service/Summons; Filed by Marco Garcia-Martinez (Plaintiff)

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  • 05/04/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/04/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/04/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 03/23/2018
  • DocketNOTICE OF LIEN PURSUANT TO LABOR CODE 3850-3865; REQUEST TO BE PLACED ON PROOF OF SERVICE LIST FOR ALL PLEADINGS AND DISCOVERY

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  • 03/23/2018
  • DocketNotice of Lien; Filed by State Compensation Insurance Fund (Legacy Party)

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  • 01/09/2018
  • DocketComplaint; Filed by Marco Garcia-Martinez (Plaintiff)

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  • 01/09/2018
  • DocketSUMMONS

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  • 01/09/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE/ PREMISES LIABILITY ;ETC

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Tentative Rulings

Case Number: BC689446    Hearing Date: September 22, 2020    Dept: G

GARCIA-MARTINEZ, et al. v. CITY OF VERNON, et al.

CASE NO.: BC689446

HEARING: 9/22/20

JUDGE: JOHN A. TORRIBIO

#9

TENTATIVE ORDER

Cross-Defendant 4633 Downey Acquisition LLC’s motion for summary judgment is DENIED.

Plaintiff to give NOTICE.

Cross-Defendant 4633 Downey Acquisition LLC (“4633 Downey”) moves for summary judgment pursuant to CCP § 437c.

Pleadings

This is a premises liability action arising out of Plaintiff Marco Garcia-Martinez’s electrocution by high voltage power lines while painting a building located at 4633 South Downey Road, Vernon, California owned by Defendant 4633 Downey Acquisitions, LLC. At the time of the accident, Plaintiff was working for Best Restoration Services, Inc. Plaintiff’s complaint asserts causes of action for:

1) Premises Liability (v. 4633 Downey)

2) Dangerous Condition (v. City)

On 6/7/18, Defendants filed their Cross-Complaint against Downey asserting causes of action for:

1) Equitable Indemnity

2) Express Indemnity

3) Contribution

4) Declaratory Relief

On 7/11/19, the Court granted 4633 Downey’s motion for summary judgment of Plaintiff’s complaint.

On 9/17/20, the Court granted City of Vernon’s motion for summary judgment on Plaintiff’s complaint.

Merits

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

Cross-Defendant 4633 Downey contends that City’s indemnity claims lack merit because: 1) there is no contractual express indemnity; 2) the Court’s grant of Downey’s MSJ extinguishes City’s equitable indemnity claim; 3) there is no possibility for a right to contribution as there will be no money judgment rendered against Downey; and 4) City’s Declaratory cause of action is without merit.

In opposition, City does not oppose 4633 Downey’s arguments regarding equitable indemnity and contribution. Instead, City believes express indemnity is clearly provided by Rule 16E; or alternatively, extrinsic evidence should be considered because the contract is subject to multiple interpretations.

Downey submits the following evidence:

· On December 1, 2016, 4633 Downey through its agent, Charles Miller, entered into a written contract with Best Restoration Services, Inc. ("Best Restoration"), an independent contractor to perform the exterior painting for the Building. Under the contract, the project would take twelve (12) days to complete and 4633 Downey agreed to pay a total of twenty-three thousand dollars ($23,000) for the work performed. (Defense Separate Statement (DSS) 21.)

· Downey relied entirely on Best Restoration to complete the work as well as to manage safety for its employees. (DSS 22.)

· Plaintiff, an employee of Best Restoration was injured on December 14, 2016. He had been working at the Building for approximately 2 weeks before he was injured. (DSS 23.)

· On July 11, 2019, the Court Granted the Motion for Summary Judgment filed by 4633 28 Downey, reaching the conclusion that 4633 Downey did not owe a duty of care to Plaintiff under the Privette doctrine as articulated by the case of Privette v. Superior Court (1993) 5 Cal.4th 689 and 2 Kinsman v. Unocal Corp (2005) 37 Cal.4th 659, 664. (DSS 38.)

· The Cross-Complaint and Utility Contract does not contain an express indemnity provision. (DSS 6; Cross-Complaint, Ex. A.)

· Rule 16E does not contain an express indemnity provision. (DSS 7.)

· The actual "wires" involved in this lawsuit are not those belonging to 4633 Downey but rather are the main transmission lines which fed between 25 to 40 customers which were in the exclusive province of the City. (DSS 13, 20, and 28.)

· Plaintiff’s injuries occurred when he made contact the City's high voltage transmission lines, which per the City's PMK, were not wires owned or maintained by 4633 Downey. (DSS 2, 13, 20, 31-37.)

Express Indemnity:

Express indemnity refers to an obligation that arises by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances. Express indemnity… is enforced in accordance with the terms of the contracting parties' agreement. In the context of noninsurance indemnity agreements, if a party seeks to be indemnified for its own active negligence, or regardless of the indemnitor's fault, the contractual language on the point must be particularly clear and explicit, and will be construed strictly against the indemnitee. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158; Crawford v. Weather shield Mfg., Inc. (2008) 44 Cal.4th 541, 552.)

The Utility Contract attached the Cross-Complaint provides:

Applicant has reviewed and inspected the applicable City of Vernon rates, rules and regulations for electric, water, and/or gas service(s) and agrees to comply therewith, and with any changes or modifications hereto which may be authorized from time to time by the City.” (Cross-Complaint, Ex. A.)

There is no express indemnity provision in the Utility Contract. However, because the Contract incorporates the City’s “rules and regulations,” this Court will also examine the rules. Section E of Rule 16 of the Electric Rules states, in part:

The Customer shall, at its sole risk and expense, furnish, install, inspect, and keep in good and safe working condition all electrical wires, lines, machinery, and apparatus of any kind or character which may be required, including all necessary protective appliances and suitable enclosure therefore, (1) for receiving electric energy from the lines of the City, regardless of the location of the transformers, Meters, or other equipment of the City and (2) for applying and utilizing such energy. . .

The City shall not be responsible for any loss or damage occasioned or caused by the negligence, want of proper care or wrongful act of the Customer, any of its agents, employees, or licensees, or any third party installing, maintaining, using, operating, or interfering with any such wires, lines, machinery, or apparatus.

Here, the court finds that Rule 16E contains an express indemnity provision that creates a duty on the part of 4633 Downey to hold City harmless for loss or damages caused by 4633 Downey’s agents or third parties interfering with City’s wires.

Accordingly, summary judgment is DENIED on the basis raised in the papers.

Although summary judgment was granted in favor of City on 9/17/20, this motion is not moot because City has not been dismissed from the case.

Case Number: BC689446    Hearing Date: September 17, 2020    Dept: C

MARCO GARCIA-MARTINEZ et al. v. CITY OF VERNON et al.

CASE NO.: BC689446

HEARING: 09/17/2020

JUDGE: OLIVIA ROSALES

#6

TENATIVE ORDER

Defendants City of Vernon and erroneously named City of Vernon Gas and Electric’s Motion for Summary Judgment is GRANTED.

Defendants are to file a proposed judgment within 20 days.

Moving Parties to give notice.

Background

This is a premises liability action arising out of Plaintiff Marco Garcia-Martinez (“Plaintiff”) being electrocuted by high voltage power lines while painting a building located at 4633 South Downey Road, Vernon, California (the “Premises”) owned by Defendant 4633 Downey Acquisitions, LLC (“Downey”). At the time of the accident, Plaintiff was working for Best Restoration Services, Inc. (“Best Restoration”). Defendants City of Vernon and erroneously named City of Vernon Gas and Electric (collectively the “Defendants”) allegedly created the dangerous condition on public property that caused the incident.

On July 11, 2019, the Court granted Downey’s motion for summary judgment of Plaintiff’s complaint.

On August 20, 2020, the Court granted Downey’s motion for determination of good faith settlement of Defendants’ cross-complaint in part.

On January 9, 2018, Plaintiff filed his operative complaint asserting two causes of action. Relevant for the purposes of this motion, Plaintiff asserts his second cause of action for statutory liability/dangerous condition of public property against Defendants.

On June 7, 2018, Defendants filed their cross-complaint against Downey and Roes 1 through 50 asserting four causes of action: (1) equitable indemnity; (2) express indemnity; (3) contribution; and (4) declaratory relief.

On August 30, 2019, Defendants filed a motion for summary judgment on three grounds: (1) no dangerous condition existed as a matter of law; (2) Plaintiff’s claim is barred by the primary assumption of risk doctrine; and (3) Defendants are immune from liability under Government Code section 835.4, subdivision (b).

On November 5, 2019, Plaintiff opposed.

On November 14, 2019, Defendants filed a reply and evidentiary objections.

This hearing was rescheduled to September 17, 2020, following the transfer of this action to this department and several continuances.

Although not subject of this ruling, the Court notes that Downey filed a motion for summary judgment regarding Defendants’ second and fourth causes of action (i.e., express indemnity and declaratory relief) in their cross-complaint against Downy. That motion is scheduled for a hearing on September 30, 2020.

Evidentiary objections

Defendants object to portions of Plaintiff’s evidence. Defendants’ objections are not numbered even though required by California Rules of Court, rule 3.1354(b), though the Court overlooks this error.

Defendants object to the Declaration of Boyce Oandasan (a forensic engineer) and exhibits 1 to 5 annexed to his declaration.

The Court rules on the objections to the Declaration of Boyce Oandasan as follows:

(1 – referring to ¶ 10 lines 10-12) overruled;

(2 – referring to ¶ 10 lines 12-16) overruled;

(3 – referring to ¶ 11 lines 17-19) sustained;

(4 – referring to ¶ 11 lines 20-22) overruled;

(5 – referring to ¶ 11 lines 22-24) sustained;

(6 – referring to ¶ 12 lines 26-27) overruled;

(7 – referring to ¶ 12 lines 27-1) overruled;

(8 – referring to ¶ 13 lines 2-4) sustained; and

(9 – referring to ¶ 13 lines 3-4) sustained.

The Court rules on the objections to the exhibits annexed to the Declaration of Boyce Oandasan as follows:

(1 – referring to Exhibit 1, i.e., Oandasan’s curriculum vitae) overruled;

(2 – referring to Exhibit 2, i.e., alleged specifications for laser scanner) overruled;

(3 – referring to Exhibit 3, i.e., photographs) overruled; and

(4 – referring to Exhibit 4, i.e., copy of 8 California Code of Regulations section 2824) sustained.

(5 – referring to Exhibit 5, i.e., photographs) overruled.

Notwithstanding that Defendants correctly argue authentication issues with Exhibit 4, the Court independently takes judicial notice of the issued regulation. (Evid. Code, § 452.) The regulation is accessible in various legal research sources, including WestLaw. (See Cal. Code Regs., tit. 8, § 2824.)

Legal authority

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

“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at pp. 844-845, quotation marks omitted.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)

A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Facts

Defendants’ separate statement

Relevant to this motion, Plaintiff generally does not dispute much of Defendants’ proffered 27 undisputed material facts (“UMF”). When Plaintiff does dispute Defendants’ facts (i.e., ¶¶ 21-23), Plaintiff does not provide as required an adequate explanation of the evidence that supports his position. (See Code Civ. Proc., § 437c, subd. (b)(1) [“Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.”]; see also Cal. Rules of Court, rule 3.1350(f)(2 [“An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”], emphasis added.) Additionally, when Plaintiff identifies a “dispute” his reasoning does not directly address the proffered material fact.

Plaintiff alleges that he was an injured by electrocution while working for Best Restoration as part of a painting job while he was on the roof of the Premises. (UMF ¶¶ 1, 13-14, 27.) As part of the paint job, Plaintiff did the work by laying on his stomach on the roof, hanging over the roof’s edge without any safety equipment, and spraying the side of the Premises with a paint gun and a six-foot long metal extension cord. (Id. ¶ 26.)

On the side of the Premises are City-owned and City-managed power poles that at the top has high-voltage power lines that are no closer than 10 feet from the Premises. (Id. ¶¶ 2-4.) There is no record of any other incident involving the power poles along the Premises. (Id. ¶ 5.) Typically, the general practice for work done near power lines is for the owner or contractor to contact Defendants to request that the power to be shut off before work is done. (Id. ¶ 7.)

Plaintiff was aware of the risk of the power line before he began the work, even suggesting to his supervisor that the power should be turned off. (Id. ¶ 15.) However, Plaintiff still started the work while knowing the power was still on. (Id. ¶ 17.) Plaintiff’s employer and the employer’s contractor were aware of the obvious risks of electrocution as well. (Id. ¶¶ 18-20.) Nevertheless, no one submitted a request to Defendants to shut down the power in the power lines nearby. (Id. ¶ 21.) Additionally, no one sought an encroachment permit or otherwise notified Defendants about the project before it began. (Id. ¶¶ 22-23.) An encroachment permit was necessary for this work because scaffolding was on the City sidewalk. (Id. ¶¶ 8-10, 25.)

Plaintiff’s additional material facts

Plaintiff sets forth his own 16 additional material facts (“AUMF”). Some of the additional facts are largely irrelevant for this motion’s purpose and some are legal conclusions that are improper for a separate statement’s purpose. (See AUMF ¶ 10.) Additionally, most of the material facts are derived from the declaration of Plaintiff’s forensic engineer and are improper legal conclusions that are not appropriate for a separate statement. (See e.g., id. ¶ 16.)

Discussion

On August 30, 2019, Defendants filed a motion for summary judgment on three grounds: (1) no dangerous condition existed as a matter of law; (2) Plaintiff’s claim is barred by the primary assumption of risk doctrine; and (3) Defendants are immune from liability under Government Code section 835.4, subdivision (b).

Whether a dangerous condition existed as a matter of law

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)

In this case, Plaintiff alleges that Defendants are liable due to a dangerous condition, per Government Code section 835. Plaintiff must prove: (1) the property was a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition or the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835.)

Defendants argue that no “dangerous condition” existed as a matter of law because (1) a condition is only “dangerous” under the law when it presents a substantial risk of injury when used with “due care;” and (2) Plaintiff and the other on-site parties did not act with due care in light of the known risks.

A dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).) “Ordinarily the existence of a dangerous condition is a question of fact. However, . . . whether a condition is dangerous may be resolved as a question of law if reasonable minds can come to but one conclusion.” (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704, citation and citation marks omitted.)

Here, the danger from touching an electric pole supplying power is an open and obvious danger that all of the relevant people in this case knew of the risk. (UMF ¶¶ 15-20.) Additionally, Defendants specifically identify Plaintiff’s own testimony whereby he acknowledges that risk. Whether Plaintiff “was in no position” to do anything about the risk because of his employee status and/or limited English proficiency does not otherwise mean that he had no knowledge of the risk. Plaintiff and the other parties could have exercised due care by requesting Defendants turn off the power, or alternatively by shutting down the power themselves. Additionally, Plaintiff’s method of his work—using a six-foot long metal extension rod—done while the power was on does not show an exercise of due care.

Accordingly, Defendants meet their initial burden and the burden shifts to Plaintiff.

In opposition, Plaintiff fails to address this issue. Specifically, Plaintiff’s argument that the power lines are closer than permitted by law does not otherwise show a triable issue of fact that Plaintiff exercised due care. Accordingly, Plaintiff cannot sustain his cause of action based on a violation of Government Code section 835.

Instead, Plaintiff argues that Defendants’ power poles constitute a dangerous condition pursuant to Government Code section 815.6 because their proximity to the Premises violates California Code of Regulations title 8 section 2824, subdivision (c)(1).

As a preliminary matter, the Court rejects Defendants’ argument that Plaintiff cannot rely on arguments to defeat summary judgment based on an unalleged theory in his complaint. (Opposition 5:5-24.) The complaint identifies certain government code sections applicable, but did not cite those provisions as an exhaustive list. (See complaint ¶ 22 [“including, but not limited to”].) Additionally, Plaintiff’s allegations in Paragraph 23 suggest a negligence per se theory based on Government Code section 815.6.

Government Code section 815.6 provides:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

Plaintiff specifically cites California Code of Regulations title 8 section 2824, subdivision (c)(1) as the “enactment” here, and this regulation requires that conductors shall comply with certain minimum clearance requirements.

Specifically, at issue here, Plaintiff argues that the minimum clearance should have been four feet but in some places it was one-quarter inch short according to his forensic engineer’s declaration. This violation would seem to establish a triable issue of fact based on a negligence per se theory. Defendants argue that the forensic engineer’s declaration is largely inadmissible because of a lack of foundation, especially regarding the nature of his inspection. (See reply 7:19-25.) While this questioning may succeed at a trial, for purposes of a motion for summary judgment, there is sufficient foundation for the conclusion that the clearance requirements were not satisfied. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187-189.) Additionally, even though the one-quarter inch difference might be within the margin of error, the Court must liberally construe the declaration and that issue again would more appropriate for trial.

Nevertheless, there is no triable issue of fact that Defendants themselves caused this regulatory violation considering Defendants inherited the power poles and the City-approved plans would have made the Premises comply with the clearance requirements. (See reply 6:3-15, Decl. of Megorden, pp. 3-4.) Plaintiff does not otherwise identify any evidence to support that Defendants themselves failed to comply with the mandatory duty.

Accordingly, the Court grants summary judgment on this basis.

Whether Plaintiff’s claim is barred by the primary assumption of risk doctrine

Defendants alternatively argue that Plaintiff’s claim is barred by the primary assumption of risk doctrine.

Primary assumption of risk occurs when, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular inherent risk of harm in the activity that caused the injury. Primary assumption of risk operates as a complete bar to the plaintiff's recovery. (Knight v. Jewett (1992) 3 Cal.4th 296, 308-309.)

Many conditions or actions, though dangerous in the abstract, are an integral or inherent part of certain activities. Defendants generally have no legal duty to eliminate or protect plaintiff against risks inherent in the activity. (Id. at pp. 315-316.)

Here, Defendants proffer evidence to show that Plaintiff assumed the risk of electrocution from his work, specifically Plaintiff advised his supervisor of the danger of completing the work with the power on, but still decided to do the work with the power on. (UMF ¶¶ 15-20.) Whether Plaintiff “was in no position” to do anything about the risk because of his employee status and/or limited English proficiency does not otherwise mean that he had no knowledge of the risk. Plaintiff and the other parties could have exercised due care by requesting Defendants turn off the power, or alternatively by shutting down the power themselves.

Therefore, Defendants meet their initial burden on this basis. Plaintiff argues that it rebuts the shifted burden because Defendants’ failure to comply with governing regulations increased the inherent risk involved in Plaintiff’s work. Plaintiff’s argument is generally unsupported by evidence, i.e., Plaintiff does not present any evidence how a quarter-inch clearance failure increased Plaintiff’s risk and/or how Defendants took any affirmative act with the placement of the power poles.

Accordingly, the Court alternatively grants summary judgment on this basis.

Whether Defendants are immune from liability under Government Code section 835.4, subdivision (b)

Defendants alternatively argue that Defendants are immune from liability under Government Code section 835.4, subdivision (b).

Where plaintiff establishes that the government entity had adequate actual or constructive prior notice of the dangerous condition to have protected against the harm, the entity may escape liability by proving the action it took, or its failure to take action, was reasonable, determined by considering the time and opportunity it had to take action and weighing the probability and gravity of potential injury against the practicability and cost of ameliorative action. (Gov. Code, § 835.4, subd. (b).)

The court does not need to reach this analysis since here, as discussed above, Plaintiff cannot sustain a claim based on Government Code section 835.

In any event, the Court notes that there was a reasonable system in place to address the potential hazard from the power lines, namely a shutdown request process, which Plaintiff and others involved in the work knew about but decided not to invoke. Defendants’ lack of action was reasonable considering it was unaware of the project at the time.

Conclusion

Defendants’ motion for summary judgment is GRANTED.

Defendants are to file a proposed judgment within 20 days.

Moving Parties to give notice.

Case Number: BC689446    Hearing Date: August 20, 2020    Dept: C

GARCIA-MARTINEZ v. CITY OF VERNON, ET AL.

CASE NO.:  BC689446

HEARING:  08/20/2020

JUDGE: OLIVIA ROSALES

#1

TENATIVE ORDER

Defendant 4633 DOWNEY ACQUISITIONS, LLC’s Motion for Determination of Good Faith Settlement is GRANTED in part.

Moving Party to give Notice.

This action arises out of Plaintiff Marco Garcia-Martinez (“Plaintiff”) being electrocuted by high voltage power lines while painting a building owned by Defendant 4633 Downey Acquisitions, LLC (“Defendant”).

On July 11, 2019, the Court granted Defendant’s motion for summary judgment of Plaintiff’s complaint.

Defendant now moves for a determination of good faith settlement and requests dismissal of Defendant City of Vernon’s (“City”) Cross-Complaint.

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court.¿ At the time of filing in many cases, the moving party does not know if a contest will develop.¿ If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the¿Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. That is to say, when¿no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.¿

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party.¿¿Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the¿nonsettlor¿who asserts that the settlement was not made in good faith.¿¿If contested, declarations by the¿nonsettlor¿should be filed which many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling constesting party.

(City of Grand View Terrace, supra, 192 Cal.App.3d at 1260-1261 (citation omitted).)

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” (IRM Corp. v. Carlson (1986) 179 Cal.App.3d 94, 104.)

CCP § 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (CCP § 877.6(c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (CCP § 877(a).)

“The party asserting the lack of good faith shall have the burden of proof on that issue.” (CCP § 877.6(d).)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, supra, 38 Cal.3d at 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Ibid.)

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at 499-500.)

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .).” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.) “Accordingly, a court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (Ibid.)

Plaintiff and Defendant have settled Plaintiff’s claims for $5,000. The Court finds that the settlement was made in good faith based on the Tech-Bilt factors, especially in light of the previous summary judgment ruling. As Defendant City points out, another key factor in evaluating whether a settlement was made in good faith is the settling tortfeasor’s potential liability for indemnity to joint tortfeasors. (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 869, 873.) However, “there can be no indemnity without liability.” (Prince v. Pacific Gas & Electric Co. (2009) Cal.4th 1151, 1159.) “A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is ‘wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be available’ against the injured party.” (Id. at 1158-1159.) The Court has ruled that Defendant is not liable to Plaintiff under the Privette Doctrine.

The motion is GRANTED in part. The Court declines to rule on Defendant City’s express indemnity cause of action on this motion.

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