Case Name: ?? Jimenez v. Gexpro, et al.
Case No.:??????? 2015-1-CV-277433
MOTION FOR SUMMARY JUDGMENT BY DEFENDANT O.C. JONES
On September 23, 2014, Plaintiff Robert Jiminez filed a form complaint alleging a single cause of action for products liability.? The sole paragraph of the form complaint that identifies defendant O.C. Jones & Sons, Inc. (?O.C. Jones?) is Prod. L-5, which states:
Count Two?Negligence of the following defendants who owed a duty to plaintiff (names): GEXPRO, REXEL, REXEL, INC., REXEL HOLDINGS USA, PHILIPS LIGHTING, PHILIPS GARDCO LIGHTING, and O.C.
(Complaint, ? Prod. L-5.)
The complaint also has an attachment that states:
DEFENDANT O.C. JONES AND SONS, INC., was the general contractor on a stadium repair project at DeAnza Community College, Cupertino, CA.? DEFENDANT O.C. JONES AND SONS, INC., contracted with PLAINTIFF ROBERT JIMINEZ?S employer, Cupertino Electric Inc., to do the installation and electrical work for the stadium, including the installation of the subject GARDCO lighting fixture.? Defendant negligently supplied a defective product to PLAINTIFF in the course of the contracted repair project.
(Complaint, Attachment-Prod.L-7.)
Defendant O.C. Jones moves for summary judgment on the ground that it did not place the light fixture in the stream of commerce and thus cannot be liable on a theory of products liability.
Defendant?s burden on summary judgment
?A defendant seeking summary judgment must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action. ?? ?The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.? ?(Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)
?The ?tried and true? way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff?s claim.? ?(Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ? 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) ??The moving party?s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff?s claim ?in order to avoid unjustly depriving the plaintiff of a trial.?? ?(Id. at ? 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
?Another way for a defendant to obtain summary judgment is to ?show? that an essential element of plaintiff?s claim cannot be established. ?Defendant does so by presenting evidence that plaintiff ?does not possess and cannot reasonably obtain, needed evidence? (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) ?Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.? ?(Id. at ? 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
Defendant?s request for judicial notice
Defendant O.C. Jones? request for judicial notice of the complaint is GRANTED.? (Evid. Code ?452, subd. (d).
Defendant O.C. Jones has met its initial burden
O.C. Jones moves for summary judgment, asserting that it cannot be liable for products liability because it is undisputed that it did not place the light fixture in the stream of commerce.? In support of its motion, O.C. Jones presents undisputed evidence that demonstrates that: Plaintiff was injured when he and Cupertino Electric?s foreman, Daniel Sweat, were installing 30-foot stadium lights at the DeAnza Community College Stadium and Track, when the final light fixture broke loose from the top of the light pole and fell on Plaintiff?s hard hat (see Pl.?s separate statement of undisputed material facts in opposition to Def.?s motion for summary judgment, undisputed material facts nos. (?UMFs?) 1-4, 6-8); Cupertino Electric was the purchaser of the Fradco lighting fixture (UMF 9); defendant Philips Lighting and PhillipsGradco Lighting manufactured or assembled the light fixture (UMF 10); defendants Gexpro, Rexel, Rexel, Inc. and Rexel Holdings USA sold the lighting fixture (UMF 11); O.C. Jones was not involved in any way with the sale, distribution, marketing, supplying or manufacturing of the subject light fixture nor has plaintiff alleged so in his complaint (UMF 12); Cupertino Electric delivered the stadium lights on its flatbed truck to the DeAnza stadium for installation and O.C. Jones did not deliver any of the stadium lights (UMF 13); the stadium lights were assembled offsite and the light poles were attached to the fixtures by the time Cupertino Electric transported them to the stadium for installation (UMF 14); Cupertino Electric, not O.C. Jones, preassembled the light fixtures (UMFs 15-17); the forklift operated by Mr. Sweat was not owned by O.C. Jones (UMF 18); and, O.C. Jones did not specify what type of light poles were to be used, but rather Cupertino Electric did as contained in their bid (UMFs 19-20).
O.C Jones meets its initial burden to demonstrate that it is not liable on a products liability theory.? (See O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 349 (stating that ?strict products liability should be imposed only on those entities responsible for placing a defective product into the stream of commerce?; also stating that ?[i]t is fundamental that the imposition of liability requires a showing that the plaintiff’? injuries were caused by an act of the defendant or an instrumentality under the defendant’s control?); see also Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 271 (stating that ?a manufacturer or other relevant entity in the stream of commerce is strictly liable in tort when a product it places on the market, ?knowing that [the product] is to be used without inspection for defects, proves to have a defect that causes injury to a human being??).)
Accordingly, the burden shifts to Plaintiff to demonstrate the existence of a triable issue of material fact.? (See Code Civ. Proc. ? 437c, subd. (p)(2).)
In opposition, Plaintiff has failed to demonstrate the existence of a triable issue of material fact.
In opposition, Plaintiff apparently concedes that it does not have any evidence regarding O.C. Jones? liability on a products liability theory; instead, Plaintiff contends that ?Defendant OCJ filed the instant motion for summary judgment under the faulty premise that Plaintiff?s sole cause of action against Defendant OCJ was products liability? [t]o the contrary, Plaintiff raised a cause of action against Defendant for general negligence, and as hirer of Plaintiff?s employer Cupertino Electric, Defendant OCJ is liable for physical harm for failure to exercise retained control over an independent contractor?s work.?? (Pl.?s memorandum of points and authorities in opposition to Def.?s motion for summary judgment (?Opposition?), p.1:23-28.)
As Defendant notes in reply: ?[t]he complaint limits the issues to be addressed at the motion for summary judgment.? ?(Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (also stating that ?[t]he rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond?); see also Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 (stating that ?[o]n summary judgment motions, the pleadings always define the issues?); see also Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 (stating that ?[i]t is well established that the pleadings determine the scope of relevant issues on a summary judgment motion?); see also Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493 (stating that ??[t]he?function?of the pleadings in a motion for summary judgment is to delimit the scope of the issues? and to frame ?the outer measure of materiality in a summary judgment proceeding??? [t]he materiality of a disputed fact is measured by the pleadings? which ?set the boundaries of the issues to be resolved at summary judgment??); see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 (stating that ?[t]he function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings? [t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action?); see also Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289 (stating that ?[t]he pleadings ?set the boundaries of the?issues?to be resolved at summary judgment?); see also Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250 (stating that ?[t]he materiality of a disputed fact is measured by the pleadings [citation] which ?set the boundaries of the issues to be resolved at summary judgment??).)? ?Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability?as alleged in the complaint;?that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.?? (Hutton, supra, 213 Cal.App.4th at p.493; see also Nativi, supra, 223 Cal.App.4th at p.290 (stating same).)? ?Furthermore, ?[t]he papers filed in response to a defendant?s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.??? (Hutton, supra, 213 Cal.App.4th at p.493, quoting County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 333.)? ?Similarly, ?declarations in opposition to a motion for summary judgment ?are no substitute for amended pleadings.? … If the motion for summary judgment presents evidence sufficient to disprove the plaintiff?s claims, … the plaintiff forfeits an opportunity to amend to state new claims by failing to request it.??? (Id., quoting County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 333; see also Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 (stating that ?[i]t would be patently unfair to allow plaintiffs to defeat UCI?’s summary judgment motion?by allowing them to present a ?moving target? unbounded by the pleadings?); see also Nativi, supra, 223 Cal.App.4th at p.290 (stating that ?summary judgment cannot be?denied?on a ground not raised by the pleadings?) (emphasis original), quoting Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)
In opposition, Plaintiff asserts that ?Plaintiff expressly indicated Defendant OCJ was liable to Plaintiff for other reasons aside from products liability in his Complaint under the theory of negligent exercise of retained control,? citing to paragraphs Prod. L-7 and Prod. L-7 Attachment.? (Opposition, p.8:16-19.)? However, Plaintiff is incorrect: the Prod. L-7 Attachment merely states ?Defendant negligently supplied a defective product to PLAINTIFF in the course of the contracted repair project.?? (Complaint, Attachment-Prod.L-7.)? Plaintiff?s allegations do not suggest anything other than a products liability theory, and certainly do not suggest that he was alleging a claim against O.C. Jones for negligent exercise of control.? As Plaintiff has failed to demonstrate a triable issue of material fact as to his alleged claim, summary judgment is GRANTED on this basis.
Regardless, even if the court were to consider Plaintiff?s argument that he has a viable cause of action for negligent exercise of control, the argument is without merit.? Plaintiff presents evidence that shows O.C. Jones did retain control with regards to the safety conditions at the jobsite.? (See Kemp decl., exh. G (?Babbit depo?), p.60:5-25, 61:1-25, 80:13-22.)? However,??a hirer is not liable to a contractor or a contractor’s employee merely because it retains control over safety conditions.?? (Tverberg v. Fillner Const., Inc. (2012) 202 Cal.App.4th 1439, 1446, citing Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 210 (itself stating ?because the liability of the contractor, the person primarily responsible for the worker?s on-the-job injuries, is limited to providing workers??compensation?coverage, it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite?).) ??The imposition of tort liability turns on whether the hirer exercised that retained control in a manner that?affirmatively contributed?to the injury.?? (Tverberg, supra, 202 Cal.App.4th at 1446 (emphasis original); see also Hooker, supra, 27 Cal.4th at p.210 (stating same).)? ?An affirmative contribution may take the form of actively directing a contractor or an employee about the manner of performance of the contracted work.?? (Tverberg, supra, 202 Cal.App.4th at p.1436, citing Hooker, supra, 27 Cal.4th at p.212, fn.3.)? ?When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs.?? (Id., citing Hooker, supra, 27 Cal.4th at p.215 and Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348.)? ?When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury.?? (Tverberg, supra, 202 Cal.App.4th at p.1446.)
Here, Plaintiff contends that O.C. Jones contributed to Plaintiff?s injury when O.C. Jones? ?foreman specifically knew that the installation could be dangerous and failed to stop or correct Plaintiff and his coworker from doing so.?? (Opposition, p.7:14-20, citing to Pl.?s additional undisputed material fact no. (?ADF?) 15.)? ADF 15 merely cites to Babbit?s deposition testimony wherein he states that ?all O.C. Jones employees have the right and duty to actually bring up anything they think, whether it is or is not unsafe.?? (ADF 15, citing Babbit depo, p.80:13.)? The cited deposition testimony does not refer to how O.C. Jones? ?foreman specifically knew that the installation could be dangerous and failed to stop or correct Plaintiff and his coworker from doing so.?? The only other ADFs that possibly support Plaintiff?s contention are ADFs 12 and 13, which cite to Jones? foreman?s deposition testimony in which he states that: he did not witness the installation of the pole prior to the accident ?[b]ecause whenever someone installs something like that, it was overhead and a chance of falling? [w]e stay away from the area just for safety?s sake of other personnel on the job? (Kemp decl., exh. F (?Jones depo?), p.63:3-11, cited by ADF 12); and he has an understanding of how the sling should be attached to the forklift but did not see how Mr. Sweat did it (id. at p.82:6-25).
However, this evidence does not demonstrate an affirmative contribution to Plaintiff?s injury; rather, it demonstrates at most that the foreman passively permitted the unsafe condition to occur but did not direct it to occur.? ?[P]assively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.?? (Tverberg, supra, 202 Cal.App.4th at p.1446 (also stating that ?the?failure?to exercise retained control does not constitute an affirmative contribution to an injury? [s]uch affirmative contribution must be based on a negligent exercise?of control? [i]n order for a?worker to recover on a retained control theory, the hirer must engage in some active participation?).)
Even if the court were to consider Plaintiff?s theory of liability which is outside of the pleadings, Plaintiff nevertheless fails to demonstrate the existence of a triable issue of material fact.? Accordingly, O.C. Jones? motion for summary judgment is GRANTED on this additional basis.
Plaintiff?s ?objections to Defendant?s separate statement of undisputed material facts? are improperly directed to the separate statement of undisputed material facts and not the underlying evidence.? Regardless, Plaintiff?s objections are OVERRULED.
Defendant O.C. Jones? objections are not the basis for the court?s ruling.