Case Number: BC721549    Hearing Date: February 13, 2020    Dept: 27



            Plaintiff Michael S. Newell filed this action against defendants Ronald Havner, Jr. and Leanne Havner (collectively, “Defendants”) for premises liability and negligence.  Defendants owned a residence with motorized gates.  (Undisputed Material Fact (“UMF”) Nos. 1-2.)  Plaintiff, a licensed general contractor, was working on Defendants’ property and noticed a gate was not rolling well.  (UMF No. 8.)  Plaintiff told Leanne Havner he could service the gate.  At the time of the incident, Plaintiff was at the property to repair the gate.  The gate was closed with Plaintiff was on the outside and Leanne on the inside.  They could not see each other.  (UMF Nos. 12, 13, 15.)  Plaintiff did not tell Leanne not to open the gate and did not warn her that he was going to put his hand on the roller mechanism on the top of the gate.  (UMF Nos. 16.).  Leanne punched the keypad to let Plaintiff back in.  (UMF No. 14.)  Plaintiff alleges that she activated the gate without notice to him, causing the gate to roll open while he had his hands on the rail near the wheels at the top of the gate and injuring his hand.  Defendants move for summary judgment on the grounds that Defendants did not breach any duty to Plaintiff.


In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilarsupra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilarsupra, 25 Cal.4th at p. 855.)

“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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (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.)


Plaintiff’s complaint alleges Defendants created a dangerous condition and breached their duty of care by activating the gate while he was repairing it and in a position to be injured if the gate were activated.  (Compl., ¶ 16.).  Defendants argue that because Plaintiff was a general contractor who knew about the risk of the gate and did not tell Leanne Havner not to open the gate, it was not forseeable he would put his hand on the roller without first warning her, and therefore they had no duty to Plaintiff regarding the gate.  But, Defendants acknowledge that as owners of the premises, they owed a duty “to exercise ordinary care in the management of such premises in order to avoid exposing persons to unreasonable risk of harm.”  (Brooks v. Eugen BurgerManagement Corp. (1989) 215 Cal.App.3d 1611, 1619.)  (Motion, pp. 6-7.)

Defendants also argue they did not breach their duty to Plaintiff because it was Plaintiff who “showed a want of ordinary care,” and the risk of the gate openning was obvious.  (Motion, p. 8.)  Although the facts here are largely undisputed, the inferences to be drawn from them are not.  In determining whether summary judgment papers show no triable issue of material fact, the Court considers “all inferences reasonably deducible from the evidence.”  (Code Civ. Proc., § 437c, subd. (c).)  The Court cannot grant summary judgment if there are conflicting inferences that a reasonable fact finder could draw from the undisputed facts.  (Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 967-963.)  A reasonable jury could infer that Leanne knew or should have known Plaintiff could be injured by an activated gate and should have acted more carefully in opening the gate.  A reasonable jury could infer that Plaintiff acted reasonable in putting his hands on the gate he was there to repair and did not have reason to expect the gate would open without a warning first.  The Court cannot concluded that no reasonable jury could find a want of ordindary care by Defendants.


            In light of the foregoing, the motion for summary judgment is DENIED.

Moving party to give notice.