Opinion
E033116.
7-24-2003
CATHERINE SHIPMAN, Plaintiff and Appellant, v. CONCRETE PAVING CONTRACTORS, INC., Defendant and Respondent.
Law Offices of Haddon & Lam and Mark R. Haddon for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Christopher D. Lockwood, and John S. Lowenthal for Defendant and Respondent.
INTRODUCTION
Plaintiff appeals from the trial courts entry of summary judgment in favor of defendant Concrete Paving Contractors, Inc. (Concrete) on plaintiffs complaint for personal injuries. She was injured when a metal gate she was pulling shut came off its track and fell on her. She contends she presented sufficient evidence to raise an inference that, the day before the incident, Concrete improperly reinstalled the gate after it damaged the track on which the gate traveled.
We affirm. We conclude that plaintiff failed to raise a triable issue of material fact that Concrete was negligent or caused her injuries, because plaintiff failed to support her position by admissible evidence.
FACTS AND PROCEDURAL HISTORY
A. Background
The incident occurred on the premises of plaintiffs employer, Elite Towing, after 5:00 p.m. on September 16, 1999, as plaintiff was leaving work. The gate secured Elite Towings towing yard, and was pulled shut each night. A metal safety stop, which was welded to the gates track, prevented the gate from falling off the track. After the incident, the safety stop was found lying on the ground next to the gate. The gate weighed 500 to 600 pounds. Plaintiff suffered injuries to her back, knees, and arm, and scarring on her neck and chin.
Before the incident, Elite Towing hired P.R.O. Construction (P.R.O.) as a general contractor to perform various work at Elite Towing. P.R.O. hired Concrete to perform paving work at Elite Towing, including work on curbs, gutters, and driveway approaches. Employees of Concrete were on Elite Towings premises on September 15, 1999, the day before the incident.
Plaintiff testified in her deposition that on September 15 the gate was off its track and on the ground. She understood that two men who were "mixing cement" near the gate were going to close the gate that day. She spoke to one of the men, whom she described as Hispanic and middle aged. He told her he was going to put the gate back on its track.
Neither of the men told plaintiff they had damaged the track, that anyone else had damaged the track, that they had taken the gate down, or that anyone else had taken the gate down. Plaintiff did not see anyone damage the track, remove the gate from its track, or place the gate back onto its track at any time. She said the gate was closed on September 16.
B. Plaintiffs Complaint
Plaintiffs complaint asserted causes of action for negligence and strict products liability against Concrete, P.R.O., and two other defendants. The complaint alleged that defendants negligently "designed, manufactured, constructed, assembled and sold the large metal security gate," and that the gate was unsafe for its intended use. It further alleged that the gate was "defective as to design, manufacture, and warnings."
C. Concretes Motion for Summary Judgment
In support of its motion for summary judgment, Concrete produced evidence that it did not remove or replace any gates at Elite Towing on September 15, and did not design, install, manufacture, or place warning signs on any gates at Elite Towing at any time. It relied on plaintiffs deposition and discovery responses, on the declaration of its foreman, Javier Rangal (Rangal), and on the deposition and declaration of its president, David Lee Wallace (Wallace).
Rangal was working at Elite Towing as Concretes foreman on September 15. He said no employee or agent of Concrete removed or installed any gate at Elite Towing on that date. He said Concretes employees "only conducted work on the curbs, gutters, and driveway approaches." Wallace stated in his declaration that Concrete did not design, install, manufacture, or place warning signs on any gate at Elite Towing at any time. He said Concrete is in the business of concrete paving, and "does not install gates or have anything to do with gates whatsoever."
D. Plaintiffs Opposition
In opposing Concretes motion, plaintiff maintained that employees of Concrete damaged the gates track on September 15, and removed and replaced the gate without reattaching the metal safety stop. She relied on her deposition testimony, on the declaration of P.R.O.s foreman, Robert Dresslar (Dresslar), and on the declaration of Elite Towings owner, Thomas McGraw (McGraw).
Dresslar stated that he was employed as P.R.O.s foreman on September 15. He further stated the following, in paragraphs 5, 6, and 7 of his declaration: "5. On September 15, 1999 I was informed that one of [Concretes] employees had struck the track that guides the gate which fell and caused Plaintiff to be injured while said employee was operating a tractor grading a driveway approach which would allow vehicle entry into Elite Towing. [P] 6. I personally asked the employee of [Concrete] if he had in fact hit and damaged the track of the gate which fell on Plaintiff and he confirmed that he had. [P] 7. I personally observed damage to the track of the gate caused by [Concretes] employee wherein said damage would not allow the gate to open or close properly." (Italics added.) The trial court sustained Concretes evidentiary objections to paragraphs 5, 6, and 7 of Dresslars declaration, based on hearsay and lack of foundation.
McGraw stated that he hired P.R.O. to work as general contractor at Elite Towing. In paragraph 5 of his declaration, he stated, "A foreman for [P.R.O.] informed me that [Concrete] was responsible for removing the metal stop." (Italics added.) The trial court also sustained Concretes hearsay objection to this statement.
E. The Order Granting Summary Judgment
Plaintiffs counsel failed to appear at the hearing on the motion, and the trial court ordered the entry of summary judgment in favor of Concrete, based on the moving and opposition papers. In a written order, the trial court reasoned that "plaintiff cannot identify who installed or removed the gate and has no evidence to demonstrate that [Concrete] had anything to do with the gate. [P] Additionally, [Concrete] cannot be held liable for strict products liability because it had nothing to do with the design, manufacture, installation, or warnings on the gate."
Plaintiffs counsel filed a motion for reconsideration. He argued that his absence from the hearing was excusable because it was based on health reasons. The trial court denied the motion.
DISCUSSION
A. Standard of Review
The party moving for summary judgment bears the burden of showing there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant meets this burden if it shows that one or more elements of the plaintiffs cause of action cannot be established, or a complete defense to that cause of action. Once the defendant meets its burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
"In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. [Citations.] The court must consider all evidence set forth in the parties papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.]" (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)
"Summary judgment shall not be granted . . . based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.) "Supporting and opposing affidavits or declarations shall be made . . . on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations." (Code Civ. Proc., § 437c, subd. (d).)
On appeal, "our review is de novo, and we independently review the record before the trial court." (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652.) "The trial courts stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale." (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
B. Negligence and Strict Products Liability
"Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury. [Citation.] Under the duty approach [to negligence], conduct is negligent when it creates an unreasonable risk of harm to some general class of persons." (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1837.)
"The general rule of strict products liability is set forth as follows: One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. [Citation.]" (6 Witkin, Summary of Cal. Law (2003 supp.) Torts, § 1243, p. 524.)
C. Issues Framed by Plaintiffs Complaint
For purposes of summary judgment, the pleadings provide the framework for the relevant issues. "A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers." (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.)
As noted, plaintiffs complaint purported to state causes of action for negligence and strict products liability. The first cause of action alleges that defendants "so negligently and carelessly designed, manufactured, constructed, assembled and sold the large metal security gate that it was dangerous and unsafe for its intended uses." The second cause of action alleges the gate was "defective as to design, manufacture, and warnings, causing the large metal security gate . . . to be in a defective condition that made [it] unsafe for [its] intended use."
Nowhere in plaintiffs complaint is it alleged that defendants negligently damaged or negligently reinstalled the gate. Indeed, both causes of action sound in strict products liability. Nevertheless, we assume for purposes of this appeal that plaintiff stated a cause of action sounding in negligence.
D. Plaintiff Failed to Raise a Triable Issue of Material Fact that Concrete Damaged or Negligently Reinstalled the Gate
Concrete produced evidence in the form of Rangals declaration that it did not remove or reinstall any gate at Elite Towing on September 15. It also produced evidence in the form of Wallaces declaration that it did not design, install, manufacture, or place warning signs on any gate at Elite Towing at any time. This evidence was sufficient to meet defendants initial burden of persuasion as to both of plaintiffs theories.
In response, plaintiff failed to produce competent, admissible evidence on the breach and causation elements of her negligence theory. Additionally, she did not attempt to produce any evidence on the strict products liability cause of action.
Plaintiff maintains that she presented sufficient evidence to raise an inference that on September 15 a Concrete employee damaged the gates track, took the gate down to repair the track, and put the gate back up without rewelding or reattaching the safety stop. She relies on her deposition testimony, on the declaration of her employers president, McGraw, and on the declaration of P.R.O.s foreman, Dresslar.
Plaintiff did not dispute that she did not see anyone damage, remove, or reinstall the gate on September 15, or at any other time. In her deposition, she merely testified that on September 15 a man who was "mixing cement" near the gate told her he was going to put the gate back up. Plaintiff presented no evidence that this man was an employee of Concrete. Moreover, plaintiff presented no evidence that this man or any employee of Concrete reinstalled the gate.
McGraw merely stated that a P.R.O. foreman told him that Concrete was responsible for removing the metal safety stop that had been welded to the gates track. Dresslar stated in paragraphs 5, 6, and 7 of his declaration that: (5) he was "informed" that one of Concretes employees damaged the gates track while operating a tractor; (6) an unidentified employee of Concrete told him that he [the Concrete employee] had damaged the track; and (7) he [Dresslar] observed the damage to the track which was caused by a Concrete employee.
The trial court properly sustained the evidentiary objections to paragraph 5 of McGraws declaration and paragraphs 5 and 6 of Dresslars declaration, on hearsay grounds. (Evid. Code, §§ 1200 & 1222, subd. (a).) The trial court also properly sustained the objection to paragraph 7 of Dresslars declaration on lack of foundation. (Evid. Code, § 702.)
Thus, the only competent evidence presented by plaintiff was that on September 15 the gate was down; the track for the gate was damaged; the gate was put back up; and, after the gate fell, the safety stop was noticed next to the gate on the ground. Plaintiff produced no evidence that Concrete was involved in any of this conduct.
In sum, Concrete produced competent, admissible evidence that it did not remove or replace the gate on September 15, the date plaintiff claimed the gate was negligently reinstalled without the safety stop. Plaintiff then failed to meet her burden of producing competent, admissible evidence that Concrete negligently damaged or reinstalled the gate or was strictly liable under products liability.
DISPOSITION
The judgment is affirmed. Concrete shall recover its costs on appeal.
We concur: McKinster Acting P.J., Richli J.