Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC335951, James R. Dunn, Judge.
Castro & Associates, Joel B. Castro and Ruth Scott; Hinshaw & Culbertson, John W. Sheller and Wendy W. Chang for Plaintiffs and Appellants.
Schiff Hardin, Robert B. Mullen and P. Mark Mahoney for Defendant and Respondent.
RUBIN, ACTING P. J.
INTRODUCTION
In this construction defect case, plaintiffs Harry and Alvard Barseghian individually, and as trustees of the Harry and Alvard Barseghian Family Trust, appeal from a grant of summary judgment in favor of defendant Tremco, Incorporated. Plaintiffs’ third amended complaint seeks to hold defendant liable for damages suffered as a result of flooding caused by ineffective waterproofing in a subterranean garage. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case are largely undisputed. From 2002 to 2005, plaintiffs, owners of Harry’s Auto Body repair shop in Los Angeles, built an annex to their existing auto repair facility. The project consisted of a three-level structure, including an underground parking garage that is the subject of this appeal. Plaintiffs contracted with Construction Management Services (CMS) to schedule, coordinate, and oversee construction. Because the garage was built in an area with a high water table, waterproofing was an essential component in the construction. As a result, plaintiffs contracted with D7 Consulting (D7) to select a waterproofing contractor and waterproofing system for the garage, and to monitor installation of waterproofing products. Saddleback Waterproofing (Saddleback) was hired to install the waterproofing products and P.A.C. Construction Services, Inc. (PAC) was hired to install necessary concrete, rebar, and masonry.
CMS, D7, Saddleback, and PAC are defendants in the lawsuit. Only Tremco is a party to this appeal.
Tremco manufactures the bentonite-based waterproofing materials approved by D7 for use in the construction. Tremco did not directly enter into a contract with plaintiffs or any other entity involved in the construction because Saddleback purchased all the Tremco products used in the construction through a supplier.
Over the course of construction, two Tremco employees made periodic visits to the job site to assist Saddleback with installation questions. At some point, water leaks occurred in the garage. PAC, the concrete contractor, reportedly drilled through the Paraseal underlying the protection slab and some of the waterproofing materials had become prehydrated, compromising the membrane. Tremco representative Gus Pinon recommended Saddleback replace any prehydrated Paraseal and fill holes caused by PAC with a polyurethane grout. Eventually, Saddleback followed Pinon’s advice, and the damaged Paraseal was either replaced or repaired.
Sometime around June 2005, Saddleback quit working on the project due to a payment dispute with plaintiffs. At the time Saddleback left, waterproofing had not been completed because, according to Saddleback president Larry Goldenberg, grading had not been done; thus, there was no finished surface for them to effectively affix and seal the waterproofing materials. The last time Goldenberg was at the job site, he observed the Paraseal at the top grade in a “submerged condition with all kinds of ponds of water around the perimeter.” In his deposition, Saddleback’s field supervisor said that when he was told not to go back to the job site, he anticipated there would be water leaks in the walls because waterproofing was not complete.
In his deposition, Goldenberg specifically says that “termination” had not been complete. Although the record is unclear, it appears that termination involves attaching paraseal to a wall and then creating a seal so that water cannot activate the bentonite membrane. When bentonite is submerged, it becomes activated and according to Mr. Goldenberg, “[I]f it’s not in its final state in other words, if it’s not attached to the wall, it’s ruined and it would need to be replaced.”
Eventually, the garage flooded. On June 30, 2005, plaintiffs brought suit against all five defendants. As to Tremco, plaintiffs set forth causes of action for damages to real property, breach of warranty, negligence, and strict liability.
On June 27, 2008, Tremco moved for summary judgment on the grounds that there was no evidence of defective products or services for which it was responsible, or that Tremco caused the leaks. In support of the motion, Tremco produced evidence, including the expert declaration of Glenn Tofani stating that advice given by Tremco representatives on the installation and repair of waterproofing materials was helpful, appropriate, and sufficient to remedy damage to the waterproofing membrane. Tofani said that based on his site visits and review of documentation associated with the construction, he was “aware of no evidence that Tremco’s representatives... provided any advice or instruction which somehow caused or contributed to water leaks.” He opined that Saddleback’s decision to leave the project before completion or Mr. Barseghian’s decision to turn off the dewatering pumps was the likely cause of the leaks.
In opposing the motion, plaintiffs submitted the expert declaration of Steven Cohen (Cohen) a licensed contractor, attorney, and arbitrator for the California Contractors State License Board. Tremco objected to Cohen’s qualification as an expert arguing that he did not have any specific experience with waterproofing. While the court did not strike the entire declaration, it did sustain objections to numerous statements for a lack of foundation. The court observed that Cohen did not offer any evidence suggesting that Tremco’s advice caused the leaks; he merely concluded that triable issues on causation existed.
On July 3, 2008, the trial court granted summary judgment in Tremco’s favor, concluding there was no triable issue of fact as to causation.
DISCUSSION
A. Standard of Review
Summary judgment is proper when there are no triable issues of material fact and the moving party is subject to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of showing no triable issues exist. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
Undesignated statutory references are to the Code of Civil Procedure.
A moving party defendant is entitled to summary judgment if it is able to show the cause of action has no merit either because one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 849.) Once the defendant has met this burden, then the plaintiff must make a prima facie showing “ ‘that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ [Citation.]” (Ibid.) In doing this, the plaintiff may not rely merely upon the allegations in its complaint, but instead, must set forth the specific facts. (§ 437c, subd. (p)(2).) “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.” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.) The court must consider all evidence set forth in the parties’ papers, except that to which objections have been sustained. (§ 437c, subd. (c).)
Where a defendant moves for summary judgment against a plaintiff who would bear the burden of proof by a preponderance of evidence at trial, the defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely that not otherwise, he would not be entitled to judgment as a matter of law....” (Aguilar, supra, 25 Cal.4th at p. 851, fn. omitted.) Here, Tremco must show that a reasonable trier of fact would not find any material evidence suggesting Tremco more likely than not contributed to the flooding of the garage.
On appeal from a grant of summary judgment, we undertake a de novo review. (Hasso v. Hasso (2007) 148 Cal.App.4th 329, 338.)
B. The Trial Court Did Not Abuse Its Discretion When It Found Tremco’s Witness Tofani Qualified as an Expert
The thrust of plaintiffs’ argument is essentially that the declaration of defense expert Tofani was inadmissible on its central opinions because Tofani is not a manufacturer of waterproofing materials; thus, he was not qualified to testify on the standard of care on the advice rendered by Tremco’s representatives. We disagree.
In his declaration, Tofani said he was the president and principal engineer of a geotechnical and environmental consulting firm and is licensed in California as a geotechnical engineer, civil engineer, environmental assessor, engineering contractor, general building contractor, hazardous waste contractor, plumbing contractor, and electrical contractor. He also owns and operates a construction company that has installed subslab membranes for waterproofing or vapor mitigation purposes in over 2, 000 structures. He has over 27 years of experience, and routinely designs and oversees installation of waterproofing systems such as the one at issue in this case. He is familiar with Tremco’s Paraseal products and how they are installed in below grade construction projects.
Based on multiple site visits and review of numerous photographs, plans, engineering records, infrared testing reports, and deposition transcripts, Tofani was of the opinion that there was “no evidence of any defect, either in the design or manufacture, of any Tremco product that was installed as part of the waterproofing system....” After reviewing Tremco’s published instructions, including project waterproofing details, Tofani concluded that if Tremco’s instructions were followed by Saddleback and no other construction errors occurred, the Tremco Paraseal system would have successfully prevented water from entering the garage. He was “aware of no evidence that Tremco’s representatives, Gus Pinon or Reuben Rodriguez, provided any advice or instruction which somehow caused or contributed to water leaks in the garage.”
Evidence Code section 720, subdivision (a) provides: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The trial court has discretion to determine whether a witness is qualified as an expert and its determination will not be disturbed on appeal unless a manifest abuse of discretion is shown. (Stevens v. Roman Catholic Bishop of Fresno (1975) 49 Cal.App.3d 877, 882.) “[W]ork in a particular field is not an absolute prerequisite to qualification as an expert in that field.” (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 274.) The determinative factor of whether Tofani qualified as an expert is whether he “has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and ‘no hard and fast rule can be laid down which would be applicable in every circumstance.’ [Citation.] Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.)
Plaintiffs cite three cases where courts excluded expert testimony because the experts did not have practical experience in the field for which their testimony was sought. In Neudeck v. Bransten (1965) 233 Cal.App.2d 17, 19, the court held that a professor of mechanical engineering and author of a book on the laws of physics as applied to billiard balls, was not qualified to testify in an auto collision case because there was no showing that he had any actual experience investigating traffic accidents. Similarly, in Pearce v. Linde (1952) 113 Cal.App.2d 627, the court held that a medical expert was not qualified as a witness unless it could be shown that he was familiar with the standards required of physicians under similar circumstances. The court said that it was practical knowledge of what is usually done by physicians under circumstances similar to those that confronted the defendant that was important in determining the competency of the expert to testify as to the degree of care required. (Id. at pp. 629-631.) Finally, in Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, the court affirmed the exclusion of an expert who was to testify about whether a reasonably prudent builder would have used a retaining wall to prevent flooding that damaged a home. The excluded expert in Miller was a mechanical engineer trained in hydraulics and was familiar with flooding in hillside areas; however, he had no experience constructing homes and admitted he was unfamiliar with building practices. (Id. at p. 701.)
Here, unlike the experts in the cases cited by plaintiffs, Tofani had over 27 years of practical experience in the construction field, specifically working with subslab membranes. The issues discussed in his declaration and the advice given by Tremco’s representatives concern installation and repair, something the trial court reasonably could have found qualified Tofani as an expert. Based on the standard set forth above, the trial court did not abuse its discretion in finding Tofani qualified as an expert. Therefore, his opinion that Tremco did nothing to cause the leaks was sufficient to shift the burden to plaintiffs to establish a triable issue of fact on causation.
C. Plaintiffs Failed to Establish a Triable Issue of Fact on Causation
As discussed above in part A, ante, once Tremco showed that plaintiffs’ cause of action had no merit because one or more elements – here causation – could not be established, the burden shifted to plaintiffs to show the existence of a triable issue of fact. (Aguilar, supra, 25 Cal.4th at p. 849.)
In an attempt to establish a triable issue on causation, plaintiffs submitted a declaration by their own expert, Cohen. Cohen testified that he had both a general and electrical contractor’s license and was a licensed attorney in the State of California. He said he has provided litigation support and testified as an expert witness in construction defect cases for the past 22 years, and has been a licensed arbitrator with the California Contractors State License Board since 1985.
Tremco objected to Cohen’s qualifications as an expert because he had no specific experience with waterproofing. Tremco also objected to nearly every statement made in Cohen’s declaration. The court overruled the objection to Cohen’s qualifications, but sustained 9 of the 12 objections made by Tremco, including objections to those statements concerned with causation. For example, after visiting the job site and reviewing various documents in connection with Tremco’s summary judgment motion, Cohen was of the opinion that the evidence did not support Tofani’s conclusion that the leaks were likely caused by Saddleback’s failure to fully complete waterproofing or plaintiffs’ decision to turn off dewatering pumps. Cohen suggested that “[b]ecause Tremco was inexorably connected with overseeing the installation of its products, by virtue of its voluntary and intentional intervention, it could have at anytime raised concerns if it felt that stopping the dewatering could cause possible difficulties. There is no record of Tremco communicating any such objection to the termination of dewatering.”
The trial court sustained Tremco’s objection to this statement because it lacked foundation, was speculative, and assumed facts not in evidence. There was nothing presented that suggested Tremco was aware of plaintiffs’ decision to turn off the dewatering pumps. The court also sustained Tremco’s objection to Cohen’s statement that the infrared testing showed “affirmative proof of membrane failure, ” and that there were no instances in which any of the leaks were linked to a lack of installation of termination strips. The court pointed out that much of Cohen’s declaration read like attorney argument, and “[h]e does not purport to set forth an expert opinion based on any inspection of particular aspects of the job or opine as to just what advice by Tremco... caused the water leakage.” We review evidentiary objections using an abuse of discretion standard. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) We found no error here.
Because plaintiffs point to no admissible evidence showing that Tremco caused the leaks, and merely offer Cohen’s legal conclusion that “triable issues of fact exist as to the causes of action against Tremco” without providing evidentiary support, we conclude plaintiffs did not satisfy their burden in establishing a triable issue.
Because we conclude there is not a triable issue of fact as to causation, we do not need to discuss plaintiffs’ argument that there were triable issues on breach and duty of care.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: FLIER, J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.