Summary Judgments are both expensive and difficult to obtain, particularly following the enactment of SB 688 which lengthens the notice period to 75 days. Clients are often understandably hesitant to incur the expense in the face of uncertainty. We have found, however, that the creative use of Motions for Summary Judgment can be an extraordinarily effective tool in terminating litigation in a variety of factual and legal scenarios. Indeed, many of our successes have been in high exposure cases that involve catastrophic damage claims in what initially appeared to be fact-driven scenarios not susceptible to attack by way of Summary Judgment.
The following are selected examples from a variety of practice areas:
- Privette/ Toland/ Zamudio Theories
Obtained summary judgment in a catastrophic burn case, where the client’s foreman had admitted mistakenly informing plaintiff that the gasoline vapor recovery system was not connected to the underground storage tank being relined. Plaintiffs received very serious burn injuries as a result of an explosion that occurred in an underground gasoline storage tank during the course of a project to bring the tanks into compliance with federal standards. Plaintiffs were employees of the subcontractor. When plaintiffs began the test for pin holes in the lining, a spark ignited the gasoline vapors causing an explosion and fireball that enveloped them. Investigation and discovery revealed that gasoline vapors from an adjacent gasoline tank that remained in service during the project migrated into the subject tank. The total damages claimed by one plaintiff was in excess of $17.0 million; the second plaintiff had special damages in the mid-six figures.We moved for summary judgment on the following theories: the client could not be vicariously and/or directly liable given the bar against a peculiar risk claim and the lack of control required by case law; even if plaintiffs were able to establish a duty and breach, it is undisputed that neither plaintiffs nor their employers relied on any misrepresentation by the client; even if plaintiffs could make a prima facie case of liability, the chain of causation was broken as a result of plaintiffs’ unforeseeable extraordinary negligence in failing to follow the applicable federally and state mandated confined space entry procedures. The grant of summary judgment was upheld by the Third District Court of Appeal.
- Privette/ Toland/ Zamudio Theories
Plaintif was employed as a laborer on a residential project, by a framing subcontractor. He and three other employees were pulling a truss into place when the accident occurred. Plaintiff and his co-employees were standing on the “top plate” (the top) of an interior wall on the second story of a single family home, near an open staircase. He was using his claw hammer to help pull the truss into its position when the hammer slipped out from under the truss, causing him to lose his balance, and fall backward into the open staircase area to the floor below. He sustained a closed head brain injury and was rendered paraplegic as a result of the fall. Plaintiff claimed damages in excess of $10,000,000. We obtained summary judgment for the clients based upon a Privette/Toland/ Zumudio theory.
- Privette/ Toland/ Zamudio Theories
Plaintiff was injured in a workplace accident, while working for a framing subcontractor, at one of Grupe Construction Company, Inc.’s developments. The accident occured as plaintiff and co-workers were attempting to raise a two story framed wall. The laborers could not hold the wall and it fell. Plaintiff was trapped under the wall and resultantly died.No material facts concerning Grupe’s relationships with the parties involved in the accident were at issue. Witnesses testified at deposition that Grupe personnel were not at the site of the accident when it occurred. We moved for summary judgment on the ground that Grupe did not act affirmatively to cause the accident and, consequently, could not be directly liable for plaintiff’s death. The court granted summary judgment for Grupe.
- Privette/ Toland/ Zamudio Theories
A subcontractor’s employee was fatally injured while working at a subdivision being developed by Bright Development. Plaintiff was the worker’s mother. Discovery established that Bright exercised no control over any aspect of the work performed by the subcontractor or its employees. Further, Bright did not direct or exercise any control over the specific means and methods the subcontractor utilized to perform its duties. The worker was solely the employee of the subcontractor, and he was under its sole supervision. We successfully moved for summary judgment, on behalf of Bright, on these grounds.
- Shifting the Burden
After a fuel spill from a tank on his farm, plaintiff filed suit alleging negligence, public nuisance, and private nuisance. Our client had delivered 2,000 gallons of fuel to the farm three weeks prior to the spill. Plaintiff alleged that a sight guage valve was left open by our client’s employee who delivered the fuel, resulting in the spill of 2,000 gallons of fuel onto the ground, and eventually into the groundwater located a short distance from the Sacramento River. The spill was not discovered until the taste and odor of fuel was detected in the farm’s tap water. This contamination, coupled with the potential for the contamination to impact the nearby Sacramento River, created the possibility of enormous exposure for the defense.Discovery was conducted, resulting in a credibility battle between plaintiff and the employee who delivered the fuel. Plaintiff was adamant that no one other than the driver had any reason to open the sight gauge valve, even though a number of employees and family members admittedly had access to and used the tank. The driver testified that he did in fact close all valves after delivery of the fuel. We moved for summary judgment based on the testimony of the delivery driver that showed no negligence on his part. The burden shifted to the plaintiff, whose testimony was based on speculation only and the admission that others had access to the valve. The Court found the driver’s testimony credible and absent equally credible evidence to the contrary, that testimony was sufficient to overcome any “factual dispute.” Plaintiff failed to meet his burden of proof. Defendant’s Motion for Summary Judgment was granted and later upheld on appeal in the Third District Court of Appeal.
- Shifting the Burden
Plaintiff filed suit against her propane gas supplier after a fire occurred at her rural residence in Midpines, California, alleging breach of contract and negligence. The complaint alleged that defendant’s acts and omissions in servicing two water heaters at plaintiff’s residence resulted in the fire that destroyed the residence, damaged plaintiff’s business and personal property, and caused her severe emotional distress. The evidence revealed that our client’s employee had serviced plaintiff’s two hot water heaters several weeks before the fire and plaintiff alleged that he should have noticed evidence of improper combustion and/or improper venting at the time of his work. Plaintiff contended that because defendant had serviced the residence for many years, a “Gas-Check” [or equivalent] inspection should have been conducted and that it would have revealed a variety of unsafe conditions and potential code violations. Plaintiff sought in excess of $2.0M in property damage to the residence and her personal property.We moved for summary judgment based on a lack of evidence regarding causation of the fire. We argued that there was no admissible evidence supporting plaintiff’s claim that an inspection and cleaning of her hot water heaters almost a month before the fire was a substantial factor in the cause of the fire. We relied upon the shifting of the burden of proof as outlined in Aguilar v. Atlantic Richfield so that the burden shifted to plaintiff to prove that it was more likely than not that the actions of defendant’s serviceman caused the fire. The court found that she was unable to do so and granted summary judgment.
- Premises Liability/ Shifting the Burden
In a premises liability action, plaintiff’s complaint alleged a single cause of action against our client, based on a dangerous condition in the form of a hole in the parking lot. No photographs were taken at the time. The parking lot was repaved at some time after the accident, and the hole no longer existed. We moved for summary judgment on the ground that plaintiff did not have the evidence to establish her claim. After reviewing the status of the law on premises liability and trivial defects, the court found that we had met our burden of proof that the defect in the asphalt was “trivial,” and did not constitute an unreasonable dangerous condition of property. Further, even if it was not trivial, plaintiff had provided no evidence to dispute the contention that our client neither knew, nor should have known, about the alleged hole.We asserted procedural arguments in our reply papers, attacking the sufficiency of plaintiff’s opposing separate statement. The court ruled that plaintiff failed to submit any evidence to support her dispute of our separate statement of undisputed facts, thus the facts were treated by the court as undisputed. In the absence of any disputed issues of material fact, the court granted the motion for summary judgment.
- Shifting the Burden
In this case, plaintiff owned a custom boat building operation, whose principal place of business was located on a street it shared with various other businesses, including several restaurants. On two separate occasions in the summer of 2002, the City of Lincoln’s sewer system apparently became clogged, resulting in a sewage backup into plaintiff’s place of business. Although the city and various of its independent contractors addressed the sewage spills, plaintiff was not satisfied with the efficiency or effectiveness of the response. Plaintiff subsequently filed suit against the city, and after a year of litigation, the City of Lincoln pointed the finger at the neighboring restaurants. The city theorized that because restaurants use cooking oil and grease in their businesses, dump cooking oil and/or grease into the sinks could lead to a sewage clog. Plaintiff followed suit, and amended its complaint to add various parties including our client, Kram Endeavors dba McDonald’s Restaurant.Ultimately, we filed a motion for summary judgment, with a hearing date close to the last possible day to have motions heard. We argued that no admissible evidence had been turned up to establish that McDonald’s had in fact discharged grease into its drains, or otherwise into the sewage system. Moreover, plaintiff had no admissible evidence which would establish that, even if McDonald’s had discharged grease or cooking oil into the sewage system, such discharge was a substantial factor in causing the two sewage backups in May and July of 2002. We argued that, on the other hand, being familiar with its own procedures for disposing of cooking oil and grease, McDonalds was certain that it did not discharge grease or oil into its drains, or otherwise into the sewage system, and thus did not cause the sewage backups.In its opposition, plaintiff pointed to various previous clogs in the sewage line, regardless of the location or apparent cause of the clog, submitted various “business records” documenting the clogs, and submitted the report of an expert which opined that the subject backups were caused by one or more restaurants discharging excessive grease into the community sewer system. The evidence submitted by plaintiff arguably raised a triable issue of material fact with respect to whether McDonalds allowed grease into the sewage system, and also as to plaintiff’s claim of statutory violations regarding the handling/disposal of grease.We were able to prevail on the motion, however, by eliminating plaintiff’s evidence, item by item. With our reply papers, we filed detailed evidentiary objections to some of the business records (lack of proper authentication, etc), and to the expert’s declaration (speculative, lacking personal knowledge of facts stated, etc). The court sustained many of the evidentiary objections, and what was left did not raise a triable issue of material fact. Moreover, because of the proximity of the trial date, plaintiff did not have time to cure the deficiencies in the evidence (which could have been done through depositions, and a site inspection by the expert witness).Plaintiff appealed to the Third District Court of Appeal, which affirmed the grant of summary judgment.
Two men were killed in a tragic accident that occurred on I-5 near Woodland, on a very foggy day. There were several other multi-vehicle accidents littering the interstate in front of the fatal (and 5th) accident. Plaintiffs sued the allegedly negligent drivers involved in each of the five separate accidents on the freeway that day, as well as the various entities responsible for construction that was going on a few miles down the road. Our clients were involved in the third of the five accidents.Four of the defendants moved for summary judgment. Our clients were the only defendant drivers to move for summary judgment. The other three motions were brought by parties that were defendants by virtue of their role in the subject lane closure on Interstate 5 the day of the accident. Our primary argument in the motion for summary judgment was that plaintiff could not establish the element of causation.We argued that the general facts of the accidents, which were essentially undisputed, established that our client, regardless of whether or not she was negligent, was not a substantial factor in causing the fifth and fatal accident. Specifically, we argued that our client did not cause the accident for at least the following reasons:• Whether or not the Pod 3 accident occurred, the drivers of Pod 3 would have been stopped because the Pod 2 accident blocked both lanes of travel.• The “jack-knifed” big rig (as opposed to Pod 3) is the reason the lead driver of Pod 4 (Yeates) stopped.
• The lead drivers of Pod 5 were safely stopped, despite the traffic conditions in front of them until they were impacted from behind.
In opposition, plaintiffs purported to dispute some of the material facts presented, and argued that each event caused the next event, and that the decedents would not have been stopped where they were when they were hit by the lumber truck, if not for the actions of each of the defendants, taken together. The court agreed, and issued tentative rulings denying each of the four motions for summary judgment.
Upon oral argument, the court took the motions one by one, affirming its ruling on the first three. But, upon oral argument, the Court was intrigued by the mysterious jack-knifed truck, and the fact that no one knew anything about why that truck stopped. The presence and location of the jack-knifed truck was confirmed by a few witnesses. But most significant, is that driver Yeates, who was involved in the 4th accident, testified that he had come to a stop that day to avoid a collision with the jack-knifed truck. The truck was jack-knifed between the third accident (admittedly caused by our client) and the fourth accident. We argued that, without any evidence as to why the truck jack-knifed, it could not be related to the third accident. There was no evidence that the third accident (ours) had even occurred prior to the truck jack-knifing.
From the bench, the court reversed its tentative, and granted summary judgment for only our clients. It ruled that our client owed a duty of care to other motorists and breached that duty, but that there was no evidence that such breach of duty was a legal cause of the Pod 5 accident.
- Contract Interpretation
In this business litigation case, two Merrill Lynch brokers agreed to pool their accounts, to allow the senior broker (plaintiff) to wind down and retire, while gradually introducing/transferring his clients to the junior broker (our client), who was in the process of building up his business. The agreement provided for a specified compensation schedule while the senior broker wound down his career, and further provided that the agreement ended upon termination of employment. When plaintiff turned in his broker number, thus voluntarily terminating his employment with Merrill Lynch, he ceased to receive compensation, per the terms of the contract. He subsequently sued our client for compensation beyond his employment termination date.Plaintiff argued that the compensation schedule was actually a purchase price for his “book of business,” and that his voluntary termination did not affect his compensation for the value of the book of business, only his compensation for employment. We found the lawsuit presented a classic contract interpretation issue, making it appropriate for summary judgment. On summary judgment, we argued that the modern approach to contract interpretation is to avoid the terminology of “intention,” and to look for expressed intent, under an objective standard. Under the objective theory of contracts recognized in California, it is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation.Although parol evidence may be considered when it is susceptible to the meaning urged by one party, we argued that plaintiff had not presented any factual or legal reason for considering parol evidence in this case. And even if parol evidence would have been appropriately considered in this case, plaintiff had not offered any evidence in opposition to this motion beyond the subject agreements, and his own declaration containing his subjective interpretation of the contract. We reiterated that the contract language unequivocally provided that compensation would cease and clients would be distributed to the remaining members of the “pool/team” upon termination of one of the team members. The court agreed and granted summary judgment for our clients.
This case arose as the result of a propane explosion that occurred during the course of a festival at a religious center in the hills east of Concord, CA. The Center had been a long-time customer of our client, Suburban Propane, and periodically requested multiple 100-lb propane cylinders (each holding approximately 28.5 gallons of propane) to provide propane cooking at various outdoor festivals. On the day in question, propane vapor vented from the valve of a cylinder, apparently as a result of thermal expansion and alleged overfilling of cylinder. Several Center volunteers tilted the cylinder on its side and attempted to roll it into the shade. At that point, a significant volume of Liquid Propane Gas escaped, instantaneously expanding into the air at a 270:1 ratio and quickly reaching the nearby open flames of 24 outdoor burners where food was being cooked for the festival. Nine people suffered extensive burns and related injuries as a result of the explosion and fire. The combined claims of all plaintiffs totaled more than $72 million.Plaintiffs against our client, Suburban Propane, included strict products liability and negligence in filling and supplying the cylinder and valve that leaked, inspection, failure to warn, and other theories.Through discovery, it was demonstrated that the accident cylinder was one of those refilled by Cylinder-4-Cylinder, another company. Based on the above, we moved for summary judgment on the following theories: our client did not fill, inspect, or deliver the cylinder that vented; the Center had a facilities manager who was responsible for the set-up of the outdoor tent/kitchen and the attendant code violations; any warning responsibility was satisfied as a result of a warning sticker on the tank (it was blown up from a photograph of one remote tank that was not destroyed in the conflagration).
The court granted the Motion for Summary Judgment.We also filed a separate Motion for Summary Adjudication with respect to an indemnity provision contained in the contract between our client and the Center. The Court also granted the second Motion for Summary Judgment regarding the indemnity obligation that included attorneys fees.The Center filed a Petition for Writ of Mandate to the First District Court of Appeal, which was denied.
This case followed the fatal collapse of a Pacific Gas & Electric (“PG & E”) trench at a construction site in Rio Linda, California. The trench was dug to facilitate relocation of utilities in advance of a Flood Control construction project. The trench collapse killed three boys, and injured a fourth, who were playing in the trench. The evidence revealed that the boys gained access to the trench by removing sheets of plywood left as a temporary cover over the weekend. The collapse apparently occurred after the boys pulled on a tree root in the trench. Parents quickly rushed to the scene and attempted, unsuccessfully, to dig their children out. Two of the boys were buried up to their necks and the third was buried completely. All three boys, ages 8 to 11, died of traumatic asphyxia. It took rescue workers 5 hours to remove the bodies from the excavation.The trench was located in a large levee repair construction project initiated by SAFCA known as the Natomas Area Flood Control Improvement Project, Robla Creek South Levee and NEMDC West Levee Improvement Project. Nordic was the General Contractor responsible for the flood improvement project.Three actions were filed by families of the three boys who died and the surviving boy against PG & E, the County of Sacramento (“County”), the Sacramento Area Flood Control Agency (“SAFCA”), and our client, Nordic Industries, Inc. (“Nordic”). The plaintiffs alleged causes of actions for negligence and negligence per se against Nordic, as well as negligent infliction of emotional distress. They claimed damages in excess of $28 M.Each of the co-defendants filed motions for summary judgment based upon various governmental and common law immunities, all of which were denied by the trial court. Being unable to utilize any immunities, our office filed a motion for summary judgment on the ground that Nordic owed no duty to the boys as its contract with SAFCA did not require it to protect the boys from PG & E’s work. As PG & E had its own contract with the County to perform the excavation work, we argued that any duty to protect the public from the trench fell on PG & E, not Nordic. Although Nordic’s contract required it to protect pedestrians from construction activity, the Court agreed with Nordic that the boys were not pedestrians, but were recreating when they were injured. Thus, Nordic had no contractual duty, nor had it voluntarily undertaken any duty, to protect the recreating boys from the construction activity.The court granted Nordic’s Motion for Summary Judgment.
We obtained summary judgment for California Homes in a Motion for Judgment on the Pleadings. SPANNER was a class action suit where an attempt was made to sue on behalf of over 200 homeowners. Class certification also was opposed successfully.The named Plaintiffs only purchased their homes from FORECAST, not from CA. HOMES. We argued that the written purchase contracts between FORECAST and the named Plaintiffs create a legal duty, if any, only as between the Plaintiffs and FORECAST. California Civil Code (CC) Section 1549 provides: “A contract is an agreement to do or not to do a certain thing.” In this regard, [a contract] “…gives rise to an obligation or legal duty, enforceable in an action at law. (CC 1427, 1428.). However, CA. HOMES is an entity separate and distinct from FORECAST, and the plaintiffs neither contracted with, nor had any dealings with CA. HOMES, nor any agents, servants, employees and/or representatives of CA. HOMES. Therefore, and while FORECAST may owe some duty to plaintiffs, CA. HOMES does not owe a duty to anyone who purchased a house from FORECAST. Indeed, no duty has ever existed between Plaintiffs and CA. HOMES. We argued the named Plaintiffs have no cause of action against CA HOMES, as none of the parties even purchased a house from CA HOMES and therefore are owed no duty by CA. HOMES. Therefore, plaintiffs have no facts and cannot introduce any facts which would give rise to a triable issue concerning any breach of “duty” notwithstanding their alleged status and capacity as class representatives.
Plaintiff was severely injured when he, on his motorcycle, collided in an intersection with Defendant #1, who was crossing plaintiff’s lane of travel, to make a left turn. Defendant #2 (our client) was sitting in the left turn lane, facing plaintiff’s lane of travel, and indicated to Defendant #1 that he would let her make her left turn before he made his.Plaintiff alleged that defendant gestured for third party to pull out into oncoming traffic, leading to the collision between plaintiff and that third party. The question of a duty under these facts was recently addressed by the appellate court in Gilmer v. Ellington. We argued that under the pertinent California case law and the applicable Vehicle Code section, defendant did not legally have a duty to plaintiff; nor could he legally waive plaintiff’s right of way. The duty to proceed across lanes safely falls exclusively on the driver who is crossing the lanes (the third party).The court granted our motion for summary judgment. Plaintiff appealed, but the ruling was affirmed by the Third District Court of Appeal.
Plaintiff filed his complaint 14 days after 2-year statute ran, in this motor vehicle accident case. In the complaint, plaintiff pled around the statute by claiming tolling due to insanity.We moved for summary judgment, on the statute of limitations ground, arguing that the evidence developed failed to establish that Mr. Fennelly was mentally deranged such that the statute should be tolled. We further argued that even if it did establish “insanity”, it was not for the necessary time period or in the right time frame. The Court granted summary judgment. NOTE: This ruling was at least partially, if not largely, due to plaintiff’s failure to follow statutory procedural requirements in his opposition.
Plaintiff was injured in a motorcycle accident. His wife’s action included a negligent infliction of emotional distress cause of action. Under California law, the necessary elements of a bystander negligent infliction of emotional distress claim are well-defined. One requirement is that plaintiff was present at the scene of the injury-causing event, and was aware that the injury was occurring; i.e. contemporaneous observance of the injury. Wife was a paramedic, and learned of her husband’s accident through the dispatcher, but it was immediately after it occurred. We filed motion for summary judgment, plaintiff dismissed the claim in lieu of opposing motion.
- Summary Judgment for Foster Family Agency Client
We obtained summary judgment in federal court for our foster family agency client in a case in which several million dollars of damages were claimed by multiple plaintiffs.