Opinion
E055365
10-17-2012
MURRIETA DEVELOPMENT COMPANY, INC, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; JOSHUA ACKERMAN, Real Party in Interest.
Christensen Ehret, Mark E. Christensen, Michael D. Hirsch and Kevin J. Rodriguez for Petitioner. No appearance for Respondent. Law Offices of Robin L. Haulman, Robin L. Haulman; Law Office of Steven C. Geeting, Steven C. Geeting; and James S. Link for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC541434)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. John W. Vineyard, Judge. Petition granted.
Christensen Ehret, Mark E. Christensen, Michael D. Hirsch and Kevin J. Rodriguez for Petitioner.
No appearance for Respondent.
Law Offices of Robin L. Haulman, Robin L. Haulman; Law Office of Steven C. Geeting, Steven C. Geeting; and James S. Link for Real Party in Interest.
The underlying action arises from a single vehicle rollover accident. Real Party in Interest, Joshua Ackerman (Ackerman), the driver and sole occupant of the vehicle, sues for personal injuries on a theory that a dangerous condition was created during the construction of a development on neighboring property. A contractor on that project, Petitioner Murrieta Development Company, Inc. (hereafter Murrieta), moved for summary judgment on two grounds: (1) it owed no duty to Ackerman; and (2) Ackerman could not establish causation. The trial court denied the motion, and Murrieta filed this petition for writ relief.
FACTS
Ackerman was driving eastbound on McCall Boulevard (McCall) when his vehicle skidded and then veered, eventually flipping over in a field on the north side of McCall and east of Antelope Drive (Antelope). McCall is an east-west roadway in this area with two lanes of traffic in each direction.
To the west of Antelope, the number 2 lane of McCall was very wide. To the east of Antelope, it narrowed to the width of a normal traffic lane as it passed by the property of defendant Spanos Corporation (hereafter Spanos). Spanos was in the process of constructing a multibuilding apartment complex south of McCall and east of Antelope. McCall was bordered at that location by an unimproved dirt area where utilities were eventually installed. A straw wattle ran along the edge of the road separating it from the dirt area.
Ackerman sued Spanos and Murrietta on the ground that McCall was in a dangerous condition. He alleges that the construction extended into the roadway so that his vehicle was "pulled into the construction site which acted as a trap" causing him to lose control. He further alleges that the narrowing of the roadway was not visible at night and there were no warning signs.
Murrieta moved for summary judgment on the ground that it had completed its work five months before this accident; that the work had been accepted by Spanos; thus, it owed no duty to Ackerman. In addition, it asserted there was no evidence of a trap, and finally, like Spanos, it argued that Ackerman could never prove causation.
First, Murrieta says that when it completed the installation of the sewer line in July 2008 it refilled, recompacted, and leveled the dirt adjacent to McCall. There was no appreciable height difference or lip between the dirt lot and McCall. It says it did not remove the fog line on McCall as Ackerman later maintained. It hired another contractor to shave three inches off the edge of the roadway for installation of the sewer, and the fog line was used as a guide. When Murrieta completed its work, Spanos told it to pick up its material, including traffic control devices (cones), and leave the project. After Murrieta completed its work, Spanos installed storm water pollution prevention measures required by the County of Riverside, which included straw wattles and an orange silt fence. Murrieta was not required to perform street improvements in relation to the project. Thus, it argues it owed no duty to Ackerman. In its briefs, Murrieta defined this argument as the "completed and accepted" doctrine.
The accident occurred on December 21, 2008.
With respect to causation, Murrieta pointed out that there is no direct evidence as to the accident. Ackerman has no memory of the accident or any events leading up to it. His last memory is entering his vehicle (his brother's truck) to return to Romoland after purchasing cigarettes at a gas station near the intersection of the 215 freeway and McCall. There were no witnesses to the accident.
The police report indicates that Ackerman's vehicle started skidding while in the middle of the number 2 lane and then veered toward the south edge. The police report indicates that there was a hay stack that appeared to have been hit in the roadway prior to the collision or as part of the collision. The majority of hay appeared to be in the number 2 lane (the southernmost lane), and stretching out to the number 1 lane. There were stacks of hay on the southern dirt shoulder. The officer opined that this could be an associated factor in the collision. He concluded that the immediate cause of the accident was Ackerman overcorrecting and losing control of the vehicle.
Ackerman argued in response that Spanos, and its subcontractor Murrieta, created a trap by narrowing the number 2 lane and removing a section of pavement. There was no fog line or other visual demarcation of the edge of the roadway. Murrieta admits that it had at least three inches shaved off the edge of McCall, and Ackerman argues that there is at least an issue of fact whether it removed the fog line in doing so. He relies on the police report and the physical condition of the roadway to argue there was evidence of negligence and causation.
In addition, Ackerman submitted declarations of Michael Hale, an accident reconstruction expert, who concluded the accident was caused by a roadway condition not readily apparent to the approaching driver, specifically the narrowing of the lane with the lack of a warning, which caused Ackerman to hit the straw wattles. This resulted in him being pulled to the right, and he attempted to correct this condition causing him to lose control. He also opines that the truck tires were inflated when they skidded in a northeasterly direction across the westbound lanes. Finally, he says that Ackerman was travelling "within the median speed of the traffic survey used to set the speed limit on McCall Blvd."
The trial court denied summary judgment finding that Ackerman had established triable issues of fact about the scope of Murrieta's work and the condition of the roadway when it completed its work. With respect to the "completed and accepted" doctrine, it found that the cases on which Murrieta relied were distinguishable because they did not involve public works projects. It also found triable issues regarding causation.
DISCUSSION
No duty; Completed and Accepted Doctrine.
The "completed and accepted" doctrine holds that when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466-1471.) The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety and, thus, the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. (Id. at pp. 1466-1467.)
In Sanchez, a general contractor hired a subcontractor to construct the entrance stairway and landing for a new building. Two years after the building was completed, the plaintiff slipped on rainwater that had pooled on the landing and initiated a negligence action against the general contractor and subcontractor. The court concluded that the defendants were not liable for the plaintiff's injuries because the owner and its employees had long been aware that rainwater pooled on the landing. (Sanchez, supra, 47 Cal.App.4th at pp. 1470-1471.)
The doctrine was applied in Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, where the contractors' work in installing mounting bolts securing an explosive detection machine was completed and accepted by the Transportation Security Administration (TSA). Thus, the contractors were not liable for negligence in an action by a TSA employee who tripped over the mounting bolts in the absence of evidence that the contractors performed work on, or retained control of, the machine after the bolts had been installed.
The trial court distinguished Sanchez and Jones on the ground that they did not involve a public works project. It relied on Breslin v. Fredrickson (1957) 152 Cal.App.2d 780, where the court refused to apply the doctrine. There, a contractor had performed resurfacing work on a stretch of roadway. Shortly after the work was completed, a woman driving on the roadway moved her car toward the shoulder in response to the position of an on-coming vehicle; she lost control because the right front wheel dropped six inches on the shoulder. The court stated that: "Although a contractor is not liable for injuries suffered after completion and acceptance of the work, even though his negligence in performing the contract caused the damage [citation], nevertheless it is well established that: [¶] 'A highway contractor doing work on a public highway or street owes to the traveling public the duty of protecting it from injury that may result from his negligence. He is under a duty, for instance, to warn travelers of existing hazards during the construction period by the placing of lights, guards, warning signs, and barriers.'" (Id. at p. 786.) The Breslin court stressed that the contractor's work had not been formally accepted or approved. (Id. at p. 787.)
Murrieta argues Breslin is distinguishable because it was merely a subcontractor and had no direct contact with the public entities. The general contractor had accepted its work and its involvement with the project had ended.
Ackerman's theory of liability against Murrieta seems somewhat fluid because he points to several possible dangerous conditions. Murrieta's role in this incident seems attenuated—and certainly this is true if Ackerman bases the dangerous condition on the straw wattles. However, if the dangerous condition is shaving off the roadway edge or changing the roadway surface, then there are triable issues regarding Murrieta's involvement and whether the defect was patent or not. Thus, application of the "completed and accepted" doctrine does not definitively preclude Murrieta's liability.
Causation.
Murrieta asserts that it is entitled to summary judgment because Ackerman cannot establish causation. Specifically, he cannot show that it is more probable than not that its negligence was a cause of the accident.
We note that this formulation of the causation element is not accurate. Causation is the nexus between the defendant's negligent act or omission and the injury or harm suffered by the plaintiff. (Rest.3d Torts, Liability for Physical and Emotional Harm, § 26; see generally Dixon v. Livermore (2005) 127 Cal.App.4th 32, 42-43.) However, as we will discuss more extensively post, both parties have analyzed the issue in terms of causation of the accident and, indeed, Ackerman's theory is that Murrieta's acts caused him to veer off the road, causing the accident. Moreover, the distinction between causation of the accident and causation of the harm does not lead to different results in this case.
We now focus on the element of causation. A mere possibility of causation is not enough, and "when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to determine the issue in favor of the defendant as a matter of law." (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484 (Leslie G.).) In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the Supreme Court explained that if a defendant moves for summary judgment against a plaintiff who has the burden of proof by a preponderance of evidence, "he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Id. at p. 851.) Stated more directly, if the evidence at the summary judgment would not allow a reasonable jury to find for the plaintiff by a preponderance of evidence, the defense is entitled to summary judgment. Here, this means that Murrieta is entitled to summary judgment if it shows Ackerman will never be able to prove causation by showing that it is more likely than not that his injury was due to the condition created by Murrieta.
Aguilar cited Leslie G. on this point. In Leslie G., the plaintiff was raped in the parking garage of her apartment building. She claimed that the landowner was negligent in failing to repair a broken security gate. The trial court granted summary judgment for defendant. The Court of Appeal affirmed, holding that the element of causation was lacking even assuming a duty was owed the tenant. "In this case, no one (other than the rapist, who has never been caught) knows how the rapist got into or out of the garage. Although the three access doors to the garage were found closed on the day after Leslie's rape, no one knows whether they were closed or propped open on the night of the rape. No one knows whether the rapist followed another tenant in through the front door and then found his own way down to the garage. No one knows whether the rapist somehow obtained a key to the premises (he could have found a lost key or stolen one from another tenant). These unknowns are significant because, had the gate been operating properly, the rapist still could have entered the garage. Moreover, even if it had been working, he could have entered through the security gate itself by waiting outside for a car to enter, ducking beneath the closing gate, and hiding in the garage as he apparently did on the night of Leslie's rape. (Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655 [where the evidence is such that it is a matter of conjecture whether a particular deduction is warranted from the facts which are known, there is no basis for a legally sufficient inference]; Savarese v. State Farm etc. Ins. Co. (1957) 150 Cal.App.2d 518, 520 [an inference may be based on another inference only when the first inference is a reasonably probable one and, even where it is, when the building of inference upon inference results in a progressive weakening of logical sequence and leads to an ultimate conclusion which is untenable on the basis of the facts proven, the ultimate inference is legally too remote and must be rejected].)" (Leslie G., supra, 43 Cal.App.4th at pp. 484-485, fn. omitted; see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763.)
Ackerman relies on another third party assault case, Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, where the appellate court found triable issues existed whether the defendant landlord's negligence was a substantial factor in causing the plaintiff's injuries. That case is distinguishable from Leslie G. and, thus, inapposite to our case, because there was evidence as to how the assault occurred: the assailant had been captured and it was known he was not a tenant in the apartment complex. In addition, it was known how he gained access into her apartment. Thus, there was evidence linking the landlord's negligence in failing to provide adequate locks, security bars, and warnings with the assault.
Furthermore, Ackerman would have to show that it is more probable than not that the accident was caused by the condition of the road. His expert's opinion is insufficient to raise a triable issue. According to his deposition testimony, the investigative officer apparently made no definitive finding that Ackerman's vehicle went off the southern edge of road before crossing to the other side of the road. Assuming the vehicle did go off the southern edge and strike the straw wattles, there is no evidence to explain his initial loss of control. What caused Ackerman to hit his brakes in the first place? He might have been surprised by the narrower road itself, although the skidding began after the road narrowed, it also could be because his attention had been distracted for any number of reasons (e.g., trying to get a cigarette from the newly purchased pack, tuning the radio, etc.). Perhaps, Ackerman was trying to avoid an animal running across the road or perhaps he was speeding. He might have experienced some sort of mechanical problem with the truck. As we see, there are any number of possible explanations for Ackerman's loss of control, and proof of causation cannot be based on mere speculation, conjecture, and inferences. Hale's declaration is sound only to the extent he provides an opinion as to what happened after petitioner came into contact with the edge of the roadway—not in explaining why he was headed into that direction to begin with. And, like Leslie G., the expert's opinion for causation is speculative.
Also, he could have been going too fast; Hale's declaration merely says he was going within the median range of the traffic survey, but that does not necessarily establish that he was traveling at a safe speed.
The vehicle was disposed of several weeks before Ackerman commenced this action.
We must now address the issue of the distinction between causation of the accident and causation of the injury. Based on the foregoing analysis, it is clear that Ackerman will never be able to show that it is more probable than not that a condition of the road caused him to lose control of the vehicle, i.e., Murrieta's negligence caused the accident.
Hale's declaration does provide some evidence that once Ackerman's vehicle went over the edge of the paved road (if it did), it skidded across to the opposite side of the roadway due to overcorrection. This may have been a substantial factor in Ackerman's injuries since the vehicle flipped over at that point. However, Ackerman still fails to show a nexus between Murrieta's negligence and the injury or harm rather than the accident. His complaint is that those certain roadway conditions created by Murrieta caused the accident in the first place. To illustrate our point, we look to a case involving a rollover accident, Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849. In that case, the driver drove the car off the road while drunk and suffered serious injury when the car turned over, and the roof collapsed on him due to an allegedly defective roof post. The automobile manufacturer was held liable because its negligence in construction of the vehicle was a contributing factor to the driver's injuries although, clearly, it did not cause the accident. In Doupnik, the manufacturer was negligent because it had a duty to manufacture vehicles to provide for the safety of the occupants in a vehicle accident. Here, in contrast, the only negligence Ackerman identifies is the condition of the roadway and failure to warn that led to the accident. He talks about a trap pulling the vehicle off to the side of road. He also complains about the absence of a fog line and or adequate warnings so that drivers would unknowingly go off the side of the road. As already discussed, there is no evidence that these conditions contributed to this happening. Once he hit the edge, it is perhaps arguable that he lost further control of the vehicle, but it does not appear that Murrieta was negligent in this regard. Construction companies have a duty to warn of a narrow road or a trench so that motorists do not hit them, but as we have already explained, Ackerman cannot establish such lack of warning contributed to him hitting the edge. Once he lost control and headed off the roadway, any condition along the side-a curb, a lip, or a straw wattle, could have caused a further loss of control, but that would not render the condition a defect or the property owner or constructor negligent in having it there. If Ackerman had lost control and hit a parked piece of equipment, Murrieta would not have been liable absent any evidence that they were negligent in parking the equipment at that location. (Cf. Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 [where parking in an emergency parking only zone was found to be negligent and foreseeable that other drivers might collide with the parked truck].) So too here, there does not appear to be a nexus between the alleged negligence/dangerous condition and the injuries.
DISPOSITION
The petition is granted. Let a writ of mandate issue directing the Riverside County Superior Court to set aside its order denying Murrieta's motion for summary judgment and enter a new order granting that motion.
Murrieta is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties. Murrieta is entitled to recover its costs of these writ proceedings.
The previously ordered stay is hereby lifted.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
I concur:
RAMIREZ
P. J.
King, J., Dissenting.
In its petition, petitioner, Murrieta Development Company, Inc. (Murrieta), makes three arguments: (1) It owed no duty to real party in interest, Joshua Ackerman (Ackerman), in that it "did not control the area and its work had been completed, accepted and paid for . . . and therefore, the 'Completed and Accepted Doctrine' shields [it] from third party claims"; (2) it owed no duty to Ackerman because there was no evidence that it removed the edge line "(i.e. warning device)"; and (3) "[Ackerman] has no evidence of causation of the accident in the first instance."
Initially, while I agree with the majority that a triable issue of fact is present as it relates to duty, I disagree with both the majority and Murrieta that the completed and accepted doctrine, in and of itself, can shield a contractor from third party liability. At most, the completion and acceptance of the contractor's work, notwithstanding a patent defect, is merely one consideration among many in approaching the issue of duty. Secondly, there is evidence that Murrieta or its subcontractor removed the edge line from the roadway and failed to repaint a new edge line. While the issue as phrased by Murrieta appears to deal more with breach of duty as opposed to duty, there is a triable issue of material fact as to whether Murrieta had a duty not to remove the existing edge line; and if it did remove the edge line, whether they had a duty to repaint a new edge line.
On the issue of causation, I believe Murrieta failed to meet its initial burden of production relative to its conduct not being a substantial factor in bringing about Ackerman's injuries.
I. FACTS
Ackerman was injured in an automobile accident on McCall Boulevard adjacent to unfinished work on a storm drain improvement project. The improvement project was handled by The Spanos Corporation (Spanos). Murrieta, a subcontractor on the job, was responsible for the installation of the underground storm drain. Installation of the storm drain began in May 2008 and was completed on July 22, 2008. Murrieta was the only utility company to work in the right-of-way near the pavement. In installing the storm drain, Murrieta trenched an area south of McCall Boulevard, adjacent to the eastbound No. 2 lane. Murrieta was responsible for backfilling the trench to the original grade after the storm drain was installed.
Gary Mitchell, the on-site foreman for Murrieta, stated in his declaration that "[a]ll of the backfill was properly compacted and the dirt elevation was approximately level with the pavement level of McCall Boulevard. By [his] observation, there was no height differential of more than one-quarter inch (1/4") by and between McCall Boulevard and the adjoining dirt." This was corroborated by Andres Botello, the individual that actually did the work. There was no noticeable drop-off at the southern edge of the pavement after the job was completed.
Mitchell testified in his deposition that the 450-foot trench was probably a foot away from the roadway pavement. He initially testified that Murrieta did not do any asphalt cuts along McCall Boulevard because there was no need to remove any asphalt. He subsequently testified that he remembered shaving about three inches off the edge of the pavement. The pavement was cut by a subcontractor. To indicate where the pavement was to be cut, Murrieta probably spray painted the pavement. Mitchell further testified that when Murrieta began work at the scene, a painted edge line was present along the southern edge of the pavement. Photographs taken sometime before the accident depict the presence of an edge line. Photographs taken shortly after the accident do not show the presence of an edge line. Mitchell testified that no one other than the subcontractor made any cut along the edge of the roadway; he did not know who eliminated the edge line.
Lastly, Mitchell testified that in doing its work, Murrieta always follows the plans and specifications for a project. In this case, the plans and specifications called for the center of the storm drain box to be 27.45 feet from the center line of the roadway. To adhere to these specifications, it would have been necessary to take off over two feet of the asphalt roadway.
Christopher Tompkins, the subcontractor hired to cut the edge of the pavement, testified that he cut the asphalt so that Murrieta could put their pipelines in the ground. His company cut 600 linear feet. In moving from west to east they used the right side of the four-inch wide edge line as their guide for the cut. The amount of asphalt that was cut generally ranged from one to three inches; in a couple of places, six to eight inches were cut away.
Scott Boersma, the project superintendent for Spanos, testified that in December 2008 (around the time of the accident), there were no contractors or subcontractors working in the area. In September, a few months before the accident, Spanos put up a silt fence and placed straw wattles along the edge of the pavement to control water flow near the roadway. The straw wattles were rolls of straw wrapped in nylon netting. They were six inches in diameter and 250 feet in length. They were placed on the dirt adjacent to the pavement and secured by stakes. Spanos did not grade next to the edge of the roadway before installing the straw wattles; they were installed on the dirt as it existed. Nothing changed in the condition of the shoulder between September, when the straw wattles were installed, and the time of the accident in December 2008.
Jack Lucas testified that he was the project manager for Spanos. He does not believe that Murrieta's contract or plans called for the removal of any asphalt. The straw wattles were put down by Spanos at the direction of the County of Riverside. Their purpose was erosion control.
Boersma further testified that on the day following the accident it was obvious there had been an accident. Fifty to 75 feet of the straw wattles were destroyed or damaged. Kyle Ackerman, Joshua Ackerman's brother, testified that when he went to the scene following the accident, the broken haystack area appeared to have fresh black rubber tire marks. Thomas Johnson, a member of the Riverside County Sheriff's Department, testified there was a skid mark right at the straw wattles that went across the roadway and off the north side of McCall Boulevard. There were about eight to ten feet of straw wattles that were disturbed and straw was strewn about the roadway. Based on the striation skid marks, Johnson believes that when the driver got to or on the straw wattles, he pulled or jerked the steering wheel hard to the left. After the accident, Boersma laid more straw wattles.
Michael Hale, Ackerman's accident reconstruction expert, declared that Ackerman's car hit the straw wattles and, because of the difference in the coefficient of friction between the roadway and the straw wattles, he attempted to correct, losing control of the vehicle. He further stated that: "Had adequate safety measures been taken with regard to the construction zone, this accident would and could have been avoided."
David Royer is a civil engineer and traffic engineer. He declared that Murrieta, as part of its work, removed a strip of pavement adjacent to the No. 2 lane and also removed the existing edge line that had been painted on the pavement. There was thus no demarcation for the edge of the pavement and nothing to warn of the shoulder closure created by the straw wattles. In going from the pavement to the shoulder, there was a change in the coefficient of friction. Royer opined that Murrieta should have placed a new edge line along the edge of the roadway.
II. ANALYSIS
A. Standard of Review
Summary judgment is a "drastic remedy." (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.)
On appeal following the grant of summary judgment, we review the record de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Ibid.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied." (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289-290, italics added.)
"Our review of the summary judgment motion requires that we apply the same three-step process required of the trial court. [Citation.] 'First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. [Citations.] . . . [¶] . . . [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]' [Citation.]" (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.)
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Id. at p. 850.) B. A Triable Issue of Fact is Present as to Whether Murrieta Owed a Duty to Ackerman
In its petition, Murrieta submits that it owed no duty of care to Ackerman because of the application of the completed and accepted doctrine. As argued, "[t]he 'Completed and Accepted Doctrine', shields construction contractors from liability for patent defects after a Project's completion and acceptance. [¶] 'After a contractor has completed a work of improvement and the owner has accepted it, the contractor is not liable to third persons for injuries caused by the condition of the work performed unless (1) the work is "reasonably certain to place life and limb in peril," (2) the contractor knew or should have known of the dangerous condition created by it, and (3) the owner did not know of the condition and would not discover it by reasonable inspection.'"
In agreeing with this concept, the majority states: "The 'completed and accepted' doctrine holds that when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. [Citation.] The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety and, thus, the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [Citation.]" (Maj. opn., ante, at pp. 5-6.)
I disagree. Application of the completed and accepted doctrine does not end all inquiry as to a subcontractor's duty to third parties. To the extent the doctrine retains vitality, it is merely considered along with other factors in analyzing whether a particular defendant owes a duty of care to a third party.
"The general rule in California is that '[e]veryone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .' [Citation.] In other words, 'each person has a duty to use ordinary care and "is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . ."' [Citations.]"(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) As such, it goes without saying that a contractor who does work on or immediately adjacent to a public roadway generally owes a duty of care to motorists to perform its work without creating a dangerous condition of the roadway or the adjacent area.
"'Courts, however, have invoked the concept of duty to limit generally "the otherwise potentially infinite liability which would follow from every negligent act . . . ."' [Citations.]" (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 (Bily).)"Whether a given case falls within an exception to [the] general rule, or whether a duty of care exists in a given circumstance, 'is a question of law to be determined [by the court] on a case-by-case basis.' [Citation.]" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) "A judicial conclusion that a duty is present or absent is merely '"a shorthand statement . . . rather than an aid to analysis . . . . '[D]uty,' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."' [Citations.]" (Bily, supra, at p. 397.) "'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [(1)] the extent to which the transaction was intended to affect the plaintiff, [(2)] the foreseeability of harm to him, [(3)] the degree of certainty that the plaintiff suffered injury, [(4)] the closeness of the connection between the defendant's conduct and the injury suffered, [(5)] the moral blame attached to the defendant's conduct, and [(6)] the policy of preventing future harm. . . .'" (Ibid., quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650.) These factors "are not determined in a vacuum, but rather depend . . . upon the particular circumstances in which the purported wrongful conduct occurred." (Burger v. Pond (1990) 224 Cal.App.3d 597, 603; see Dillon v. Legg (1968) 68 Cal.2d 728, 742.)
1. The Completed and Accepted Doctrine Does Not End All Inquiry as to Whether Murrieta Owes a Duty of Care to Ackerman
Here, Murrieta's alleged negligent conduct is its removal of the edge line from the southern portion of the eastbound No. 2 lane. While there is evidence that neither Murrieta nor its subcontractor removed the edge line, there is also contradictory evidence: photographs taken before and after the accident, testimony that Murrieta was the only contractor who cut off portions of the roadway, and testimony of plans and specifications that, if followed, would have necessitated Murrieta cutting away more than two feet from the pavement edge. Clearly, there is a triable issue as it relates to the material fact of whether Murrieta removed the edge line from the pavement prior to the accident.
In its petition and at oral argument, Murrieta submitted that Ackerman had changed the alleged dangerous condition from an excessive drop-off between the pavement and the shoulder to cutting off the edge line and failing to repaint it. In support of this, it alludes to answer to interrogatory No. 20.8. The problem with this is that the interrogatories to which the answer is responsive are not included in our record and do not appear to have been submitted at the trial level. We are therefore unable to properly evaluate the issue.
As such, the issue becomes whether Murrieta had a duty to Ackerman not to remove the edge line, or if it was removed, a duty to repaint it; further at issue is the extent to which the completed and accepted doctrine enters into the duty analysis.
In rejecting the completed and accepted doctrine as an arbitrary rule shielding a contractor from potential liability, our state Supreme Court in Stewart v. Cox (1961) 55 Cal.2d 857 indicated: "'Until quite recent years it was the prevailing rule that the contractor would be liable for any injury resulting from his negligence before his work was completed, but that his responsibility was terminated and he was not liable to any third person once the structure was completed and accepted by the owner. . . .'" (Id. at p. 862.) This rule, however, has given way to the principle that contractors, like the sellers of goods, are held "'to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence, even after acceptance of the work.'" (Ibid., italics added.) Thus, "there can hardly be any doubt that a contractor should be liable to third persons for negligence which causes a reasonably foreseeable danger to them." (Id. at pp. 862-863.) The court went on to make clear that "liability for negligence . . . is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that he suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm. [Citation.] The liability of a contractor or subcontractor must be determined by applying this general test rather than by arbitrarily placing them in a separate category subject to a special rule." (Id. at p. 863, italics added.)
The Restatement Second of Torts, section 385 is in accord. It provides: "One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others." (Rest.2d Torts, § 385, p. 293.) And, as provided by the rules determining the liability for a manufacturer of a chattel for use by others, "[a] manufacturer of a chattel is subject to liability . . . although the dangerous character or condition of the chattel is discoverable by an inspection which the seller or any other person is under a duty to the person injured to make." (Id., § 396, p. 332.) As indicated in the comment to section 396: "The fact that the inspection, if made, would have disclosed the dangerous character of the chattel and enabled him who owed the duty to correct the defect or give a warning or instructions which would have made it possible to use it safely, subjects the one who fails to perform the duty to liability for physical harm resulting to those to whom the duty is owed. It does not, however, relieve from liability the manufacturer to whose negligence the dangerous condition is due." (Id., § 396, com. b, pp. 332-333, italics added.) As expressed in 6 Witkin, Summary of California Law (9th ed. 1988) Torts, section 961, page 348, this view has been adopted in California. (See Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720, 724-727.)
To hold that a contractor, manufacturer, or servicer owes no duty to third persons once his or her work is completed and accepted by the owner or consumer is, at best, to draw an artificial and arbitrary line. It runs contrary to well-established law. If we accept the premise that once work is completed and accepted by the owner there is no further duty, the mechanic who negligently repairs an automobile's brakes and returns the car to the owner would escape liability when, as a result of the malfunctioning brakes, people in another vehicle are killed. The rule would allow the negligent manufacturer to escape liability once its product is sold and accepted by the consumer. This simply is not the law. The Restatement Second of Torts, sections 385 and 396 correctly state the law.
Even if the owner of the car knows that the mechanic failed to properly fix the brakes, there is no sound reason why this should preclude recovery against the negligent mechanic.
Further support for the proposition that the patent/latent distinction underlying the completed and accepted doctrine has little to no efficacy can be found in the public policy underlying Code of Civil Procedure sections 337.1 and 337.15.
Code of Civil Procedure section 337.1 is both a statute of repose and a statute of limitations. It provides that no person may bring an action against a contractor for damages caused by a patent defect in an improvement more than four years after completion of the improvement. (Code Civ. Proc., § 337.1, subd. (a).) Code of Civil Procedure section 337.15 provides similarly for a latent defect; however, it sets forth a period of 10 years after completion of the improvement. Through these statutes, the Legislature has indicated that if a contractor creates a patent defect in an improvement and the improvement is accepted, a plaintiff has up to four years in which to file an action; if the defect is latent, the plaintiff has 10 years.
Here, the majority's discussion does away with Code of Civil Procedure section 337.1. For if we are to accept the majority's position that a contractor is relieved of liability for a patent defect once it is accepted, then there is no need to have the four-year statute of repose set forth in Code of Civil Procedure section 337.1. Clearly, this is not what the Legislature intended. "[Code of Civil Procedure s]ection 337.1 exists to 'provide a final point of termination, to protect some groups from extended liability.' [Citation.] [Code of Civil Procedure s]ection 337.1 applies only to a specific class of defendants, set forth in the statute, associated with the design and construction of real property improvements. The statute therefore promotes such construction, because it 'frees those associated with it from the specter of lawsuits in the distant future. . . .' [¶] This kind of limitations period exists to define the period during which a plaintiff may file a complaint. . . ." (Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1333-1334, fn. omitted.)
Both Murrieta and the majority rely on Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461 (Sanchez)for the proposition that a contractor who creates a patent defect in premises does not owe a duty to a third party once the improvement has been completed and accepted by the owner of the property. On its facts, I believe the result in Sanchez is appropriate. It, however, is not our case.
In Sanchez, a concrete subcontractor poured walkways, an entrance ramp, a stairway, and a landing at the entrance of a building. The contractor complied with the project's plans and specifications. Two years after the work was performed, plaintiff slipped and fell while entering the building following a rainstorm. (Sanchez, supra, 47 Cal.App.4th at p. 1464.) "For some time prior to [the] accident, employees and agents of the owner had noticed that, whenever it rained, water accumulated on the landing, which sloped toward the building entrance. The water formed ponds with depths of one-half inch. The water also tended to run toward the entrance. In an effort to divert the water, sandbags were placed along the landing. Nonetheless, water sometimes migrated into the entryway. None of the owner's employees or agents informed [the subcontractor] of this problem until after plaintiff . . . was injured." (Ibid.)
The facts that drove the Sanchez decision were: (1) the alleged negligent work occurred two years before the accident; (2) the contractor followed plans and designs provided by another; (3) the condition—the puddling of water—and its dangerousness were open and obvious; (4) the owner knew of the condition and tried to ameliorate it by using sandbags; and (5) the puddling of water was obvious to the plaintiff. Under these facts, the court could appropriately find that at the time of the accident the contractor no longer owed a duty to plaintiff. As stated by the court: "The obvious nature of the defect would allow the owner and users to take steps to remedy the condition or to take precautions against injury. [¶] . . . it is undisputed that the dangerous condition was observed by the owner's agents, and the risk it entailed was appreciated, on several occasions preceding plaintiff['s] . . . accident. Even if the defect initially could have been considered latent, once it was discovered, it became patent." (Sanchez, supra, 47 Cal.App.4th. at p. 1471, italics added.)
While the court in Sanchez does appear to adopt a hard and fast rule relative to the issue of patent/latent defects, it nonetheless also analyzes the issue of duty under the traditional six factors of duty. (Sanchez, supra, 47 Cal.App.4th at p. 1471, citing Biakanja v. Irving, supra, 49 Cal.2d at p. 649; Stewart v. Cox, supra, 55 Cal.2d at p. 863.) At another point, the court discusses the issue of the patency of the defect and acceptance by the owner as being an intervening cause for which the contractor is not liable. (Sanchez, supra, at p. 1467.)
In Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707 (also relied upon by Murrieta and the majority), not only was the owner aware of the condition and its dangerousness, but the plaintiff also knew that the condition existed and that it was dangerous. (Id. at pp. 717-718.) While I believe the Jones court overstates the efficacy of the completed and accepted doctrine, its facts are clearly distinguishable from those in the present matter.
2. Considering All Relevant Factors, Including the Completed and Accepted Doctrine, Murrieta Has Not Established That It Has No Duty of Care
Here, in viewing the factors set out in Bily, supra, 3 Cal.4th at page 397, for determining whether a duty exists, I believe triable issues of material fact exist in this case.
"'The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis.' [Citation.] . . . 'In pursuing this inquiry, it is well to remember that "foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct." [Citation.] One may be held accountable for creating even "'the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.'" [Citations.] Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm . . . not its precise nature or manner of occurrence.' [Citation.]" (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272 [Fourth Dist., Div. Two].)
Here, the general character of the event or harm is that Ackerman's vehicle ran off the edge of the road. As attested to by David Royer, the purpose of an edge line is to mark the edge of the roadway from the shoulder area; in allegedly failing to replace the edge line after its work, Murrieta left no delineation or warning to eastbound motorists as to where the pavement ended and the shoulder, with its straw wattles, began. Foreseeability of the general character of the event occurring as a result of Murrieta's conduct weighs in favor of the imposition of a duty.
The second factor—the extent to which the work was intended to affect Ackerman—does not balance in favor or against the imposition of a duty of care. While I find no evidence in our record as to what party was to benefit from the installation of the storm drain and the work surrounding it, it would seem to be the type of infrastructure intended to transport water drained from the surrounding roadways and property. The work was thus intended to benefit both private property owners as well as individuals traveling on the roadway.
The third factor—the degree of certainty that a motorist will suffer injury—weighs in favor of imposing a duty. The risk of injury created by a vehicle leaving the roadway, with the driver unaware that he is moving from pavement to an unimproved shoulder with a difference or change in the coefficient of friction, creates a substantial risk of a driver losing control of the vehicle thereby resulting in injury.
It is within the confines of the factors involving the closeness of the connection between Murrieta's conduct and the injury suffered, the moral blame attached to Murrieta's conduct, and the policy of preventing future harm, that I believe we should consider the completed and accepted doctrine and the significance of whether the defect is latent or patent.
A patent defect "'is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence. [Citations.] This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection. [Citations.]'" (Preston v. Goldman (1986) 42 Cal.3d 108, 123.) Under Code of Civil Procedure sections 337.1 and 337.15: "'"Whether a defect is apparent by reasonable inspection is a question of fact." [Citations.] What constitutes a reasonable inspection "is a matter to be determined from the totality of circumstances of the particular case[]" and "must vary with the nature of the thing to be inspected and the nature and gravity of the harm which is sought to be averted." [Citation.] Whether a reasonable inspection would render a defect apparent is determined in light of "the reasonable expectations of the average consumer." [Citations.]'" (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 644.) As stated in Sanchez, supra, 47 Cal.App.4th at page 1470: "In the context of a patent defect, the word 'patent' '"refers to the patency of danger and not merely to exterior visibility."' [Citation.]"
If Murrieta's act of cutting away the edge line (and failing to replace it) is a latent defect, its negligence arguably has a closer connection to Ackerman's injury because the defect would go unnoticed by others (e.g., Spanos) who might have required the defect be cured. If, on the other hand, Murrieta's conduct resulted in a patent defect, the connection with Ackerman's injury is arguably weakened because the defect would likely have been observed and fixed before Ackerman was endangered by it.
The patency of Murrieta's alleged defect is highly questionable. It is doubtful that a reasonable contractor in Spanos's position would have discovered the defect upon inspection. It is further doubtful that the risk-creating potential of the absence of an edge line would have been appreciated by Spanos, a nonengineer. Lastly, it is indeed arguable, based on the inferences reasonably drawn from the evidence, that had there been an edge line, Ackerman's vehicle may not have contacted the straw wattles. (It would appear from the evidence that Ackerman did not correct the path of his vehicle until it was in contact with the straw wattles. If an edge line had been present, Ackerman might have discerned he was about to run off the roadway and made the correction earlier.)
Although the latency of the defect created by Murrieta's conduct suggests a close connection to Ackerman's injury, other facts indicate a more attenuated connection. Murrieta completed its work approximately five months before the accident. There was no appreciable drop-off between the pavement and the shoulder. The scene of the accident was acted upon by Spanos after Murrieta completed its work. The straw wattles were placed immediately adjacent to the traveling portion of the roadway by Spanos after Murrieta had completed its work. Ackerman appears to have initially lost control of his vehicle for some unknown reason prior to reaching the shoulder area. All told, triable issues do exist as to this factor.
Furthermore, other factors favor imposition of a duty. Murrieta's work was on or adjacent to a public roadway. As earlier stated, the condition and its dangerousness is not something that would be readily discernible by a reasonable contractor in Spanos's position. Given this, Spanos would not have been on notice of the condition for purposes of correcting it. Given the latency of the condition and the fact of moving traffic in the immediate area, the imposition of a duty on the contractor who allegedly cut off and failed to replace the only delineation between the pavement and the shoulder is in conformance with public policy. Further, imposition of a duty on such a contractor promotes the public policy of preventing future injury by requiring that public roadways be dealt with in a safe manner.
Upon the development of further facts, the trial court might determine by way of nonsuit or directed verdict that Murrieta did not owe a duty of care to Ackerman. However, based on the present evidence, I believe a triable issue of material fact exists as it relates to this issue. C. Murrieta Failed to Meet Its Initial Burden of Production That Its Conduct Was Not a Substantial Factor in Bringing About Ackerman's Injury
As to the issue of causation, we are concerned with whether Murrieta's act or omission "is 'a substantial factor' in bringing about the plaintiff's injury." (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288.) "'A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.'" (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1025, quoting CACI No. 430.)
The issue is "factual, and thus constitute questions for the jury." (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 399.) Ordinarily, this issue may not be resolved on summary judgment. (Vasquez v. Residential Investments, Inc., supra, 118 Cal.App.4th at p. 288, citing Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) While a court may properly examine the causal nexus of the alleged injury at the demurrer stage (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1190), a grant of summary judgment is improper unless from the undisputed facts "'only one reasonable conclusion could be drawn'" (Pacific Sunwear of California, Inc. v. Olaes Enterprises, Inc. (2008) 167 Cal.App.4th 466, 484).
Murrieta failed to meet its initial burden of production on the issue of causation. Rather than focusing on whether its conduct was a cause of Ackerman's injury, Murrieta dealt solely with whether its conduct was a cause of the accident. This is not the critical inquiry. For it may be that Ackerman was the sole cause of the accident (i.e., initially losing control of his vehicle), yet Murrieta's conduct (in removing and failing to replace the edge line) may well have been a contributing cause in Ackerman losing further control of his vehicle, leading to him ultimately being thrown from the vehicle. Because of Murrieta's focus on the cause of the accident as opposed to the cause of injury, it failed to meet its initial burden of production; as such, the burden never shifted to Ackerman to demonstrate a triable issue of fact.
"'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] Materiality depends on the issues in the case, and what matters are at issue is determined by the pleadings, the rules of pleadings, and the substantive law. [Citation.] 'The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.' [Citation.]" (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172, italics added.)
Here, Murrieta appears to have been substituted into the action as Doe 1. As such, two causes of action were alleged against it. In his complaint, Ackerman alleged, among other things, that Murrieta negligently created a dangerous condition of the roadway at the location of the accident. As to the issue of causation, Ackerman contended that Murrieta's negligence caused his injury.
Thus, to be entitled to summary judgment on the ground that the element of causation cannot be established, Murrieta had to negate the "material factual allegation" that its alleged negligence was not a cause of Ackerman's injury. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) As explained in Teselle, this is accomplished through the undisputed statement of material facts: "The purpose [of summary judgment] is carried out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed . . . [together with] a reference to the supporting evidence.' 'The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action' [citation], hence the moving party's separate statement must address the material facts set forth in the complaint." (Teselle v. McLoughlin, supra, 173 Cal.App.4th at p. 168, italics added.)
The separate statement is not merely a statutory requirement; its purpose is "to afford due process to opposing parties . . . ." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) "Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail." (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.)
Thus, under the present facts, it was incumbent on Murrieta to set forth in its separate statement of undisputed facts clear statements showing that the element of causation cannot be established. This can be done by conclusively negating the element or by demonstrating that Ackerman cannot establish the element. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853, 855.) In looking at Murrieta's statement of undisputed facts, Murrieta made no effort to conclusively negate the element of causation. What it attempted to do is show that Ackerman could not prove causation.
In its separate statement of undisputed facts, Murrieta averred the following:
"4. [Ackerman] has no information or knowledge as to what 'caused' his accident.
"5. There is no credible, reliable or admissible evidence as to the actual 'cause' of [Ackerman]'s accident.
"6. [Ackerman] cannot meet his burden of proof as to causation of his accident."
Murrieta argues that these undisputed facts demonstrate that Ackerman cannot establish a causal connection between its conduct and the "accident." The undisputed facts and Murrieta's argument miss the mark on two accounts. First, Murrieta's separate statement is focused on the cause of the accident, not the cause of the injury. However, the issue regarding causation is whether Spanos's conduct was a cause of the injury, not the accident.
At page 2 of the petition Murrieta states: "[Ackerman] has no evidence of causation of the accident in the first instance . . . ." At page 3, Murrieta argues that Ackerman cannot "show that it was 'more probable than not' that this accident may have been 'caused' by [Murrieta]. . . . The only available admissible evidence of that accident scene . . . reveals that [Ackerman] lost control of his vehicle before he ever may have come in contact with the edge of the roadway, and [Ackerman] offers no evidence/explanation as to what caused [Ackerman] to lose control of the vehicle in the first instance." (Underlining omitted.) At page 10: "[Ackerman] lost control of the vehicle . . . before he ever may have even come into contact with the condition of which [Ackerman] complains. There is no evidence offered as to what caused [Ackerman] to lose control in the first instance." And, at page 26: "[Ackerman] lost control first and then made contact with the straw wattles. The question remains: 'what caused [Ackerman] to lose control in the first instance before the straw wattles/edge of pavement even came into play?' [Ackerman]'s expert offers no opinions upon that, and accordingly, causation cannot be established." (Underlining omitted.)
Further, in reviewing the evidence submitted to support the various phrased propositions that Ackerman cannot prove causation, Murrieta relies almost exclusively on the deposition testimony of Ackerman, wherein he states that he has no recollection of the accident; while indeed Ackerman may have no recollection of the accident, it does not mean that he cannot prove that Murrieta's conduct was a cause of his injury. Nothing in Murrieta's separate statement of undisputed facts establishes that Ackerman cannot prove that Murrieta's conduct was a contributing cause of his injury. Even if Ackerman admitted each of Murrieta's undisputed material facts, it would not mean that he could not prove causation.
Murrieta also relies on its motion for sanctions and an in limine motion, neither of which are part of our record.
In that Murrieta failed to address the issue of causation as alleged in the complaint, the burden of production never shifted to Ackerman and, therefore, the motion was properly denied. (See Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534 ["if the showing by the defendant does not support judgment in his favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the plaintiff's showing."].)
The majority makes the same mistake. At pages 10 and 11 of the opinion, ante, the majority states: "Furthermore, Ackerman would have to show that it is more probable than not that the accident was caused by the condition of the road. His expert's opinion is insufficient to raise a triable issue. According to his deposition testimony, the investigative officer apparently made no definitive finding that Ackerman's vehicle went off the southern edge of [the] road before crossing to the other side of the road. Assuming the vehicle did go off the southern edge and strike the straw wattles, there is no evidence to explain his initial loss of control. What caused Ackerman to hit his brakes in the first place? He might have been surprised by the narrower road itself, although the skidding began after the road narrowed, it also could be because his attention had been distracted for any number of reasons (e.g., trying to get a cigarette from the newly purchased pack, tuning the radio, etc.). Perhaps, Ackerman was trying to avoid an animal running across the road or perhaps he was speeding. He might have experienced some sort of mechanical problem with the truck. As we see, there are any number of possible explanations for Ackerman's loss of control, and proof of causation cannot be based on mere speculation, conjecture, and inferences. Hale's declaration is sound only to the extent he provides an opinion as to what happened after [Ackerman] came into contact with the edge of the roadway—not in explaining why he was headed into that direction to begin with." (Fns. omitted.) Like Murrieta, the majority focuses on the wrong inquiry. While it may be totally speculative as to why Ackerman initially lost control of his vehicle (thus leaving one contributing cause of Ackerman's injury to conjecture), it does not negate the causal relationship of the roadway edge as being another contributing cause of the injury.
While the majority is correct that the investigating officer did not make a definitive finding that Ackerman's vehicle contacted the straw wattles, there is ample evidence to support the conclusion that it did.
Indeed the majority's statement that "Hale's declaration is sound only to the extent he provides an opinion as to what happened after [Ackerman] came into contact with the edge of the roadway," in fact admits to a triable issue of fact as to whether the edge of the roadway was a contributing cause of the injury.
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Here, Murrieta's statement of undisputed facts does not address the issue of causation as alleged in the complaint, and therefore fails to put the issue to rest. The majority makes the same mistake by addressing the matter in terms of causation of the accident as opposed to causation of injury. Because I do not believe Murrieta met its initial burden of production on the issue of causation, I would affirm the trial court's denial of the motion for summary judgment.
KING
J.