Sanchez v. Swinerton & Walberg Co.

• Decision Date: 27 June 1996
• Docket Number: No. B097531,B097531
• Citation: 55 Cal.Rptr.2d 415,47 Cal.App.4th 1461
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5617, 96 Daily Journal D.A.R. 9127 David SANCHEZ et al., Plaintiffs and Appellants, v. SWINERTON & WALBERG COMPANY et al., Defendants and Respondents.

Page 415

55 Cal.Rptr.2d 415

47 Cal.App.4th 1461, 96 Cal. Daily Op. Serv. 5617,

96 Daily Journal D.A.R. 9127

David SANCHEZ et al., Plaintiffs and Appellants, v. SWINERTON & WALBERG COMPANY et al., Defendants and Respondents.

No. B097531.

Court of Appeal, Second District, Division 1, California.

June 27, 1996.

As Modified July 29, 1996.

Bolden & Martin, Dwight M. Bolden, Alexandra K. Mells, Glendale, and Mark V. Santa Romana, Los Angeles, for Plaintiffs and Appellants.

Knopfler & Robertson, Richard A. Capella and Colin E. Barr, Universal City, for Defendant and Respondent Swinerton & Walberg Company.

Waters, McCluskey & Boehle and Fritz B. Hax, Santa Monica, for Defendant and Respondent Coan Construction Company, Inc.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiffs David and Diane Sanchez appeal from a summary judgment granted in favor of defendants Swinerton & Walberg Company and Coan Construction Company, Inc. We affirm.

STATEMENT OF FACTS

Defendant Swinerton & Walberg Company (Swinerton) was the general contractor for construction of the Los Angeles Times Olympic Production Facility. Defendant Coan Construction Company, Inc. (Coan) was the concrete subcontractor. As subcontractor, Coan poured walkways, an entrance ramp, a stairway and a landing at the entrance of the facility. These structures were open to the air. It is undisputed that On February 10, 1992, roughly two years after the facility was completed, plaintiff David Sanchez went to the Olympic Production Facility. It had been raining recently. Plaintiff walked up the stairs, across the landing and through the entrance into the transportation office. After taking three or four steps inside the building, he slipped and fell. The fall resulted in serious injury.

                defendant Swinerton generally complied with the project's plans and specifications. 1  There is no evidence as to whether defendant Coan complied with the plans and specifications for the concrete structures.  Upon completion of the project, the facility was accepted by the owner
                

For some time prior to plaintiff David Sanchez's 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 either defendant of this problem until after plaintiff David Sanchez was injured.

CONTENTION

Plaintiffs contend the trial court erred in granting summary judgment, in that there is a triable issue of material fact as to defendants' liability for plaintiffs' injuries. For the reasons set forth below, we disagree.

DISCUSSION

Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. Code Civ. Proc., § 437c, subd. (c); Mars v. Wedbush Morgan Securities, Inc. (1991) 231 Cal.App.3d 1608, 1613, 283 Cal.Rptr. 238.) Inasmuch as summary judgment is a drastic procedure and should be used with caution (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134), the moving party's papers are strictly construed, while the opposing party's papers are liberally construed (Mars, supra, at p. 1613, 283 Cal.Rptr. 238; accord, Pekarek v. City of San Diego (1994) 30 Cal.App.4th 909, 912, 36 Cal.Rptr.2d 22).

To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action (Albert v. Southern Pacific Transportation Co. (1994) 30 Cal.App.4th 529, 533, 35 Cal.Rptr.2d 777; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674) or show that an element of the cause of action cannot be established (Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, 663, 230 Cal.Rptr. 50). (Code Civ. Proc., § 437c, subd. (o)(2).) The defendant "must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial." (Chevron U.S.A., Inc., supra, at p. 548, 5 Cal.Rptr.2d 674.)

The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. (Los Angeles County-U.S.C. Medical Center v. Superior Court (1984) 155 Cal.App.3d 454, 459, 202 Cal.Rptr. 222.) The defendant need only demonstrate the absence of triable issues of material fact as to those bases of liability the plaintiff has pleaded, however. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 414, 175 Cal.Rptr. 365; see also American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281, 241 Cal.Rptr. 466.) The opposing party may not raise an issue for the first time on appeal. (Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588, 210 Cal.Rptr. 433.) Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is a triable issue of fact as to any essential element of a cause of action. (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1286, 44 Cal.Rptr.2d 335.)

The court must consider presumptions and draw inferences from the facts adduced where the inference is the only reasonable one which may be drawn. (See Unjian v. Berman (1989) 208 Cal.App.3d 881, 884, 256 Cal.Rptr. 478, review den. May 23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646.) The court has no power in a summary proceeding to weigh one inference against another or against other evidence, however. (Unjian, supra, at p. 884, 256 Cal.Rptr. 478; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145, 142 Cal.Rptr. 46.) An "assertion ... based solely on conjecture and speculation" is insufficient to avoid summary judgment. (Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 978, 243 Cal.Rptr. 277; Clutterham v. Coachmen Industries, Inc. (1985) 169 Cal.App.3d 1223, 1227, 215 Cal.Rptr. 795.)

In determining the propriety of a summary judgment, the reviewing court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962, 9 Cal.Rptr.2d 306; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 5, 269 Cal.Rptr. 196.) The trial court must consider all evidence set forth in the parties' papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) On appeal, this court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653; Torres v. Cool Carriers A.B. (1993) 26 Cal.App.4th 900, 904, 31 Cal.Rptr.2d 790.)

Formerly, as a general rule, after a contractor had completed a building and the owner had accepted it, the contractor was not liable to third persons for injury caused by the condition of the work done even though negligent in performing the contract. The rule first appeared in Boswell v. Laird (1857) 8 Cal. 469. The court stated the rationale for the rule as follows: "Parties for whom work contracted for is undertaken, must see to it before acceptance, that the work, as to strength and durability, and all other particulars necessary to the safety of the property and persons of third parties, is subjected to proper tests, and that it is sufficient. By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties, the liability of the contractors has ceased, and their own commenced." (At p. 498.) In other words, having a duty to inspect the work and ascertain its safety before accepting it, the owner's acceptance represents it to be safe and the owner becomes liable for its safety.

An exception to the general rule, as applied to contractors who construct structures, first was enunciated in Johnston v. Long (1943) 56 Cal.App.2d 834, 133 P.2d 409 (Johnston ): "[T]he contractor is liable if the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, provided the contractor knows, or should know, of the dangerous situation created by him, and the owner does not know ... and would not discover it by reasonable inspection." (At p. 837, 133 P.2d 409.) This fits nicely with the general rule first articulated in Boswell. If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so. In articulating this exception to the general rule, the Johnston court relied on Stultz v. Benson Lumber Co. (1936) 6 Cal.2d 688, 59 P.2d 100.

In Stultz, the Supreme Court applied to manufacturers the rule enunciated in MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382 (MacPherson ): " 'If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then ... the manufacturer of this thing of danger...