Seo v. All-Makes Overhead Doors

• Citation: 119 Cal.Rptr.2d 160,97 Cal.App.4th 1193
• Decision Date: 24 April 2002
• Docket Number: No. B145131.,B145131.
• Court: California Court of Appeals Court of Appeals
• Parties: Peter SEO, Plaintiff and Appellant, v. ALL-MAKES OVERHEAD DOORS, Defendant and Respondent.

119 Cal.Rptr.2d 160

97 Cal.App.4th 1193

Peter SEO, Plaintiff and Appellant, v. ALL-MAKES OVERHEAD DOORS, Defendant and Respondent.

No. B145131.

Court of Appeal, Second District, Division 5.

April 24, 2002.

Law Offices of Ronald M. Papell and Ronald M. Papell, Los Angeles, for Plaintiff and Appellant.

Aguilar & Sebastinelli and Robert A. Crook, Los Angeles, for Defendant and Respondent.

GRIGNON, J.

A subtenant of commercial premises was injured when his arm was caught in a remote-controlled electronic sliding gate as he manually operated a toggle switch. The subtenant sued a gate repair company that had undertaken occasional as-needed repairs to the gate. The gate repair company moved for summary judgment on the ground it owed no duty to the subtenant to advise the owner of the property of design defects of the gate, unrelated to the repairs undertaken by the gate repair company. The gate repair company had not negligently repaired the gate, had not failed to make any requested repairs, had not undertaken any repairs related to the alleged design defect, had not contracted with the owner of the property to inspect and maintain the gate, and had not voluntarily undertaken a systematic inspection of the sliding gate. We conclude the gate repair company did not owe a duty to the subtenant to warn the owner of the property of design defects unrelated to the repairs. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Susan Oh leased a unit in a commercial office building from the owner of the property. Plaintiff and appellant Peter Seo subleased part of the unit. The office building had an outdoor parking lot enclosed by a fence. Entry to, and exit from, the parking lot was through two sliding gates. The gates were controlled by electronic gate operators. The gates had been manufactured and installed by Larko Gate Company, which has ceased doing business. Plaintiff was injured at the entry gate.

During business hours, the entry gate remained open. Outside of business hours, tenants opened the gate with remote controls. The remote controls did not close the gate. Instead, the gate was on a timer and would close 20 seconds after it had been opened. If someone operated the remote control while the gate was open, the gate would remain open for an additional 20 seconds before automatically closing. On a control box inside the fence was a toggle switch, which was used to keep the gate open for extended periods, such as during business hours. When the gate was open, the toggle switch could be activated to prevent the gate from closing.

Plaintiff did not have a remote control to open the gate. When he needed to enter the property before the gate was opened for the day, he would either borrow Oh's remote control, follow another tenant through the gate, or ask a security guard to open the gate for him. After business hours on May 11, 1999, plaintiff drove his car out of the parking lot through the open entry gate. Plaintiff decided to close the gate behind him. From outside the fence, plaintiff reached his arm between the bars of the fence to operate the toggle switch on the control box. Plaintiff placed his arm between two vertical bars: a stationary bar of the fence and a moveable bar of the sliding gate. When plaintiff activated the toggle switch, the gate immediately began to close. The bars of the gate began to move, and plaintiffs arm was crushed between the gate bar and the fence bar.¹

Defendant and respondent All-Makes Overhead Doors was a gate repair company, owned by Vincent Wimbish. Defendant was an independent contractor, not an employee or agent of the owner of the property. Defendant had neither manufactured nor installed the gate that injured plaintiff. Defendant had not installed the toggle switch. Defendant did not have a regular contract to service the gate for the owner of the property. Defendant had not agreed to warn the owner of the property of any design defects of the gate or install safety features that might have prevented plaintiffs accident. Defendant had repaired the sliding gate on occasion as needed. Defendant was not the only gate repair company to repair the gate. On April 16, 1999, another gate repair company replaced the toggle switch, which was damaged. However, if the gate required repair, the owner of the property generally contacted defendant. Defendant first repaired the gate in December 1996, after an automobile had struck the gate. Subsequent repair calls included a stuck electric lock (Feb.1998), broken antennae (Mar.1998), a tripped motor (Apr.1998), a low voltage supply (July 1998), and an overheated brake switch (Apr.1999). In 1999, defendant was called to the property on an average of once a month to repair the gate, assist with keys that did not fit, install a new entry gate next door, and weld walk-through gates. Whenever Wimbish was called to repair the gate, he checked the gate potentiometer, a safety device that controls the strength of the electric current.² Wimbish would not repair the gate unless the potentiometer was functional. Wimbish was aware of the possibility of injury if a person placed an arm between the bars of a sliding gate.

After the accident, the owner of the property contracted with defendant to install wire mesh over the bars of the gate and relocate the switch to a place unreachable from outside the gate.

On September 7, 1999, plaintiff brought this action for negligence against defendant gate repair company, the owner of the property, and the manager of the property.³ Plaintiff alleged defendant had acted as an agent for the owner and the manager of the property in maintaining the electronic gates on the property. Plaintiff alleged three problems with the gate: a malfunction in the gate's electronic mechanism that allowed the gate to close immediately;⁴ an absence of safety features, such as wire mesh, which would have prevented him from reaching through the bars; and the placement of the toggle switch in a location reachable from outside the fence. Plaintiff alleged defendant gate repair company had been negligent in failing to warn of or correct these defects.

Defendant moved for summary judgment on the ground it owed no duty to plaintiff to warn the owner of the property of or correct any design defects of the gate. In opposition, plaintiff argued defendant had a legal duty to warn or repair because of defendant's superior knowledge of the gate and its dangers. Plaintiff also argued defendant had undertaken a duty to inspect and repair the gate on a regular basis, in light of its monthly repair calls and Wimbish's regular inspection of the potentiometer. The trial court granted defendant's motion for summary judgment. Plaintiff moved for reconsideration, arguing defendant had undertaken the duty of inspection and repair owed to plaintiff by the owner of the property. The trial court denied plaintiffs motion for reconsideration. Judgment was entered in favor of defendant. This timely appeal followed.

DISCUSSION

Standard of Review

"The policy underlying motions for summary judgment and summary adjudication of issues is to `"promote and protect the administration of justice, and to expedite litigation by the elimination of needless trials."'" (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323, 39 Cal.Rptr.2d 296.)

"Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) The motion and the opposition to the motion "shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (Id., subd. (b).) Separate statements setting forth plainly and concisely all material facts which the parties contend are undisputed must be included. (Ibid.) "Evidentiary objections not made at the hearing shall be deemed waived." (Ibid.) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence ... and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted ... on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Id., subd.(c); KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, 37 Cal.Rptr.2d 431.)

A defendant or cross-defendant meets his or her burden upon a motion for summary judgment or summary adjudication if that party has proved "one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (o)(2).) The defendant need not conclusively negate an element of the plaintiffs cause of action, but must only show that one or more of its elements cannot be established. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The burden of proof at trial is relevant to the burden of production borne by the defendant moving for summary judgment. "[I]f a defendant moves for summary judgment against [a plaintiff who would bear the burden of proof by a preponderance of evidence at trial], he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not." (Id. at p. 851, 107 Cal.Rptr.2d 841, 24 P.3d 493, original italics.)

"Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists...." (Code Civ. Proc., § 437c, subd. (o )(2).) In opposing...