Rebecca Fraser et al vs County of Santa Barbara et al

Case Number

21CV03390

Case Type

Hearing Date / Time

Mon, 10/16/2023 - 10:00

Nature of Proceedings

Motion: Summary Judgment (For Defendant CalPortland Construction)

Tentative Ruling

Case No. 21CV03390

           

Hearing Date: October 16, 2023                                             

HEARING:              Motion by Defendant CalPortland Construction for Summary Judgment, or in the alternative, Summary Adjudication

ATTORNEYS:        For Plaintiffs Rebecca and Marcel Fraser: Chad M. Prentice,

                                                                             MAHO & PRENTICE LLP

 

                                    For Defendant CalPortland Construction:  Edward Sipes, Joshua Watts, CHRISTENSEN HSU SIPES LLP  

                                   

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant CalPortland Construction for summary judgment and/or summary adjudication is denied.

Background:

Plaintiff Rebecca Fraser was injured when she tripped and fell on a piece of raised asphalt while walking on Channel Drive in Montecito on the evening of November 17, 2020.  She contends that the raised asphalt was the result of Defendant CalPortland Construction’s negligence in performing paving operations on and in the vicinity of Channel Drive.  Rebecca Fraser asserts a cause of action against CalPortland Construction (CalPortland) for negligence (1st cause of action).  Her husband, Marcel Fraser, asserts a cause of action against the CalPortland for loss of consortium (3^rd cause of action).

CalPortland moves for summary judgment, or in the alternative, summary adjudication of Plaintiffs’ second and third causes of action, on the following grounds:

1. Plaintiffs’ first cause of action for Negligence has no merit and does not raise a triable issue of material fact because Plaintiffs lack, and cannot obtain, evidence necessary to prove that CalPortland breached a duty owed to Plaintiff.

2. Plaintiffs’ first cause of action for Negligence has no merit and does not raise a triable issue of material fact because Plaintiffs lack, and cannot obtain, evidence necessary to prove that any actions or inactions by CalPortland were a substantial factor in causing Plaintiffs’ alleged injuries and/or damages.

3. Plaintiffs’ third cause of action for Loss of Consortium has no merit and does not raise a triable issue of material fact because Plaintiffs’ first cause of action for Negligence, on which the Loss of Consortium cause of action is premised, is without merit.

CalPortland bases its motion Plaintiffs’ “factually devoid” discovery responses; the expert opinions of its asphalt specialist, Robert Staugaard; and evidence regarding inspections conducted on Channel Drive by the County and CalPortland.

 

Undisputed Facts regarding Plaintiff’s fall and CalPortland’s paving operation

Plaintiff Rebecca Fraser was walking on Channel Drive on the evening of November 17, 2020, when she tripped and fell on a raised lump of asphalt in the roadway across from1169 Channel Drive. (Defendant’s SSUMF 1) The raised asphalt lumps where Plaintiff fell were located on the southern side of the eastbound lane on Channel Drive, closer to the curb than to the center line.  (Defendant’s SSUMF 4)

  Defendant CalPortland Construction had completed a repaving of Channel Drive on September 25, 2020, as part of a county-wide pavement rehabilitation project, using hot mix asphalt.  (Defendant’s SSUMF 6-8).  The paving project required CalPortland to lower utilities, including manholes, prior to the repaving; and to raise the utilities after the paving was completed.  (Plaintiffs’ SSUMF 42, 55)

The process for lowering the utilities involved the use of a jackhammer to dig out and remove existing concrete around a manhole.  The metal manhole cover was then removed and replaced with a metal plate, and the dugout area was backfilled with cold mix asphalt.  (Plaintiffs’ SSUMF 43). The concrete which was dug out was put into the basket of a loader, transferred to an adjacent tractor and hauled to the dump (Plaintiffs’ SSUMF 45, 58).  The cold mix asphalt was brought to the manhole on Channel Drive near Butterfly Lane by tractor from a staging area north of Coral Casino.  (Plaintiffs’ SSUMF 47). 

CalPortland raised the utilities on Channel Drive between October 5-7, 2020. (Plaintiffs’ SSUMF 54).  This process again involved using a jackhammer to remove the asphalt that had previously been placed around the manholes, replacing the manhole cover, and then pouring new concrete into the recently dug out area. (Plaintiffs’ SSUMF 44). 

The material that is removed in this process includes both hot mix and cold mix asphalt. (Plaintiffs’ SSUMF 56) Small and large pieces of asphalt of both hot mix and cold mix asphalt are removed in this process.  (Plaintiffs’ SSUMF 56, 57) The removed cold mix asphalt is thrown by shovel into a skip loader or truck that contains both new asphalt and cold mix asphalt; or if the concrete is too heavy it is removed by a loader.  (Plaintiffs’ SSUMF 60, 61) CalPortland drove the removed asphalt in a skip loader down Channel Drive to a dump truck. (Plaintiffs’ SSUMF 64) CalPortland’s employees have no idea where the skip loader went or where it dumped the removed asphalt on October 7 through 9, 2020. (Plaintiffs’ SSUMF 65). CalPortland’s employees are aware of instances in which material has spilled out of the bucket of an overloaded skip loader or from a misaligned bucket. (Plaintiffs’ SSUMF 62, 63) 

Between September 28 and September 30, 2020, after the paving on Channel Drive was completed, CalPortland paved Hill Road, Olive Mill Road and Spring Road using hot mix asphalt (Defendant’s SSUMF 17,18); Plaintiffs’’ SSUMF 70, 71). The asphalt trucks carrying the hot mix asphalt used to pave Hill Road were driven on Channel Drive. (Plaintiffs’ SSUMF 72).  On October 1, 2020, CalPortland raised 11 water valves on Hill Road (Plaintiffs’ SSUMF 73). The material used in this process included both hot mix and cold mix asphalt.  (Plaintiffs’ SSUMF 75) Any asphalt removed in this process would have been removed in the same manner as on Channel drive, by skip loaders taking it to a dump truck. (Plaintiffs’ SSUMF 76).

CalPortland had transfer trucks on Channel Dive that transferred the hot mix asphalt into the paving equipment by use of a hydraulic tailgate on the back of a truck.  (Plaintiffs’ SSUMF 53).  In pouring asphalt during this process there is leftover residue, or spillage.  (Plaintiffs’ SSUMF 59).

On October 13, 2020, CalPortland returned to Channel Drive to paint the center line striping on Channel Drive.  (Defendant’s SSUMF 240)

Only the County and CalPortland had authority to haul asphalt on Channel Drive between January 1, 2019, and November 30, 2020.   (Plaintiffs’ SSUMF 101)

Analysis:

1. Standards on motions for summary judgment, summary adjudication

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact, and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must “show” that either (a) one or more elements of the “cause of action … cannot be established”; or (b) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) 

To “show” a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) “A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the 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 as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)  If the plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.)  However, if the defendant fails to meet its initial burden the motion must be denied, and the plaintiff need not make any showing at all. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

Where a plaintiff has the burden of proof at trial by a preponderance of evidence, a defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857.  The defendant may rely on either affirmative evidence or discovery responses of the plaintiff showing the absence of evidence necessary to establish at least one essential element of the plaintiff’s case.  (Union Bank v. Superior  Court (1995) 31 Cal. App. 4th 573, 589-590.)  Once a defendant has met its initial burden, the plaintiff must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. (Aguilar, supra, 25 Cal.4th at 857.)  

The court’s sole function on a motion for summary judgment is issue-finding, not issue-determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at 850.)  If there is a single such issue, the motion must be denied. (Versa Tech., Inc. v. Superior Court (Motsinger) (1978) 78 Cal.App.3d 237, 240.) To be “material” for summary judgment purposes, the fact must relate to some claim or defense in issue under the pleadings. Also, it must be in some way essential to the judgment—i.e., if proved, it could change the outcome of the motion. ( Zavala, supra, 58 Cal.App.4th at 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470; see also Cal. Rules of

Court, rule 3.1350(a)(2).)  In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences “in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at 843; Ragland v. U.S. Bank Nat’l Ass’n (2012)

8 209 Cal.App.4th 182,

”A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

2. Triable issues of material fact exist as to whether Plaintiff Rebecca Fraser’s injuries were caused by a breach of duty/negligent act or omission by CalPortland

            As a public works contractor CalPortland owed a legal duty to Plaintiff to protect her from injury resulting from its work. A public works contractor who works on a public highway owes a duty to protect the traveling public from injury that may result from the contractor’s negligence.  The contractor’s duty is not limited to protecting the public from dangerous conditions within the scope of its own work, but extends to a duty to protect the public against dangerous conditions which the public may encounter in the rightful use of the roadway while the contractor is in control of the job site.  Shipp v Western Engineering, Inc. (2020) 55 Cal. App. 5^th 476, 491. 

            There is no dispute that Plaintiff tripped and fell on a raised lump of asphalt located on Channel Drive a few weeks after CalPortland completed its paving operations on that road and in the adjacent vicinity. The only question is whether CalPortland’s activities caused this lump of asphalt to be present on Channel Drive on the evening of November 17, 2020.  None of Defendant’s evidence would require a reasonable trier of fact to find it more likely than not that this piece of asphalt was not caused by CalPortland’s activities on Channel Drive.   Defendant has therefore failed to meet its initial burden of proof on the elements of breach of duty and causation.

1. Plaintiffs’ discovery responses

            CalPortland asserts that Plaintiffs provided “factually devoid’ discovery responses because they were unable to identify any evidence showing that CalPortland “spilt the Subject Asphalt Lumps” on Channel Drive.  Defendant’s SSUMF 40).  Plaintiffs dispute this “fact” as misrepresenting their discovery responses.  Their actual responses state that in paving Channel Drive CalPortland “carelessly spilt small lumps of asphalt on the road.  These small lumps eventually hardened and were not removed by Defendants or their employees, causing tripping hazards”.  Declaration of Joshua Watts, Exhibits 2-20.  

            On Reply CalPortland argues that Plaintiffs have changed the theory of liability against CalPortland as expressed in their discovery responses, from spilling hot mix asphalt to spilling cold mix asphalt; and that it is not required to dispute every potential theory of liability in order to prevail on this motion.  While a defendant may not necessarily be required to dispute remote theories of liability on a motion for summary judgment, under the circumstances presented, in which there is undisputed evidence that CalPortland’s activities involved two types of asphalt, it has not negated the elements of duty or causation by evidence relating to only one type of asphalt.

2. Defendant’s expert evidence

CalPortland provides a declaration from asphalt specialist Robert Staugaard of Asphalt Pavement & Recycling Technologies, Inc., who states that he performed testing and analysis on “clumps of the asphalt” located on top of Channel Drive, referred to as the “Subject Asphalt Clumps”, which were removed in his presence by a County representative.  Mr. Staugaard does not state where on Channel Drive where the clumps of asphalt were located and removed, however, so his declaration does not demonstrate that the clump of asphalt which he tested is in fact that same clump which caused Plaintiff to trip and fall.

Based on his observations and testing Mr. Staugaard opines that the Subject Asphalt Clumps “are not part of the underlying pavement on Channel Drive and are completely separate from the original construction/newly laid pavement of the underlying roadway. Instead, the Subject Asphalt Clumps appear to be a pothole-patching type material that was spilled on the underlying pavement at a time much later than when the street was paved.”  Mr. Staugaard bases his opinion on the facts that (1) the clumps were easily removed from the roadway, which indicates that both the clumps and the roadway were cold when they came into contact; (2) the content was higher than he would have expected in hot mix asphalt; and (3) the clumps contained smaller particles and filler rather than large stones, indicating patch material.

CalPortland cites to Mr. Staugaard’s declaration to support the fact that the Subject Asphalt Clumps were not comprised of the same hot mix asphalt used by CalPortland to pave Channel Drive (Defendant’s SSUMF 36).  Mr. Staugaard does not state, nor does CalPortland assert that the Subject Asphalt Clumps were not comprised of the same cold mix material that was used as backfill in the process of lowering and raising the utilities.  A triable issue of fact therefore exists as to whether the clump of asphalt on which Plaintiff tripped was cold mix asphalt from CalPortland’s paving operation.

3. Inspections by CalPortland and the County

            CalPortland asserts that evidence of inspections conducted by employees of CalPortland and the County on Channel Drive demonstrate that there were no raised asphalt lumps observed on Channel Drive upon the completion of CalPortland’s work, and therefore Plaintiff’s injuries were not caused by CalPortland.  Whether these employees exercised reasonable care in conducting these inspections is a question of fact which is not amenable to resolution on a motion for summary judgment.  Kindrich v Long Beach Yacht Club (2008) 167 Cal. App. 4^th 1252, 1263. 

Regardless, the evidence as to these inspections demonstrates that any inspection of Channel Drive conducted after CalPortland’s utility raising work on that road was completed on October 9, 2020, was either done by an employee driving down the road (Plaintiffs’ SSUMF 80-98), or the evidence that an employee walked the site is equivocal.  Specifically, Dustin Bowlin states in his deposition testimony that the statement in his declaration that he walked Channel Drive on October 9, 2020,was based on his custom and practice, not a particular recollection of events.  (Declaration of Chad Prentice, Ex. 5, Bowlin depo, pp 42:12-45:21).  A drive-by inspection would not necessarily disclose a raised lump asphalt near the curb, which was the location of the asphalt clump tested by Mr. Staugaard, especially if cars were parked along the side of the road between the driver and the curb.    

Triable issues of fact therefore exist as to whether inspections by CalPortland and the County show that the lump of asphalt which caused Plaintiff to trip and fall was not the result of CalPortland’s work.

4. Res ipsa loquitur

Because Defendant has not met its initial burden of proof to negate the element of causation, the burden of proof has not shifted to Plaintiffs to demonstrate that a triable issue of fact exists as to this element of Rebecca Fraser’s negligence cause of action. Therefore, the Court need not address Plaintiffs’’ assertion that causation may be presumed under the doctrine of res ipsa loquitur.

3. Triable issues of material fact exist as to whether Plaintiff Marcel Fraser can establish his third cause of action for loss of consortium

Mr. Fraser’s cause of action for loss of consortium is derivative of his wife’s cause of action for dangerous condition of public property.  As the CalPortland has failed to meet its burden of proof with respect to Ms. Fraser’s cause of action for dangerous condition of public property, it has likewise failed to meet its burden of proof with respect to Mr. Fraser’s cause of action for loss of consortium.

Evidentiary issues:

            The court need only rule on the objections to evidence that it “deems material to its disposition of the motion.”  CCP Section 437(q).

            Plaintiffs object to portions of the declarations of Brian Shiffar, Andy Marselek, Tanner Casner, and Robert Murphy concerning their inspections of Channel Drive (Objections 1-18), and to portions of the declaration of Robert Staugaard regarding his opinions (Objections 19-20).  4-7).  The Court did not rely on these declarations for its disposition of the motion, and therefore need not rule on these objections.