Fraser v. LG Electronics And Related Cross Complaints
Fraser v. LG Electronics And Related Cross Complaints
Case Number
22CV00171
Case Type
Hearing Date / Time
Wed, 11/01/2023 - 10:00
Nature of Proceedings
Inzunza’s Motion for Summary Judgment/Summary Adjudication
Tentative Ruling
Plaintiffs Kristin Fraser and Jason Lloyd [“Plaintiffs”] are represented by Brett C. Templeman, Benjamin L. Baumer.
Plaintiff Garrison Property and Casualty [“Garrison”] is represented by Kellie L. Terhufen.
Defendant L.G Electronics [“LG”] is represented by Cameron W. Thomas, William A. Bossen.
Defendant Inzunza Trucking Corp (“Inzunza”) is represented by German A. Marcucci, Dominique Sicari.
Cross Defendant Lowe’s Home Centers, LLC [“Lowe’s” and sometimes “Lowes”] is represented by Joan E. Cochran, Lisa Kralik Hansen, Deborah A. Smillie.
Issue
Inzunza’s Motion for Summary Judgment/Summary Adjudication
Ruling
- For the reasons set out below Inzunza is not entitled to summary judgment or summary adjudication as triable issues of material fact exist whether Inzunza’s installation caused or contributed to causing the fire.
- The MSC set for 11/3/23 and the Final CMC set for 12/1/23 and the Trial Dates commencing 1/3/24 are all confirmed. This case was filed 2 years ago on 1/14/22 and will be resolved as scheduled.
Analysis
Background Reminders
Pretrial Conference is on 1/3/24 at 11:30 am; all trial documents due one week in advance on 12/27/23. First jury panel comes over on 1/4/24 at 9 am and the second panel at 1:30pm on 1/4; we have agreed to reserve the following days for trial: 1/4; 1/5; 1/8; 1/9; 1/11; 1/12; 1/15 [holiday]; 1/16; 1/18; 1/19; 1/22; 1/23; 1/25; 1/26 = Total 13 days. The Court had not ignored the fact that counsel has said only 7-10 days needs to be reserved but the Court elected to err on the side of reserving 14 days. Be sure to clear all these dates with all potential witnesses!
Plaintiffs’ Motion to file a FAC
The Court is aware of the fact that on 10/13/23 Plaintiffs filed a motion seeking leave of Court to file a First Amended Complaint; Plaintiffs contend that the FAC “will add supplemental allegations against all Defendants to support Plaintiff Jason Lloyd’s claim for loss of consortium;” the motion is made on the grounds that it is in the interests of justice and judicial efficiency to allow Plaintiffs leave to file their First Amended Complaint; supplemental allegations clarify the nature of Plaintiffs’ claims against all Defendants, and inclusion of the supplemental allegations will not result in prejudice to the Defendants; allowing the proposed amendment will promote efficient resolution of all claims between the parties; Motion is set for hearing on 11/22/23.
Inzunza’s Motion for Summary Judgment and/or Summary Adjudication
Filed 5/17/23; originally set for 8/2/23; moves for summary judgment on the claims of Garrison; Lowes; and LG; and all of them. If summary judgment of all causes of action is not granted, then Inzunza independently moves for summary adjudication separately as to each cause of action in the Complaint of Plaintiff Garrison and respective Cross-Complaints of Lowes and LG alleged against Inzunza as follows:
- The first cause of action in Garrison’s Complaint (Filed in Related Action) against Inzunza alleging general negligence is without merit.
- The first cause of action in Lowes’ First Amended Cross Complaint (“FACC”) (Filed in Instant Action) against Inzunza for Express Contractual Indemnity, the second cause of action in Lowes’ FACC against Inzunza for Equitable Indemnity, the third cause of action against Inzunza for Declaratory Relief; and the fourth cause of action in Lowes’ FACC against Inzunza for Breach of Contract for Benefit of Third Party are without merit.
- The first cause of action in Lowes’ Cross Complaint (“CC”) (Filed in Related Action) against Inzunza for Equitable Indemnity and the second cause of action in Lowes CC against Inzunza for Breach of Contract are without merit.
- The first cause of action in LG’s Cross-Complaint against Inzunza for Equitable Indemnity and the second cause of action in LG’s Cross-Complaint against Inzunza for Declaratory Relief are without merit.
Supported by Points and Authorities; filed 5/17/23; summarized; Garrison, Lowes, and LG cannot prove that the fire at Plaintiffs’ Home was caused by Inzunza’s installation of the dryer; Inzunza requests that this Court grant its Motion for Summary Judgment.
Supported by a Separate Statement of Facts; filed 5/17/23; 22 pages; summarized; submits the Separate Statement of Undisputed Material Facts in support of its Motion for Summary Judgment on the claims of Plaintiff Garrison; Defendant LG; and Defendant Lowes, and all of them.
Supported by the Declaration of Pablo Gutierrez; filed 5/17/23; 6 pages; summarized; he was a subcontractor of Inzunza; began working as an appliance installer around 2010 and continued to do so for approximately 10 years including approximately 2 years as subcontractor for Inzunza; installed or assisted with the installation of several hundred clothes dryers; along with co-worker, Arturo Rodriguez, he performed the installation and
installed in accordance with Defendant LG specifications as outlined in the dryer’s instruction manual which included the installation of the Foil Flexible Duct to the dryer’s rear exhaust port and exterior vent utilizing the two galvanized clamps, and the flexible gas line which was connected to the dryer and gas supply using industry standard pipe thread sealant; after the flexible gas line was installed, it was leak tested using a gas leak testing solution; the “knockout” holes on either side of the dryer for alternative venting configurations were not removed by him or Mr. Rodriguez during the delivery and/or installation of the dryer and neither he nor Mr. Rodriguez modified the dryer's venting in any way from the time the dryer was picked up from Lowes to the time the dryer was installed.
Supported by the Declaration of Dominique Sicari; filed 5/17/23; 236 pages; summarized; he is an attorney; counsel for Defendant Inzunza; attaches true and correct copies of (1) Complaint for damages filed by Plaintiff’s on January 14, 2022; (2) First Amended Complaint for damages filed on October 14, 2022; (3) Cross-Complaint for damages filed by Cross-Complainant Lowes on December 22, 2022; (4) Cross-Complaint for damages field by Cross-Complainant LG on December 2, 2022; (5) signed verification from sworn
responses of Plaintiff Kristen Fraser to LG’s Special Interrogatories; (6) copy of the purchase receipt for the subject dryer, and produced in discovery by Plaintiff Kristen Fraser; (7) copy of the Carpinteria-Summerland Fire Investigation Summary, Incident Number 0000190 concerning the fire at issue in this action, and produced in discovery by Plaintiff Kristen Fraser; (8) copies of pages 1-3 and signed verification from sworn responses of Lowes’ responses to Inzunza’s Request for Admissions; (9) copies of pages 1, and 13-14 and signed verification from sworn responses of Lowes’ responses to Inzunza’s Judicial Counsel Form Interrogatories; (10) copy of a printout from Lowes’ website for the “4-INX8-FT FOIL TRNSTN DCT” as referenced in the purchase receipt, which is a Lambro Foil Flexible Duct included as part of Plaintiffs’ purchase of the dryer; (11) copy of a printout from Lowes website for the “STAINLESS STEEL WTR HEATE” as referenced in the purchase receipt, which is a BrassCraft 48-in Flare Inlet x FIP Outlet Stainless Steel Gas Connector included as part of Plaintiffs’ purchase of the dryer; (12) copy of a printout from Lowes website for the “GALVANIZED FULL CLAMP” as referenced in the purchase receipt, which is a 4-1/16-in to 4-in dia Galvanized Full Clamp included as part of Plaintiffs’ purchase of the dryer.
Supported by the Declaration of Nestor Camara; filed 5/17/23; 15 pages; summarized; a professional fire investigator; contracted to assist in the defense of this action by Defendant Inzunza; consulted with clothes dryer manufacturers regarding fires and failures; Plaintiffs blame the fire giving rise to this lawsuit is a LG Model DLG7101W (“the dryer”); has inspected the dryer, as well as reviewed the instruction manual for the dryer, purchase receipt of the dryer, flexible gas connector, and dryer vent, as well as all photos produced by the parties as part of discovery; following an inspection of Plaintiff’s residence, after it had been repaired, and an examination of the dryer, and all items collected including the dryer vent and gas flex line, as well as the documents identified above, no evidence was present that the dryer was not installed at Plaintiffs’ residence correctly and in accordance with manufactures specifications and therefore the installation was not a factor as to the cause of the fire at Plaintiffs’ residence; after an inspection of Plaintiffs’ home and the subject dryer by all experts in this case, a definitive cause of the fire has not yet been determined. However, it can be determined that the installation of the dryer was not the cause of or contributing factor to the fire.
Plaintiffs Amendment to Complaint
Filed 9/11/23; Doe 1 true name is INZUNZA TRUCKING CORP.
Plaintiff Garrison’s Opposition to Inzunza’s SJ Motion
Filed 10/18/23; 156 pages; summarized; sufficient evidence exists to permit a reasonable finder of fact to determine that Inzunza installed the Dryer without the knockouts or proper ventilation, thereby causing a condition that caused the fire at issue; the existence of this alternative theory proves that Inzunza cannot demonstrate that there are no triable issues of fact such that the motion should be granted as a matter of law. In fact, multiple triable issues of material fact exist and this cause of action for negligence on behalf of Garrison must be submitted to a jury.
Supported by the Declaration of Kellie L. Terkhufen; 4 pages; summarized; attorney of record for Garrison Property and Casualty Insurance Company; attaches (1) copy of excerpts from the second session deposition of Fire Investigator Michael LoMonaco, taken in this matter on October 2, 2023; (2) copy of the Owner’s Manual, including installation instructions, pertaining to the LG dryer at issue in this matter; (3) copy of Kristin Fraser’s Responses to Defendant LG Electronics’ Supplemental Interrogatories: Special Interrogatories; (4) copy of the Declaration of engineer George White, provided in
support of Garrison’s opposition to Inzunza’s motion for summary judgment. [Note: The Court did not find that “copies” of any such documents attached to the Declaration.]
Joinder Filed
On 10/18/23 Plaintiff, Kristin Fraser and Jason Lloyd, Individually as Trustee of the Jason Lloyd Trust gave notice of their joinder in the opposition of Garrison’s opposition to Cross-Defendant Inzunza’s Motion for Summary Judgment on the claims of Plaintiff Garrison; Defendant LG; and Defendant Lowe’s, and all of them.
Cross-Complainant LG’s Opposition
to Inzunza’s Summary Judgment/Adjudication Motion
Filed 10/18/23; 7 pages; summarized; Cross-Defendant Inzunza’s Motion for Summary Judgment or, alternatively, for Summary Adjudication as against LG must be denied because: (1) Inzunza has not shown that LG has no evidence and cannot obtain evidence to support an element of its claims; (2) the purported evidence offered by Inzunza is incompetent and otherwise inadmissible such that Inzunza has not made the necessary showing that it is entitled to judgment or adjudication of issues or shifted the burden of production to LG; and (3) the evidence establishes that there are questions of fact that preclude summary judgment or adjudication. Inzunza offers these legal propositions and authorities in its Motion, Inzunza does not provide any of the referenced types of evidence to support an argument that LG does not possess or cannot reasonably obtain evidence to support its claims or essential elements thereof. Inzunza does not offer any testimony of LG’s witnesses in support of its Motion (let alone any such witnesses testifying to a lack evidence to support LG’s claims). Inzunza does not offer any of LG’s discovery responses in support of its Motion (let alone any factually devoid discovery responses from LG). Inzunza does not offer any admissions made by LG in depositions or responses to Requests for Admissions (let alone admissions regarding a lack of supporting evidence). The evidence establishes that even if some of Inzunza’s evidence is admitted and considered, LG has met any burden arguably placed on it and that there are questions of material fact regarding whether the knockouts were present at the time of or after the installation, whether the dryer was properly installed, the post-fire condition of the dryer and components and the cause of the fire ignition. As such, Inzunza’s Motion for Summary Judgment/Adjudication should be denied.
Supported by the Declaration of John Nemeth; filed 10/18/23; 3 pages; summarized; from 2009 to the present, he has worked as an electrical engineer specializing in analysis of electrical engineering services and fire-related incidents; conducted or supervised over 800 investigations; lawsuit arises from a fire incident allegedly arising from an LG dryer, Model No. DLG7101W; reviewed the following documents related to this model LG dryer: Owner’s Manual, Quick Use Guide, Service Manual, Parts List, Parts Diagram, Schematic and Wiring Diagrams and Technical Data Sheet; additionally participated in two joint inspections of the subject product; observed that the knockout on the right back side of the
subject dryer was missing; that installation of the dryer without knockouts in place is improper and contrary to written LG Installation Instructions; the knockout on the right rear of the subject product was missing at the time of the fire; he bases this conclusion on the fact that no melted metal or plastic knockout pieces/covers on that side of the dryer or in adjacent debris pile; there is no evidence that this fire reached flashover temperatures that would have consumed a knockout piece/cover; believes this fire started at the rear right side of the product near the gas burner; that the absence of the knockout caused or substantially contributed to causing the fire in that the open area permitted additional oxygen and likely light debris to ignite or burn at a faster rate than had the knockout been in place.
Supported by Separate Statement filed of disputed and undisputed material facts and additional material facts in response to Inzunza’s separate Statement; 20 pages; read and considered.
LG’s Evidentiary Objections
Filed 10/18/23;
Objection to Gutierrez Declaration,
#1. Overruled
#2. Overruled – objections go to the weight of testimony not its admissibility
#3. Overruled – objections go to the weight of testimony not its admissibility
#4. Overruled
#5. Overruled – objections go to the weight of testimony not its admissibility
#6. Overruled – objections go to the weight of testimony not its admissibility
#7. Overruled
Objection to the Sicari Declaration
#8. Overruled
#9. Overruled
#10. Overruled
#11. Overruled
#12. Overruled
#13. Overruled
#14. Overruled
#15. Overruled
#16. Overruled
#17. Overruled
#18. Overruled
Objection to the Camara Declaration
#19. Overruled - objections go to the weight of testimony not its admissibility
#20. Overruled - objections go to the weight of testimony not its admissibility
#21. Overruled
#22. Overruled
#23. Overruled
#24. Overruled
#25. Overruled
#26. Overruled - objections go to the weight of testimony not its admissibility
#27. Overruled
Lowe’s Points and Authorities
Filed 10/18/23; 39 pages; summarized; opposition of Lowe’s to Inzunza SJ Motion; contends (1) Inzunza installed the subject LG dryer in the home of Plaintiffs Fraser and Lloyd via Inzunza’s subcontractors; (2) Inzunza and its subcontractors were the last ones to set the dryer in place and hook up the transitional 4-inch diameter duct from the dryer to the garage wall vent by the man door to the right side of the dryer; (3) Inzunza moves for summary judgment and/or adjudication claiming (erroneously) that it cannot be proven that Inzunza caused or contributed to the fire; (4) triable issues of fact abound, and the element of causation cannot be summarily adjudicated in favor of Inzunza; (5) the Motion of Inzunza should be denied.
Points out the declaration of Nestor Camara submitted by Inzunza is contradicted by the declaration of Lowe’s expert Richard Mumper, which should result in the denial of Inzunza’s Motion. The Inzunza installers remembered nothing regarding the installation of the subject dryer. (Add’l Facts 14-15.) Expert Richard Mumper opined, contrary to Inzunza’s expert Nestor Camara, that Inzunza installers failed to leave enough room between the right side of the dryer and the wall vent by the man door for the four-inch transitional duct, creating a low flow condition that contributed to the fire. In addition, Fire Investigator LoMonaco confirmed the right side knock out panel was open after the fire with no debris found for the missing knock out panel, which would have required a tool to open. LoMonaco testified, “I feel the missing knockouts contributed to the fire. And had the knockouts – again, we can’t find them, had they been there, I don’t think we would be all sitting here today talking about the fire.” (Add’l Fact 37.) For all these reasons, Inzunza’s Motion for Summary Judgment/Adjudication should be denied.
Points out the LG dryer was purchased from a Lowe’s retail store location in Ventura on December 26, 2019. Prior to the dryer being unboxed by Inzunza upon delivery to the home by Inzunza, the dryer was in an unopened box as shipped from the manufacturer LG; while the dryer was in the possession of retailer Lowe’s, the box remained unopened and in the original box from LG. The dryer was installed in the home of Plaintiffs Fraser and Lloyd on December 28, 2019, by Pablo Gutierrez and Arturo Rodriguez, who worked for and were paid by Inzunza. The fire occurred on January 21, 2020, 24 days after installation. The homeowners had used the dryer at least 6-8 times with no issue before the fire; in support of the Motion, Inzunza relies on the Declarations of installer Gutierrez and fire investigator Nestor Camara; in deposition both installers Gutierrez and Rodriguez testified they recalled nothing about the dryer installation in the Fraser/Lloyd home. Lowe’s filed a cross-complaint against Inzunza in the Fraser Action for express contractual indemnity, equitable indemnity, declaratory relief, and breach of contract for benefit of third party. Lowe’s filed a cross-complaint against Inzunza in the Garrison Action for equitable indemnity and breach of contract. In the Motion, Inzunza moves for summary judgment/adjudication without addressing the distinct elements of each separate cause of action and despite the fact that the Court already granted the Lowe’s Motion for Summary
Adjudication concerning the duty to defend under Crawford. That motion was granted on August 9, 2023. Inzunza has not proven that its defense and indemnity obligations to Lowe’s have ended.
Inzunza failed to address the elements of each cause of action asserted by Lowe’s for express contractual indemnity, equitable indemnity, declaratory relief, and breach of contract for benefit of third party under Civil Code § 1159.
“If a triable issue of material fact exists, summary adjudication must be denied.” Code Civ. Proc. § 437c(c). “Under the new method for establishing a prima-facie entitlement to judgment, the moving party must demonstrate a negative, i.e., that there is no evidence to support an element of the opponent's case.” Rio Linda Unified School Dist. v. Superior Ct., 52 Cal.App.4th 732, 739 (1997). Any “doubts about the propriety of granting the motion should be resolved in favor of the opposing party. In examining the sufficiency of declarations filed in connection with a summary adjudication motion, the declarations of a moving party are strictly construed and those in opposition are liberally construed.” Everett v. Superior Ct., 104 Cal.App.4th 388, 392 (2002) (citations omitted).
Inzunza’s notice of motion concedes that the Court can only grant summary adjudication if all causes of action in each of the Lowe’s cross-complaints are adjudicated in favor of Inzunza as set forth in Issue 2 (four causes of action) and Issue 3 (two causes of action) of the notice. The Court is unable to adjudicate in favor of Inzunza any individual cause of action in the Lowe’s cross-complaints given the wording and structure of the notice. Summary adjudication was not sought against any individual cause of action; rather, Inzunza grouped all causes of action from the Lowe’s two cross-complaints in a single issue for each cross-complaint in violation of the above procedural rules for seeking summary adjudication. This infirmity in Inzunza’s notice prevents summary adjudication of any individual cause of action in the Lowe’s cross-complaints in Inzunza’s favor.
Supported by the Declaration of Joan Cochran; filed 10/18/23; summarized; she is lead counsel for Lowe’s; attaches (1) copy of the Fraser/Lloyd Plaintiffs Doe Amendment served on Lowe’s, naming Inzunza place of Doe 1 dated September 8, 2023; (2) copy of the Court’s Minute Order entered on August 9, 2023, granting the Motion for Summary Adjudication of Lowe’s on the contractual defense owed by Inzunza of Lowe’s under the contractual indemnity provision of the Hauler Agreement and based on Crawford, 44 Cal4th 541 (2008); (3) copy of excerpts of the deposition transcript of installer Pablo Gutierrez; (4) copy of excerpts of the deposition transcript of installer Arturo Rodriguez; (5) copy of excerpts of the deposition transcript of Pedro Inzunza, the person most knowledgeable designee of Inzunza; (6) copy of excerpts of the deposition transcript of Jeffrey Riggatire, the person most knowledgeable designee of Lowe’s; (7) copy of excerpts of the deposition transcript of fire investigator Todd Jenkins; (8) copy of excerpts of the deposition transcript of fire investigator Michael LoMonaco; (9) copy of a photograph taken by the fire department depicting the right side missing knock out panel on the dryer; (10) copy of the cover page and page 15 of the LG Owner’s Manual produced by LG; (11) copy of the Certificate of Insurance produced by State National Insurance Company in response to a document subpoena from Lowe’s in this case; (12) copy of another Certificate of Insurance produced by State National Insurance Company in response to a document subpoena from Lowe’s in this case; (13) copy of the Insurance Services Office standard insurance policy form CG 2037 additional insured endorsement which provides completed operations coverage; (14) copy of pertinent portions of the State National insurance policy issued to Inzunza produced in response to the document subpoena from Lowe’s in this case; (15) copy of pertinent portions of Inzunza’s further responses to Requests for Admission from Lowe’s in this case; (16) copy of pertinent portions of Inzunza’s responses to Form Interrogatory No. 17.1 from Lowe’s in this case; (17) copy of pertinent portions of Inzunza’s responses to Requests for Admission from Lowe’s in this case; (18) copy of Richard Mumper’s curriculum vitae; (19) inspection of the dryer took place on January 26, 2023; attended that dryer inspection as counsel for Lowe’s along with the expert retained by Lowe’s, Richard Mumper; (20) copy of excerpts of the deposition transcript of Plaintiff Kristin Fraser.
Supported by the Declaration Richard Mumper; filed 10/18; 5 pages plus CV exhibit; summarized; he is an expert in the areas of fire investigation and appliances, such as LG gas dryers; hired to assist in the defense of this matter by counsel for Lowe’s; has over 26 years of experience in investigating origin and cause of fires involving gas dryers similar to the LG Dryer; the cause of the fire was a combination of factors including an accumulation of lint on the burner cone being pulled in through the open holes from the knock out panels on the right and left sides of the dryer; there was a likely low flow condition caused by the collapse of the transition duct connecting to the vent on the right side of the wall since the diameter of the duct was four inches and the space between the dryer and wall was less than four inches as shown by the photo taken after the installation of the dryer was completed by Inzunza; the dryer was overloaded and therefore product misuse was an additional contributing cause of the fire in the dryer; the conclusion of Inzunza’s expert is without merit; when the dryer left Lowe’s in a box, the knock out panels on the right and left side of the dryer were intact; tooling is needed to remove the knock out panels; the knock out panels were either taken out with the special tooling by Inzunza’s installers and/or at the direction of the homeowners.
LG’s Declarations filed 10/19/23
Declaration of Cameron Thomas offered in Opposition to Inzunza’s SJ Motion; 186 pages; summarized; on October 2, 2023, he attended and participated in the second session of the deposition of Michael LoMonaco; copies of portions of the transcript of Mr. LoMonanco’s testimony is attached; in conjunction with the second session of Mr. LoMonaco’s deposition, Mr. LoMonaco’s current Curriculum Vitae was marked as Exhibit A to the transcript; is attached; in the course of the second session of Mr. LoMonaco’s deposition, the Carpinteria-Summerland Fire Fire/Arson Investigation Unit Initial Response Summary was marked as Exhibit C to the transcript; is attached; in the course of the second session of Mr. LoMonaco’s deposition, the Carpenteria-Summerland Fire Case Initiation Report was marked as Exhibit L to the transcript; is attached; in the course of the second session of Mr. LoMonaco’s deposition, a Document Headed NFIRS-1 Basic was marked as Exhibit N; is attached; on June 20, 2023, he attended and participated in the deposition of Pablo Gutierrez; portions of the transcript of Mr. Gutierrez’ testimony is attached.
Exhibits Submitted on 10/19/23
Part 1 of 4 = 129 pages; Exhibits A-W
Part 2 of 4 = 37 pages; Exhibit M-R
Part 3 of 4 = 34 pages; highlights “This Endorsement Changes the Policy. Please Read it Carefully. Additional Insured – Owners, Lessees or Contractors – automatic status when required in construction agreement with you.”
Part 4 of 4 = 63 pages; “This Endorsement Changes the Policy. Please Read it Carefully. Blanket additional insured.”
Inzunza’s Reply
Evidentiary Objections to the testimony of Michael LoMonaco;
Rulings
#1. Overruled
#2. Overruled
#3. Overruled
#4. Overruled
#5. Overruled
#6. Overruled
#7. Overruled
Evidentiary Objections to the testimony of George White [Declaration];
Rulings
#1. Overruled
#2. Appears to have been skipped
#3. Overruled
- Overruled
- Overruled
- Overruled
- Overruled
Evidentiary Objections to the testimony of John A. Nemeth [Declaration];
Rulings
#1. Overruled
#2. Overruled
#3. Appears to have been skipped
#4. Overruled
#5. Overruled
Evidentiary Objections to the testimony of Richard Mumper [Declaration];
Rulings
#1. Overruled
#2. Overruled
#3. Overruled
#4. Overruled
#5. Overruled
#6. Overruled
Combined Reply to Oppositions
Filed 10/27/23; 65 pages; summarized; it is the combined reply to oppositions to Inzunza’s MSJ filed by (1) Garrison and the joinder thereto filed by Fraser and Lloyd (Fraser and Lloyd may sometimes be referred to collectively as “Plaintiffs”), (2) LG and Lowe’s; this is a combined reply, to 3 separate oppositions to motions for summary judgment and a joinder thereto; Inzunza contends, and undisputed material facts show, that Inzunza’s actions had no relation to the fire that occurred at Plaintiff’s home. Inzunza’s MSJ presented a simple question to those parties making claims against Inzunza: Did Inzunza do or fail to do something, that ultimately led to the fire? This simple question begs for a simple answer from those making claims against Inzunza; rather than those making claims against Inzunza presenting a simple answer, they have presented speculations, conjectures, misdirection, and made flat out misrepresentations in a thinly vailed attempt to disguise the fact that they have no answer to the simple question presented by Inzunza’s MSJ; answers at best are “maybe;” more accurately, the answer is simply that there are no material facts to show that Inzunza’s actions or inactions had any bearing on the fire at Plaintiffs’ home; whether the answer is “no” or even “maybe,” Inzunza’s MSJ must be granted. Inzunza implores this Court not to fall into Lowe’s, LG, Garrison, and Plaintiffs’ inappropriate attempt to submit so much immaterial and speculative information as to cloud the facts; Inzunza implores this Court to see the issues here for what they are and grant Inzunza’s MSJ; in opposing summary judgment, opposing parties “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result; mere possibility of such 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 direct a verdict for the defendant.
Plaintiffs submitted no evidence in opposition to Inzunza’s MSJ. Instead, Plaintiffs simply
joined in the opposition filed by Garrison because Plaintiff’s have no evidence to oppose Inzunza’s MSJ. In its opposition to Inzunza’s MSJ, a declaration submitted by Garrison’s expert sets forth certain potential general installation oversights which have no bearing on the cause of the fire and, further, Garrison’s expert sets forth no opinions whatsoever to even suggest Inzunza’s action or inactions have any bearing on the fire; similar to Garrison, a declaration submitted by LG’s expert sets forth certain potential general issues but also LG’s expert sets forth no opinions whatsoever to even suggest Inzunza’s action or inactions have any bearing on the fire; as LG’s expert offers no opinions whatsoever that Inzunza’s actions or inactions caused the fire, this Court must grant Inzunza’s MSJ. declaration submitted by Lowe’s expert, Mr. Richard Mumper, is the most egregious as it’s replete with speculation and conjecture. Garrison’s opposition (and other oppositions) centers around a missing knock out on the side of the dryer, arguing that that the missing knockout caused or contributed to the fire. Without any admissible evidence in support, Garrison argues that the knockout was removed by Inzunza’s installers when the only evidence available is directly contrary to that assertion. LG posits the same argument about missing knock outs as set forth by Garrison; LG’s arguments do not preclude the granting of Inzunza’s MSJ; to the extent LG argues that Fire Department investigator, Mr. LoMonaco places the blame of the fire on an “installation deficiency.” Lowe’s contradicts this statement and concedes, that “The Fire Department ultimately determined the fire ‘originated from within the dryer, but we did not determine what caused it.’”
Lowe’s sets forth the same argument about the facts surrounding the installation of the
dryer as set forth by Garrison and LG; those arguments are similarly without merit for the same reasons.
Any defense and/or indemnity obligation Inzunza may owe to Lowe’s is extinguished on a finding that Inzunza was not liable; Lowe’s points out, the contractual provision requiring Inzunza to defend and Indemnify Lowe’s limits the obligation to acts only “arising directly or indirectly from, as a result of or in connection with, any acts or omissions to act by [Inzunza]” and/or “arising from or in any way related to [Inzunza’s] performance, duties, or responsibilities…” This Court should find that Inzunza’s acts and/or omissions did not cause the fire that is the subject of this lawsuit; based on such a finding, this Court would
then be required to find that Inzunza therefore lacks any obligation to defend and/or indemnify Lowe’s. Lowe’s concedes at pages 7 and 8 of its opposition that it was named as an additional insured under Inzunza’s insurance policy; Lowe’s now presents the novel
argument that it was not the correct type of additional insurance; this was not disclosed by Lowe’s in comprehensive written discovery and must be disregarded. The additional insured requirement, and any additional insured obligation, would only apply as to any negligent acts or omissions of the named insured, Inzunza; this Court should grant Inzunza’s MSJ, the granting of the MSJ and corresponding finding that Inzunza was not liable negates any additional insured benefits to Lowe’s.
Supported by the Declaration of German A. Marucci; attaches true and correct copies of (1) relevant portions from the the deposition of Plaintiff Kristen Fraser; (2) relevant portions from the deposition of Plaintiff Jason Lloyd; (3) relevant portions from the deposition of Pablo Gutierrez; (4) relevant portions from the deposition of Arturo Rodriguez; (5) relevant portions from the deposition of Michael LoMonaco; (6) relevant portions from Defendant/Cross-Defendant/Cross-Complainant Lowe’s Home Centers, LLC’s Responses to Defendant/Cross-Defendant/Cross-Complainant’s First Set of Form Interrogatories.
Objections/Responses in Opposition to Lowes
Additional Disputed Facts of Lowe’s Home Centers
Rulings
#1. No Objection
#2. No Objection
#3. No Objection
#4. No Objection
#5. No Objection
#6. No Objection
#7. Overruled
#8. Overruled
#9. Overruled
#10. No Objection
#11. Overruled
#12. Overruled
#13. Sustained
#14. Overruled
#15. Overruled
#16. No Objection
#17. Overruled
#18. Overruled
#19. Overruled
#20. Overruled
#21. Overruled
#22. Overruled
#23. Overruled
#24. No Objection
#25. Overruled
#26. No Objection
#27. Overruled
#28. Overruled
#29. Overruled
#30. No Objection
#31. No Objection
#32. Overruled
#33. No Objection
#34. No Objection
#35. No Objection
#36. Overruled
#37. Overruled
#38. No Objection
The Court’s Conclusion
The Court has considered all the evidence submitted at length. Reasonable people can differ. But there is little doubt in the Court’s mind, on this Motion. Inzunza is not entitled to summary judgment as triable issues of material fact exist as to whether Inzunza’s installation caused or contributed to causing the fire. The causation issue raised by Inzunza is inherently factual. Inzunza is not entitled to summary adjudication on any cause of action given Inzunza’s failure to meet its moving party burden on each cause of action, the defects in the notice and moving party separate statement. Inzunza’s objections consistently go to the weight of the evidence and not its admissibility. There are many creditable experts witnesses on both sides [indeed all sides] that raise triable issues of fact. Sufficient evidence exists to permit a reasonable finder of fact to determine that Inzunza installed the Dryer without the knockouts or proper ventilation, thereby causing a condition that caused the fire at issue; the existence of this alternative theory proves that Inzunza cannot demonstrate that there are no triable issues of fact such that the motion should be granted as a matter of law. In fact, multiple triable issues of material fact exist and it must be submitted to a jury. In sum, based upon the admissible evidence and additional disputed facts presented by all those who opposed the motion, Inzunza’s motion should be denied in all respects.