Anthony Fuller v. Casey J. Crawford, Trustee of the Casey J. Trust; Challenge Asphalt Inc (Doe 1); Michael Dewayne Copus (Doe 2)

Case Number

22CV05156

Case Type

Hearing Date / Time

Wed, 02/26/2025 - 10:00

Nature of Proceedings

1) Defendant Michael D. Copus’ Motion for Summary Judgment on Plaintiff’s complaint; and, 2) Defendant and Cross-Defendant Challenge Asphalt, Inc.’s Motion for Summary Judgment on Plaintiff’s Complaint and Casey J. Crawford’s Cross-Complaint

Tentative Ruling

For Plaintiff Anthony Fuller: Patricia A. Boyes and Elizabeth J. Boyes.

For Defendant and Cross-Complainant Casey J. Crawford, Trustee of the Casey J. Crawford Trust: Brian S. Dewey.

For Defendant Michael D. Copus and Defendant/Cross-Defendant Challenge Asphalt, Inc.: Daniel P. Schrader.

For Defendant Rob Jones Asphalt (Doe 3) [just added 2/19/25]: No Appearance.

                       

RULING

For the reasons set forth herein:

1. Defendant Michael D. Copus’ motion for summary judgment on plaintiff’s complaint is granted.

2. Defendant Challenge Asphalt, Inc.’s motion for summary judgment on plaintiff’s complaint is granted.

3. Cross-Defendant Challenge Asphalt, Inc.’s motion for summary judgment on Casey J. Crawford’s cross-complaint is granted.

Background

This action commenced on December 30, 2022, by the filing of the complaint by plaintiff Anthony Fuller against defendant Casey J. Crawford, Trustee of the Casey J. Crawford Trust. The sole cause of action is premises liability.

The complaint alleges that on January 29, 2023, (Note: This is an obvious typographical error as the complaint was filed prior to that date. The documents subsequently filed show that the correct year is “2021”), Fuller was walking on Crawford’s driveway that had a “slippery foreign transitory substance on the ground” that caused Fuller to fall and injure himself. (Compl., ¶ L-1.)

On May 22, 2023, Crawford filed a cross-complaint against Roes 1 to 50, for apportionment of fault, indemnification, and declaratory relief. On July 11, 2024, Challenge Asphalt, Inc. (“Challenge”) was substituted in as Roe 1.

On May 20, 2024, Fuller substituted Challenge in as Doe 1, and Michael Dewayne Copus as Doe 2. Recently, on February 20, 2025, Fuller substituted Rob Jones Asphalt in as Doe 3.

Copus moves for summary judgment on Fuller’s complaint. The Copus motion for summary judgment is opposed by Fuller.

Challenge moves for summary judgment as to both Fuller’s complaint and Crawford’s cross-complaint. The Challenge motion is opposed by Fuller and by Crawford.

Analysis

                                          Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if plaintiff is unable to do so, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial 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 v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists 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 v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.)

                 Separate Statement of Undisputed Material Facts

In support of the motions, Copus and Challenge have each filed their separate statements of undisputed material facts (“UMFs”), as have Fuller and Crawford in opposition. Fuller filed separate statements in opposition to both motions (“PSS”) and Crawford filed a separate statement in opposition to the Challenge motion (“CSS”).

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

                                     Copus’ Motion for Summary Judgment

Because Fuller relies solely on the allegations of his complaint in some of his denials, it is worth noting that: “The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); italics added.)

The following facts are either undisputed or not reasonably disputed:

This is a premises liability action arising out of Fuller slipping and falling on wet asphalt. (Although Fuller disputes this, it is not reasonably disputed. Fuller is correct that the complaint references a “slippery foreign transitory substance” on the ground but, at deposition, Fuller specifically testified that it was rain and that there was no other “transitory substance” on the ground.) (PSS, UMF 1.)

The fall took place on January 29, 2021, at 2100 Red Rose Way, Santa Barbara. (PSS, UMF 2.) Fuller alleges that the subject location was owned, operated, managed, and maintained by Challenge and Copus. (PSS, UMF 3.)

“Plaintiff contends that Defendants Challenge and Copus failed to exercise reasonable care and failed to maintain the premises in a reasonable safe condition by allowing an unsafe and dangerous slip hazard on the driveway that included a foreign transitory substance, which was rain/water according to Plaintiff at his deposition which caused Plaintiff to slip and fall.” (Not reasonably disputed due to Fuller’s deposition testimony, and no admissible evidence to the contrary.) (PSS, UMF 4.)

Fuller also alleges that Challenge and Copus were “the agents or employes of other named defendants and acted within the scope of that agency or employment,” and that they “negligently owned, maintained, managed or operated the [subject location].” (PSS, UMF 5.)

Crawford “was the owner, managed, controlled the Subject Location where [Fuller] allegedly fell, and admitted that she was responsible for repairs and management of the Subject Location.” (PSS, UMF 6.)

Crawford cross-complained against Challenge, but not Copus. (PSS, UMF 7.)

“Defendant Challenge and Defendant Copus were not the owner, lessee, lessor, occupier or controller of the Subject Location where Plaintiff allegedly fell at any time, including the date of the subject incident for this case.” (Not reasonably disputed as Copus provides evidence in support of the UMF, but Fuller provides no evidence that the UMF is false.) (PSS, UMF 8.)

In discovery, Fuller admitted, in response to requests for admission, that Challenge and Copus were not the owners or possessors of the subject location at the time of the fall and that they were not in control of the location at the time of the fall. (PSS, UMF 9.)

Crawford is the owner of the location and admits that neither Challenge or Copus were owners or possessors of the location at the time of the fall and that Challenge and Copus were not in control of the location at the time of the incident. (PSS, UMF 10.)

“Defendant Challenge and Defendant Copus also were not responsible for directing maintenance or repair procedures of the Subject Location where Plaintiff allegedly slipped and fell, and did not have any authority to do so.” (PSS, UMF 11.)

Neither Challenge nor Copus signed any contracts with the owner of the location obligating them to perform maintenance procedures and repairs of the ground at the location of the alleged slip and fall, on or before the date of the fall. (PSS, UMF 12.)

Challenge performed work at the location in approximately May 2018, for which the exact scope of the project was reflected in a May 22, 2018, invoice. (PSS, UMF 14.) The work did not involve any re-pavement or elevation change at the location, and it only took approximately one day. (PSS, UMF 15.) Kurt Copus of Challenge was responsible for overseeing the project. (Ibid.)

The work was completed and accepted by the owner of the location and Challenge was paid for the job on May 25, 2018. (PSS, UMF 16.) Following the completion of the work, and payment, Challenge did not receive any subsequent requests for repairs, or complaints about the work from the owner of the location. (PSS, UMF 17.)

“Plaintiff admitted at his deposition that he was aware that it had been raining before and during the time when he got to the Subject Location on January 29, 2021 for process serving, was at the Subject Location for some time before he fell, and was aware that the asphalt ground at the Subject Location after raining can be slippery.” (PSS, UMF 18.)

By way of Copus’ motion, he argues that he cannot be held liable for premises liability because he was not the owner, lessor, Lessee, occupier, or controller of the subject location. These arguments are all supported by way of the UMFs.

“We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)

“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)

As noted above, the sole cause of action contained in the complaint is premises liability. As such, Copus is only requited to negate that theory of liability in order to prevail on summary judgment.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

“ ‘[A] defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control.’ ” [Citations.]” (Moses v. Roger-McKeever (2023) 91 Cal.App.5th 172, 179.)

Here, Fuller has admitted (as established by the UMFs) that Copus did not own, possess, or control the property where Fuller alleges he fell. In fact, in the opposition, Fuller admits: “The subject property is owned, operated, managed and maintained by Defendant CASEY J. CRAWFORD, TRUSTEE OF THE CASEY J. CRAWFORD TRUST.” (Opp. p. 2, ll. 22-27.) As such, Copus has completely negated Fuller’s theory of liability as contained in the complaint.

In his opposition, Fuller does not address any of the substantive arguments made by Copus. Rather, he states that he will seek leave to file a first amended complaint to add a general negligence cause of action. However, he has not done so, and that issue is not before the court. Fuller would be required to file a noticed motion and comply with all the other requirements, including those set forth in California Rules of Court, rule 3.1324. Additionally, Copus and Challenge were both brought into this case by the filing of the “Doe Amendment” on May 20, 2024. Included in their answer, filed on June 25, 2024, is the affirmative defense that they are not “the owner, operator, lessor, or occupier of the subject property where Plaintiff sustained his alleged injuries.” Fuller offers no explanation why he did not seek leave to amend his complaint with any other causes of action.

Copus’ motion for summary judgment as to the complaint of Fuller will be granted.

                               Challenge’s Motion for Summary Judgment

The UMFs in support of Challenge’s motion are, with respect to Fuller, the same as those that were filed in support of Copus’ motion.

For the same reasons that the motion will be granted in favor of Copus, the motion will be granted in favor of Challenge as to Fuller’s complaint.

As noted above, Challenge’s motion is also opposed by Crawford.

Crawford does not dispute any of Challenge’s UMFs, nor does she set forth any of her own facts which she claims are material to the disposition of the motion.

Of note is that Crawford’s claims against Challenge are not limited to issues of premises liability. The claims are for indemnification, apportionment of fault, and declaratory relief. The declaratory relief sought is: “That [Challenge] . . . negligently caused or contributed to the accident and injuries alleged by [Fuller] . . ..” In essence, the cross-complaint is based on a claim of general negligence. Therefore, with respect to Challenge’s arguments regarding lack of ownership, possession, or control, that is, for purposes of the motion, irrelevant as to Crawford’s claims against Challenge.

Challenge’s next argument, with respect to the cross-complaint, is based on the “accepted work doctrine.” The accepted work doctrine stands for the proposition that: “Generally, a contractor is not liable for injuries that occur after performance of a contract and the acceptance of the work by the employer.” (Shurpin v. Elmhirst (1983) 148 Cal.App.3d 94, 101.)

This argument relies on the UMFs that establish Challenge completed work on the project in May 2018, Crawford paid Challenge for the work on May 25, 2018, and there were no complaints or requests for repairs on the work.

 In support of the accepted work doctrine argument, Challenge relies on Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461 (Sanchez). Sanchez sets forth the history of the doctrine as it applies to the issue of duty, and ultimately upholds the trial court granting of summary judgment in favor of a general contractor and a concrete subcontractor, in a case where the plaintiff had slipped and fell. In that case, a concrete landing sloped toward the building entrance, and, during rainy periods, water collected on the landing and tended to migrate into the building. Plaintiff walked across the landing, into the building, and slipped. The court held that a contractor who constructs a defective facility, causing injury to a third-party, is not liable to the third-party if the defect was patent after the building was completed and accepted by the owner.

Challenge has presented evidence, by way of Fuller’s deposition testimony, that to the extent there was any defect, it was not latent or concealed. Fuller saw the water and was aware that it could be slippery. Challenge has additionally presented evidence that the work was completed, accepted, and paid for nearly three years prior to plaintiff’s slip and fall.

Challenge has met its burden of establishing a complete defense to the cross-complaint.

In Crawford’s brief opposition, Crawford fails to address the accepted work doctrine, entirely.

Challenge’s motion for summary judgment on Crawford’s cross-complaint will be granted.