Arena Group 2000 v. Sign Ad

Filed 4/18/07 Arena Group 2000 v. Sign Ad CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order and judgment of the Superior Court of San Diego County, William C. Pate, Judge. Affirmed.

In February 2003, a 25-year-old, 2,000 pound marquee sign located at a shopping center owned by Arena Group 2000, L.P., the City of San Diego and Elizabeth Nolan dba U.R.C. Management (collectively, Arena), fell and injured the plaintiffs, who were walking beneath it. The plaintiffs filed personal injury actions against Arena Group and others and Arena in turn cross-complained against various persons for indemnity, contending that their acts or omissions contributed to the accident; Sign Ad Corporation (Sign Ad) was one of those cross-defendants.

Arena appeals an order granting Sign Ad's motion for summary judgment and the judgment thereon, contending that the superior court erred in concluding that Sign Ad did not owe it a duty of care because its evidence was sufficient to permit an inference that Sign Ad disturbed the sign's braking system during its inspection of the sign in 1996. We disagree that Arena's evidence permitted such an inference and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following factual recitation is taken from the evidence submitted by the parties in connection with Sign Ad's motion for summary judgment. Because the parties submitted no evidence as to the details of the underlying accident, which are not critical for the purposes of this appeal, we do not set forth those matters herein.

In 1996, the marquee sign outside of the Mann Theater at the shopping center became inoperable, so that the marquee portion, which was supposed to be movable, would no longer move up and down on its two support poles. Mann Theater received two bids, one from Sign and Lighting Services and one from Sign Ad, for repair work that would make the sign operable again, but did not hire either bidder to do the proposed work.

In late 1998 or early 1999, a Plexiglas strip fell off of the sign. Although Mann Theater was scheduled to close its business at that location in the near future, it had an inspector look at the sign and give it a bid for removing loose pieces and light bulbs. In 1999, shortly after the theater closed, Mann Theater had the loose materials removed and informed Arena that the sign needed attention. In 2002, another Arena tenant, SOMA, obtained a bid from Manta Designs in Signs for work on the sign. In February 2003, the sign fell as a result of oxidation of the sign's drive chain and mechanical failure, injuring the plaintiffs.

After being sued by the plaintiffs in these consolidated cases, Arena filed a cross-complaint against Sign Ad and others. Six months before trial, Sign Ad moved for summary judgment or summary adjudication of the cross-claims against it, arguing that because it had no ownership interest in the premises or the sign and did not do any work on the sign, it had no liability to any party asserting claims against it, including Arena.

Arena opposed the motion, presenting expert declarations that (1) the sign's braking system, which was designed to keep the sign from falling to the ground, failed because at some point after the sign was installed in 1978, the tension on the brake spring was loosened by someone and (2) one of the expert's "understanding," based on a review of the documents and depositions in the case, was that Sign Ad was the last professional sign company hired to inspect the sign. Arena argued that, as a licensed electrical sign contractor, Sign Ad had a duty to use a competent and knowledgeable technician to inspect signs in preparing work estimates and to provide complete information in its proposals regarding the repairs that were necessary to make the signs it inspects safe and that it failed to comply with these obligations.

The court granted Sign Ad's motion for summary judgment. It concluded that Arena's evidence was not sufficient to establish any duty by Sign Ad because there was no evidence that Sign Ad loosened the brake or that the brake was out of adjustment in 1996 when Sign Ad inspected the sign and provided a bid. The court also found that, absent any contract with Mann Theater to inspect, maintain or repair the sign, there was no basis for a duty on Sign Ad's part. The court entered judgment in Sign Ad's favor and Arena appeals.

DISCUSSION

1. Standard of Review

Summary judgment is properly granted only if "all the papers submitted show that there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc.,  437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) On appeal after the trial court grants a motion for summary judgment, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Where there are appellate challenges to the court's rulings on the admissibility of evidence submitted in connection with the motion, we review those rulings for an abuse of discretion. (Jackson v. County of Los Angeles (1997) 60 Cal. App.4th 171, 192, fn. 15.)

2. The Propriety of the Court's Evidentiary Rulings

In ruling on the motion, the court sustained Sign Ad's objections to the declarations submitted by Arena on the grounds that whether Sign Ad verified that its inspectors were licensed, insured and otherwise qualified to identify potential hazards was irrelevant in light of the uncontroverted evidence that Sign Ad never worked on the sign and did not contract with Mann Theater to perform a safety inspection of the sign. Arena does not contend that the court abused its discretion in sustaining the objections, but argues that it is "not clear" the court sustained Sign Ad's objection to its expert's opinion that the braking system was out of adjustment because someone had loosened the pressure on the brake spring. Although we do not find the court's evidentiary rulings to be as ambiguous as Arena suggests, we need not reach that issue because, for the reasons stated below, the expert opinion is in any event insufficient to create a triable issue of fact as to whether Sign Ad had a duty of care here.

3. The Propriety of the Court's Grant of Summary Judgment

"[E]ach person has a duty to use ordinary care and is liable for injuries caused by his [or her] failure to exercise reasonable care in the circumstances. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472; Civ. Code,  1714.) Whether a particular person has a legal duty of care may depend on whether he or she is alleged to have committed misfeasance (by creating a risk of harm to the plaintiff) or nonfeasance (by failing to aid the plaintiff to avoid a risk of harm created by someone else). (See Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one's own conduct, while liability for nonfeasance arises only where the person has a special relationship with the plaintiff, based on which the law imposes a duty to act. (Ibid.)

Here, Arena implicitly concedes that, in accordance with Seo and the authorities cited therein, Sign Ad would not be liable for nonfeasance (failing to act), but contends that its evidence is sufficient to create a triable issue of fact as to whether Sign Ad committed misfeasance that created the risk the sign would fall. In support of this argument, Arena relies on its expert declaration that "at some point after the sign installation, the brake was loosened by someone so that the pressure on the spring was not adjusted properly." (Although Arena also refers to the evidence of its expert's "understanding" that Sign Ad was the last company to inspect the sign, there is no question that the superior court sustained Sign Ad's objection to that evidence based on lack of foundation. Since Arena does not challenge that ruling on appeal, that evidence is not properly before us. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334.))

To survive a motion for summary judgment, the motion's opponent must present substantial evidence, not mere speculation or conjecture. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) "An issue of fact can only be created by a conflict of evidence. It is not created by 'speculation, conjecture, imagination or guess work' . . . [nor is it] raised by 'cryptic, broadly phrased, and conclusory assertions' . . . or mere possibilities . . . ." (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197, citations omitted; LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

The evidence presented by Arena merely establishes that the braking system on one of the sign poles was out of adjustment (and thus presumably failed to stop the sign from falling) because, at some point after the sign was installed 25 years earlier, "someone" had loosened the brake. There is no evidence, however, that Sign Ad committed this act and Arena's evidence, standing alone, does not permit an inference that Sign Ad did so. The superior court correctly granted summary judgment in Sign Ad's favor.

DISPOSITION

The order and judgment is affirmed. Sign Ad is entitled to recover its costs on appeal.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.