Golden v. Mickel

Filed 10/17/06 Golden v. Mickel CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Megan Golden (Golden) is a minor plaintiff, appearing through her grandmother and guardian ad litem, Lisa Golden. Golden seeks damages for the wrongful death of her father, decedent Jeffrey Golden, and, as his successor in interest, damages on the decedent’s behalf. (See Code Civ. Proc., §§ 377.30, 377.60, subd. (a).)^[1] She appeals a summary judgment entered pursuant to section 437c in favor of defendants Steve Ellis and Ellis Ranch (collectively Ellis). As discussed below, we affirm the summary judgment because the evidence did not establish Ellis’ liability.

Background

Golden alleges that, in August 2002, the decedent rode a motorcycle along a dirt road located within a private vineyard owned by Todd and Tammy Mickel (the Mickels). He was killed when he struck an “unmarked cable gate“ that was “strung across“ the road. In an amended complaint filed in October 2004, she names the Mickels and Ellis as defendants. It alleges that Ellis “sold, installed, built and or maintained as a contractor” the “dangerous unmarked cable gate.” In setting out a cause of action for negligence, the amended complaint alleges essentially that the defendants had a duty to place materials on the cable gate designed to provide adequate warning, to persons such as decedent, of the presence of a cable blocking the roadway. It alleges that their breach of this duty caused the decedent’s injury and death.

Ellis, after answering the complaint, served and filed a motion for summary judgment in April 2005. The trial court entered an order granting this motion on September 14, 2005. A judgment in favor of Ellis followed, and notice of its entry was filed on October 12, 2005. On October 26, 2005, Golden filed a motion to set aside the judgment and grant a new trial as to Ellis. That motion was denied by operation of law and this appeal followed. (See §§ 660, 904.1, subd. (a)(1); Cal. Rules of Court, rule 3(a)(2).)

Discussion

We review the grant of summary judgment de novo, considering all of the evidence the parties offered in connection with the motion--except that which the trial court properly excluded--and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) A defendant moving for summary judgment bears the initial burden of showing that one or more elements of a cause of action cannot be established, or that there is a complete defense to the cause of action. Once this burden is met, the burden shifts to the plaintiff to show that there is a triable issue of material fact as to the cause of action, supported by reference to specific facts and not mere allegations of the pleadings. (§ 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The burden of a defendant moving for summary judgment is more properly one of persuasion than proof; he or she must persuade the court there is no material fact for a reasonable trier of fact to find, rather than proving any such fact. (Aguilar, supra, at p. 850, fn. 11.) We view the evidence, however, in the light most favorable to the plaintiff opposing the motion. (Aguilar, supra, at p. 843.)

With regard to Golden’s cause of action for negligence, Ellis sought to show that he merely furnished some of the materials for construction of the cable gate and acted with due care in doing so. He argued, in effect, that Golden could not establish that he owed the decedent a duty of care that required him to place warning materials on the cable gate. In support of his motion, Ellis submitted portions of his deposition taken in March 2005. In his deposition he testified that the Mickels hired him, at an hourly rate paid monthly, to clear their property of brush and trees and prepare its ground for planting vines. He worked on this project for about three months in 2001. He stated that, at some point, Todd Mickel told him he wanted to “put a gate up” to deter access to his property, and asked Ellis for suggestions as to the “cheapest method.” Ellis suggested that a cable gate would be the “least expensive,” as compared to a chain gate or an aluminum gate. He advised Mickel that such a gate had to be “well-defined,” or marked so as to be visible.

Ellis testified that, at this point, Mickel asked him to get the supplies for a cable gate. Mickel also showed Ellis the spot on his road where he wanted the gate built--a spot set back some distance from the public highway so as not to block access to a PG & E utility maintenance road. Ellis then purchased a cable, clamps or “U-bolts” for use in attaching the cable to the gate posts, and concrete mix for use in securing the gate posts. He also provided two sections of gas-well casings--which he already had on hand as “scrap”--for use as the gate posts. Ellis delivered these materials, leaving them at the “proposed gate site.” His “next involvement” with the gate was to contact the “labor contractor’s foreman.” He testified that the labor contractor was providing laborers for physical work such as installing a fence around the vineyard, removing rocks and stumps, and installing irrigation lines. Ellis informed the contractor’s foreman of the location where the gate was to be built, and “that was as much as [he] did.” Ellis himself did not construct the cable gate.

Ellis further testified that he had not supplied any warning materials for the cable gate for the same reason he had not provided a lock for the gate. He “figured whoever[ was] going to put the lock up [would] finalize the gate and . . . put the well-defined items on it . . . .”

Golden argues it was error to grant Ellis’ motion because her opposing evidence raised a triable issue as to whether Ellis did, in fact, construct the gate, and consequently owed a duty of care requiring him to install adequate warning materials. She cites to testimony from a deposition taken in May 2004 of David Tuttle, a neighbor of the Mickels. Specifically, when questioned whether anyone told him about the construction of the cable gate “while it was going on,” Tuttle said Ellis “might have commented about it.” (Italics added.) Tuttle elaborated that Ellis “might have said that he was going to put some cement around the posts or . . . something [o]r he’s putting it in or something of that nature. But I don’t know if he had somebody else do it or what.” Golden also cites to certain exhibits. One is an invoice indicating that Ellis purchased a cable and clamps on July 2, 2001. Others are Ellis’ handwritten records itemizing tasks performed for the Mickels for a period of several months during 2001. These indicate that, for three days after July 2, 2001, Ellis listed the use of a “933” for four and one-half hours, six hours, and nine and one-half hours, respectively, and wrote “fence” next to each of these three entries. Because Ellis stated in his deposition that he did not “bring in fencing materials” other than the materials he provided for the cable gate, Golden reasons that these notations regarding a “fence”--which Ellis made immediately after he purchased materials for the cable gate--can only refer to time that Ellis spent constructing the cable gate.

Tuttle’s cited testimony is, at best, speculative. Elsewhere in his deposition he stated he did not see who constructed the cable gate. He also said that “it could have been [Mickel] or [Ellis]. They could have worked together, but I don’t know exactly . . . .” (Italics added.) The entries including the word “fence” describe the use of a “933” for a total of some 20 hours. Elsewhere Ellis’ records show that “933” is a shorthand reference to a particular model of heavy equipment, a “933 loader.” In our view, the use of a tractor-loader for 20 hours does not reasonably correspond to the construction of a cable gate, simply because such use is further described by the word “fence.”

To avoid summary judgment, a plaintiff opposing the motion must present admissible evidence, not merely claims or theories. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.) Opposing evidence will be deemed insufficient when it is essentially conclusionary, argumentative, or based on conjecture or speculation. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.) Even viewing the foregoing evidence in the light most favorable to Golden, we conclude it is not sufficient to raise a triable issue of material fact as to whether Ellis constructed the cable gate.

Golden’s remaining contention is that it was error to grant the motion because she raised a triable issue that Ellis owed a duty to place warning materials on the cable gate because he “took control over the materials for the gate.” In arguing this point she relies on the Supreme Court’s decision in Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720 (Dow).

In Dow, the Supreme Court affirmed an award in favor of plaintiffs for the wrongful death of relatives killed by carbon monoxide emanating from their home’s gas heaters. The defendant was the general contractor who built the home, and the gas heaters had been purchased and installed by a subcontractor. (Dow, supra, 49 Cal.2d at pp. 721-722.) Thus, the primary question before the court was the liability of a general contractor for injury resulting from a dangerous condition caused by the negligence of a subcontractor. (Id. at p. 725.) The court concluded the general contractor was liable in this situation, because he supervised and had “full control” over the entire construction project. As such he was “primarily responsible” for the building. Because his duties included supervision of the subcontractor’s work, he was correspondingly liable for the subcontractor’s negligence. (Id. at pp. 725, 727.) In reaching this conclusion, the court noted there was a “close analogy” between a general building contractor and a “supplier of chattels.” A supplier of chattels is liable for goods provided, even if the supplier has another supply such goods, because the supplier, in taking the contract, “vouche[s] for the chattels as his own.” The court reasoned that a general building contactor was in the same position, because he “supplie[d] all of the materials used as well as the labor either by fabricating it himself, buying it from another or having an independent subcontractor do the same thing.” In effect, the contractor was bound to provide the owner with a “properly completed building.” (Id. at p. 726.)

The decision in Dow is factually distinguishable. Golden cites no evidence raising a triable issue as to whether Ellis acted as a general contractor, in the sense that he exercised “full control” over the construction of the cable gate pursuant to a contract. There is no indication he was bound to provide the Mickels with a “properly completed” gate. Golden’s argument--that Ellis is liable as a supplier--rests on the dictum in Dow in which the court likened a general contractor’s liability to that of a supplier of chattels. While it may be said that Ellis “vouche[d]” for those materials that he delivered, there is no claim that the materials were defective, nor does it follow that, by supplying such materials, Ellis thereafter had a duty to supervise their assembly and insure the addition of other materials designed to provide a warning.

Disposition

The summary judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Margulies, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

^[1] Further statutory references are to the Code of Civil Procedure.