Dylan Ridgel v. United States of America et al, No. 8:2012cv00071 - Document 37 (C.D. Cal. 2013)
Court Description: ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOC. NO. 27) by Judge Jesus G. Bernal: For the foregoing reasons, the Court DENIES the United States of America's Motion for Summary Judgment. 27 (am)
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Dylan Ridgel v. United States of America et al Doc. 37 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 DYLAN RIDGEL, 15 16 17 18 19 ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF ) AMERICA, ) ) Defendant. ) ________________________ Case No. SACV 12-0071 JGB (MLGx) ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 27) 20 21 22 23 Before the Court is a Motion for Summary Judgment 24 filed by Defendant United States of America. After 25 considering the papers filed in support of and in 26 opposition to the Motion, and the arguments advanced by 27 counsel at the May 20, 2013 hearing, the Court DENIES 28 Defendant's Motion for Summary Judgment. Dockets.Justia.com I. 1 BACKGROUND 2 3 A. Procedural Background 4 5 On January 17, 2012, Plaintiff Dylan Ridgel 6 ("Ridgel") filed his Complaint against the United States 7 of America ("the Government") alleging negligence under a 8 premises liability theory pursuant to the Federal Tort 9 Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. (Compl. at 1 10 (Doc. No. 1).) 11 12 On April 22, 2013, the Government filed this Motion 13 for Summary Judgment ("MSJ") along with: 14 1. Statement of Undisputed Facts ("SUF"); 15 2. Declaration of W. Thomas Hendon, attaching four 16 exhibits; 17 3. Declaration of Alberto Salazar; 18 4. Declaration of Archie Sanchez, attaching one 19 exhibit; and 20 5. Expert report prepared by Charles Miller of 21 construction consultants Bert L. Howe & 22 Associates. 23 (Doc. Nos. 27 through Doc. No. 27-10.) 24 25 26 27 28 2 1 On April 29, 2013, Ridgel filed his Opposition, along 2 with: 3 1. 4 5 ("SGI") (Doc. No. 28-1 at 1-29); 2. 6 7 3. 4. 5. 16 Declaration of Dylan Ridgel, attaching three exhibits; 6. 14 15 Declaration of Kenneth G. Ruttenberg, attaching nine exhibits; 12 13 Objections to the Government's Evidence ("Objections"); 10 11 Statement of Additional Undisputed Facts ("SAUF") (id. at 30-39); 8 9 Statement of Genuine Issues of Material Fact Declaration of Daniel S. Daderian, attaching two exhibits; and 7. Declaration of David E. Kalb, attaching three exhibits. 17 (Doc. Nos. 28 through 28-23.) 18 19 Finally, the Government filed its Reply on May 10, 20 2013, along with two exhibits consisting of deposition 21 excerpts. (Doc. Nos. 33 through 33-2.) 22 23 II. LEGAL STANDARD 24 25 A court shall grant a motion for summary judgment 26 when there is no genuine issue as to any material fact 27 and the moving party is entitled to judgment as a matter 28 3 1 of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty 2 Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving 3 party must show that "under the governing law, there can 4 be but one reasonable conclusion as to the verdict." 5 Anderson, 477 U.S. at 250. 6 7 Generally, the burden is on the moving party to 8 demonstrate that it is entitled to summary judgment. See 9 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) 10 (citing Anderson, 477 U.S. at 256-57); Retail Clerks 11 Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 12 1033 (9th Cir. 1983). The moving party bears the initial 13 burden of identifying the elements of the claim or 14 defense and evidence that it believes demonstrates the 15 absence of an issue of material fact. 16 Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. v. Because summary 17 judgment is a “drastic device” that cuts off a party's 18 right to present its case to a jury, the moving party 19 bears a “heavy burden” of demonstrating the absence of 20 any genuine issue of material fact. See Avalos v. Baca, 21 No. 05-CV-07602-DDP, 2006 WL 2294878 (C.D. Cal. Aug. 7, 22 2006) (quoting Nationwide Life Ins. Co. v. Bankers 23 Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999)). 24 25 Where the non-moving party has the burden at trial, 26 however, the moving party need not produce evidence 27 negating or disproving every essential element of the 28 4 1 non-moving party's case. Celotex, 477 U.S. at 325. 2 Instead, the moving party's burden is met by pointing out 3 that there is an absence of evidence supporting the non4 moving party's case. Id.; Horphag Research Ltd. v. 5 Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). “[A] 6 summary judgment motion may properly be made in reliance 7 solely on the ‘pleadings, depositions, answers to 8 interrogatories, and admissions on file.’” Celotex, 477 9 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)). 10 11 The burden then shifts to the non-moving party to 12 show that there is a genuine issue of material fact that 13 must be resolved at trial. Fed. R. Civ. P. 56(c); 14 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The 15 non-moving party must make an affirmative showing on all 16 matters placed in issue by the motion as to which it has 17 the burden of proof at trial. 18 Anderson, 477 U.S. at 252. Celotex, 477 U.S. at 322; See also William W. 19 Schwarzer, A. Wallace Tashima & James M. Wagstaffe, 20 Federal Civil Procedure Before Trial § 14:144. A genuine 21 issue of material fact will exist "if the evidence is 22 such that a reasonable jury could return a verdict for 23 the non-moving party." Anderson, 477 U.S. at 248. 24 25 In ruling on a motion for summary judgment, a court 26 construes the evidence in the light most favorable to the 27 non-moving party. Scott v. Harris, 550 U.S. 372, 378, 28 5 1 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th 2 Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. 3 Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). 4 III. FACTS 5 6 7 A. Evidentiary Issues 8 9 Ridgel objects to (1) the Expert Report of Charles 10 Miller ("Miller Report") as inadmissible evidence 11 (Objections ¶¶ 4, 5); (2) several declaration statements 12 as improper opinion under Federal Rule of Evidence ("FRE) 13 701 (id. ¶¶ 16, 18, 34, 36, 37); and (3) various other 14 factual contentions and declaration statements as legal 15 conclusions, irrelevant, lacking foundation, or 16 speculative (see generally Objections). 17 18 1. Miller Report 19 20 The Court sustains Ridgel's objection to the Miller 21 Report and thus strikes it as inadmissible evidence. 22 First, the Report is not attached to any declaration and 23 is unauthenticated and unsworn. See Orr v. Bank of Am., 24 NT & SA, 285 F.3d 764, 773-75 (9th Cir. 2002) (finding 25 exhibits improperly authenticated and thus inadmissible 26 and stating that "[a] trial court can only consider 27 admissible evidence in ruling on a motion for summary 28 6 1 judgment"). Courts in the Ninth Circuit "have routinely 2 held that unsworn expert reports are inadmissible." 3 Harris v. Extendicare Homes, Inc., 829 F. Supp. 2d 1023, 4 1027 (W.D. Wash. 2011); see also Shuffle Master, Inc. v. 5 MP Games LLC, 553 F. Supp. 2d 1202, 1210-11 (D. Nev. 6 2008); King Tuna, Inc. v. Anova Food, Inc., No. 07-74517 ODW, 2009 WL 650732, at *1 (C.D. Cal. Mar. 10, 2009) 8 (stating that "[i]t is well-settled that under 9 Fed.R.Civ.P. 56(e), unsworn expert reports are not 10 admissible to support or oppose summary judgment" and 11 that "to be competent summary judgment evidence, an 12 expert report must be sworn to or otherwise verified, 13 usually by a deposition or affidavit"). 14 15 Second, the Government failed to attach or otherwise 16 provide the documents on which Miller relied in drafting 17 his report. See FRCP 56(c); Harris, 829 F. Supp. 2d at 18 1027 ("The [expert] reports are also inadmissible because 19 they fail to attach copies of the documents to which they 20 refer. . . . The Court will not simply assume that the 21 experts have accurately quoted or characterized those 22 documents.") Even if the Court overlooks that images of 23 multiple documents referenced are embedded in the Report, 24 rather than being attached and authenticated as exhibits, 25 the Government still fails to attach the four depositions 26 and the response to interrogatories that Miller must have 27 relied on to write his factual statement and from which 28 7 1 he drew his conclusions.1 (See Miller Rep. at 32 2 (Documents Reviewed Nos. 8-12), 43-45.) 3 4 The Court therefore finds the Miller Report 5 inadmissible and does not consider it here. 6 7 2. Improper Opinion 8 9 The Court overrules Ridgel's objections based on FRE 10 701, which states that non-expert witnesses are limited 11 to offering opinions that are (1) "rationally based on 12 the witness's perception"; (2) "helpful . . . to 13 determining a fact in issue; and (3) "not based on . . . 14 specialized knowledge" that is within the scope of expert 15 witness testimony. (Objections ¶¶ 16, 18, 34, 36, 37.) 16 The underlying evidence in the objected-to portions of 17 the SUF consists of sworn statements from Alberto Salazar 18 (Pipe Shop Supervisor), W. Thomas Hendon (Maintenance 19 Team Supervisor), and Archie Sanchez (Occupational Health 20 and Safety Specialist). All three were employed in these 21 capacities by the Department of Veteran Affairs in Long 22 Beach, California, the site of Ridgel's injury, and their 23 24 25 26 27 28 1 The only citation Miller provides for his recitation of the facts regarding Ridgel's injury is the single-paragraph, undated "Report of Contact Regarding Dylan Ridgel's Injury on 3/23/11," which is signed by Alberto Salazar. (See Miller Rep. at 44, 45.) Miller primarily states facts that are not listed in this Report of Contact, and no other items listed in the Report's "Documents Reviewed" section could provide facts as to Ridgel's injury and the events preceding it. (See id. at 32, 43-45.) 8 1 testimony is properly based on personal knowledge and the 2 conclusions they drew as part of their job 3 responsibilities. (See Salazar Decl. ¶ 1; Hendon Decl. ¶ 4 1; Sanchez Decl. ¶ 1.) Statements such as Salazar's 5 regarding the purpose and functioning of pipe at issue 6 (Objections ¶¶ 16, 18) are properly interpreted as 7 statements of his knowledge and belief developed in the 8 course of his daily duties, which is material to Ridgel's 9 negligence claim, rather than as expert testimony that 10 goes primarily to the truth of the statement. Thus, the 11 nature of Ridgel's objection is more appropriately 12 considered in the determination of whether the Government 13 has established the facts submitted in its SUF, not as a 14 question of admissibility of the evidence. 15 16 3. Remaining Objections 17 18 The majority of Ridgel's remaining objections are 19 either not properly grounded in evidentiary rules or are 20 duplicative of the summary judgment standard, requiring 21 consideration of material facts only, and thus 22 unnecessary to resolve here. Regarding Ridgel's many 23 objections under FRE 602, which requires that witnesses 24 have personal knowledge of the matter about which they 25 are testifying, the Court finds that there is clearly 26 sufficient foundation for all except two of the of the 27 28 9 1 objected-to declaration statements, which are considered 2 below. 3 4 First, Ridgel objects to the following sentence from 5 Paragraph 7 of the Salazar Declaration (Objection ¶ 22): 6 "After Mr. Ridgel and I walked through the door leading 7 to the third floor roof, I took Mr. Ridgel far enough 8 away from the door so he and I could see the top of the 9 hot steam vent pipe that was still regularly emitting 10 scalding condensate on the fourth floor roof." The Court 11 construes this sentence as a statement that Salazar could 12 see the top of the pipe and that Salazar believed Ridgel 13 could see it too. The language "hot steam vent pipe" and 14 "regularly emitting scalding condensate" refers only to 15 Salazar's personal knowledge; the Court does not 16 interpret the language to state that Ridgel had this 17 knowledge as well. Thus construed, the Court overrules 18 Ridgel's objection. 19 20 Second, Ridgel objects to Paragraph 6 of the Sanchez 21 Declaration. (Objections ¶¶ 30-33.) Sanchez declares 22 that, "[b]ased on what I learned about the work that Mr. 23 Ridgel performed on May 23, 2011, it appears that Mr. 24 Ridgel did not take adequate basic safety precautions." 25 (Sanchez Decl. ¶ 6.) Sanchez then cites the following 26 three examples of Ridgel's unsafe actions or inactions: 27 (1) Ridgel did not use "fall protection"; (2) Ridgel 28 10 1 touched the pipe to determine its temperature; and (3) 2 Ridgel "made no effort to inform any" supervisors or 3 safety office employees before he went on to the roof 4 where he suffered his injury. (Id. ¶¶ 6(a)-(c).) 5 Court sustains Ridgel's objections. The Sanchez does not 6 claim to have personal knowledge of and offers no 7 foundation for these statements, which are the sole 8 evidentiary basis for the Government's submitted facts 9 regarding Ridgel's alleged lack of safety precautions. 10 (See SUF ¶¶ 30-33.) As such, Sanchez's statement that it 11 "appears that Mr. Ridgel did not take adequate basic 12 safety precautions" is not based on personal knowledge. 13 For such an opinion to be relevant, it would have to be 14 based on specialized knowledge and satisfy the 15 requirements for expert witnesses under FRE 702. The 16 Court therefore sustains Ridgel's objection and does not 17 consider Paragraph 6 of the Sanchez Declaration. 18 19 B. Undisputed Facts 20 21 The following material facts are supported adequately 22 by admissible evidence and are uncontroverted. They are 23 "admitted to exist without controversy" for purposes of 24 the MSJ. Local R. 56-3 (stating that facts not 25 "controverted by declaration or other written evidence" 26 are assumed to exist without controversy); Fed. R. Civ. 27 P. 56(e)(2) (stating that where a party fails to address 28 11 1 another party's assertion of fact properly, the court may 2 "consider the fact undisputed for purposes of the 3 motion"). 4 5 Dylan Ridgel, doing business as Precision Firestop 6 Contracting, was an independent contractor who had been 7 hired on multiple occasions for discrete jobs at the 8 Department of Veteran Affairs, Long Beach Medical Center 9 in Long Beach, California ("VA"), including sealing water 10 pipes and patching leaks for W. Thomas Hendon, the VA 11 Maintenance Team Supervisor. 12 Hendon Decl. ¶ 2.) (SUF ¶¶ 1, 2; SGI ¶¶ 1, 2; Ridgel also performed work at the VA 13 for a different VA contractor and, prior to that, had 14 done roof repairs at the VA with his father. 15 Decl. ¶ 2.) (Hendon Ridgel's work at the VA also included 16 installing synthetic caulking around pipes and ducts. 17 (SGI ¶ 1; Ridgel Decl. ¶ 3.) 18 19 In early March 2011, Hendon requested that Ridgel 20 perform water sealant work at several locations at the 21 VA. (SUF ¶ 9; SGI ¶ 9.) On March 4, 2011, Ridgel faxed 22 Hendon a work proposal listing the services to be 23 performed and the proposed price. 24 Ridgel Decl. ¶ 4.) (Hendon Decl., Ex. 1; After Hendon contacted Ridgel, VA 25 personnel observed a water leak in the medical center and 26 reported it to Alberto Salazar, the VA's Pipe Shop 27 Supervisor, who investigated the leak and traced it up to 28 12 1 the fourth floor roof of building 126. 2 SGI ¶¶ 10, 11.) (SUF ¶¶ 10, 11; Salazar went to the third floor roof and 3 "observed [on the fourth floor roof] a hot steam vent 4 pipe that was emitting steam and liquid" that Salazar 5 "believed to be 190 degree condensate." 6 12.) (SUF ¶ 12; SGI ¶ According to Salazar, he "observed the vent pipe 7 was having . . . almost like a volcanic effect, where 8 water was gushing out every so often . . .[,] meaning 9 like every minute or two." (SAUF ¶ 5; Ruttenberg Decl., 10 Ex. D (Deposition of Alberto Salazar ("Salazar Dep.")) at 11 35:4-7.) Salazar "believed that the scalding condensate 12 was probably eating away at the protective sealant on the 13 roof at the base of the pipe, resulting in a leak of 14 water into the walls." 15 ¶ 13.) (Salazar Decl. ¶ 2; SUF ¶ 13; SGI Salazar then traced the fourth-floor pipe to the 16 mechanical room in the basement, where he "discovered 17 that a 'liquid mover' may have been malfunctioning," 18 causing condensate water to back up and vent out of the 19 pipe. (SUF ¶ 14; SGI ¶ 14; Salazar Decl. ¶ 3.) Salazar 20 suspected the cause to be a malfunctioning liquid mover 21 or regulator based in part on his "general experience at 22 the VA[, where] [t]hat is a very common incident." 23 ¶¶ 6, 8; Salazar Dep. At 35:13-25.) (SAUF After Salazar 24 investigated the leak and observed the fourth-floor pipe 25 emitting liquid, he told Hendon that the roof leak needed 26 to be fixed and notified Jorge Guzman, the boiler plant 27 supervisor, that the liquid mover may have been 28 13 1 malfunctioning. (SUF ¶¶ 15, 19; SGI ¶¶ 15, 19.) Salazar 2 did not tell anyone that the liquid mover should be 3 repaired before the roof leak was fixed and did not tell 4 Hendon anything about the liquid mover. (SAUF ¶ 14, 15.) 5 Salazar does not believe he ever showed Hendon the water 6 emitting from the pipe and does not recall ever telling 7 Hendon about the water emitting from the pipe. (SAUF ¶¶ 8 11, 12.) 9 10 Within "a few days" of Salazar informing Hendon about 11 the leak, Ridgel came to the VA to see the site of the 12 proposed job and to have Salazar explain the work that 13 needed to be performed. (SUF ¶¶ 20, 21; SGI ¶¶ 20, 21.) 14 After meeting Ridgel in the hallway on the third floor, 15 Salazar led Ridgel through a locked doorway onto the 16 third-floor roof, from where the pipe on the fourth-floor 17 roof was visible, and pointed out the fourth-floor roof 18 as the possible source of the leak and the proposed work 19 site. (SUF ¶¶ 21, 22; SGI ¶¶ 21, 22; SAUF ¶¶ 18-20.) 20 Salazar did not tell Ridgel that he thought the liquid 21 mover was malfunctioning. (SAUF ¶ 31.) After meeting 22 with Salazar, Ridgel, per Hendon's request, revised his 23 work proposal and added the line, "Buildin[g] 126, Hot 24 vent pipe 3rd floor roof." (SAUF ¶ 38; Hendon Decl, Ex. 25 2.) 26 27 28 14 1 On March 11, 2011, the VA processed and approved a 2 Credit Card Worksheet requested by Hendon, which 3 authorized payment of $2,380 to Ridgel and required him 4 "[t]o repair rain leaks from roofs due to penetrations in 5 BLDG's 5, 126, and 1." (SAUF ¶ 44; Ruttenberg Decl., Ex. 6 A (March 11, 2011 Credit Card Worksheet).) There is no 7 other text regarding the nature or scope of the required 8 work on the Credit Card Worksheet. 9 10 On March 23, 2011, Ridgel went to the VA to perform 11 the request work. (Ridgel Decl. 19.) Ridgel, without 12 telling Hendon or Salazar, accessed the third-floor roof 13 with the help of two VA employees, including Walter 14 Schmidt, a member of the VA's engineering staff who was 15 supervised by Hendon. 16 77.) (SUF ¶ 28; SGI ¶ 28; SAUF ¶¶ 66- Neither Hendon nor Salazar had told Ridgel that he 17 was authorized to access the fourth-floor roof without 18 first telling them. (SUF ¶ 29; SGI ¶ 29.) Ridgel 19 accessed the fourth-floor roof without first telling 20 Hendon or Salazar. (SUF ¶ 33; SGI ¶ 33.) Once on the 21 fourth-floor roof, Ridgel applied synthetic caulking 22 around the vent pipe penetration. (SUF ¶ 37; SGI ¶ 37.) 23 He did not see any steam or water emitting from the pipe, 24 until, while kneeling down to spread the caulk, the vent 25 emitted scalding water, inflicting burns on Ridgel's 26 back, arms, shoulders, back of neck, right foot, ears, 27 28 15 1 forehead, lower-right side of abdomen, and buttocks. 2 (SAUF ¶¶ 80, 88.) 3 4 Within 10 days of Ridgel's injury, the site of the 5 injury was inspected separately by Olivia Parducho (the 6 VA's Safety and Occupational Health Manager and Sanchez's 7 supervisor), James M. Bachman (a Certified Safety 8 Professional), and Brian Pepi Woods (the VA's Maintenance 9 Control Manager and Hendon and Salazar's supervisor). 10 (SAUF ¶¶ 93, 95, 97; Ruttenberg Decl, Exs. G, H, E.) 11 Neither Parducho, Bachman, nor Woods saw the vent pipe 12 emit water during their inspections; Parducho saw 13 "nothing out of the ordinary" about the pipe or roof. 14 (SAUF ¶¶ 94, 96, 97.) 15 16 One month after Ridgel's injury, Guzman requested a 17 Credit Card Worksheet to authorize payment to a vendor 18 for "New Complete Pump head assembly with valves for 19 Condensate Return Pump Station in Building 126. Existing 20 Pump station is damaged and not working properly . . . . 21 Unit is causing condensate to back-up and water to shoot 22 out from the bent line on roof. 23 Issue." Making this a Safety (SAUF ¶ 98; Ruttenberg Decl., Ex. F (April 22, 24 2011 Credit Card Worksheet).) 25 26 At the time of his injury, Ridgel was a Class C-61 27 limited specialty contractor, with a D-12 subcategory 28 16 1 classification (as defined by the California Contractors 2 State License Board) of Synthetic Products Contractor; he 3 was not a C-39 roofing contractor. (SUF ¶¶ 3, 5; SGI ¶¶ 4 3, 5.) 5 6 C. Controverted Facts 7 8 The following material facts submitted by the 9 Government are sufficiently controverted by Ridgel's 10 evidence such that there exists a genuine dispute. See 11 Local R. 56-3; FRCP 56(c). 12 13 First, there are genuine disputes as to most of the 14 submitted facts regarding Ridgel's meeting and 15 conversation with Salazar. The parties dispute what 16 Salazar told Ridgel and the specificity with which 17 Salazar pointed out the "proposed work site," that is, 18 the vent pipe. (See SUF ¶ 23; SGI ¶ 23; SAUF ¶¶ 16-21.) 19 The parties dispute whether Salazar told Ridgel that the 20 pipe was a "steam pipe" and, if he did not, whether 21 Ridgel knew it was a steam pipe. 22 23; SAUF ¶ 81.) (See SUF ¶ 23; SGI ¶ Further, according to Ridgel, when he 23 met with Salazar, Salazar told him that he did not know 24 where the leak was coming from, but that it could be 25 coming from the fourth floor roof through a pipe or drain 26 or could be the result of rain water or condensation 27 build-up outside a vent pipe. 28 17 (SAUF ¶ 16; Ridgel Decl. ¶ 1 6.) While this does not directly controvert the 2 Government's assertion that Salazar told Ridgel he 3 "believed that the scalding condensate was deteriorating 4 the penetration around the hot steam vent pipe, resulting 5 in water leaks into the building" (SUF ¶ 23), it does 6 raise the material fact question of what Salazar told 7 Ridgel in total and what Ridgel would have reasonably 8 interpreted from the combined statements. 9 10 More directly, Ridgel controverts the Government's 11 assertions that Salazar instructed Ridgel to notify him 12 or Hendon before he went up to the roof to fix the leak. 13 (SUF ¶ 24; SGI ¶ 24; SAUF ¶¶ 25-28.) In addition to 14 declaring he never received such instruction from 15 Salazar, Ridgel submits evidence that (1) he was never 16 required to seek approval before accessing the roof or, 17 absent written instructions, before beginning his work 18 during his multiple previous jobs at the VA (SAUF ¶¶ 52, 19 54); (2) he never received any written instructions to 20 notify an employee before beginning his work or regarding 21 any safety issue (id. ¶ 56); and (3) Hendon, Ridgel's 22 primary contact at the VA for this job, declares that he 23 never asked Ridgel to notify him before beginning work 24 (id. ¶¶ 57-60).2 25 2 In Paragraphs 25-27 of the SUF, the Government again asserts that Salazar instructed Ridgel to notify 26 him or Hendon before beginning work, but also indicates 27 that Salazar provided Ridgel with three specific rationales for this request; that is, Salazar gave Ridgel (continued...) 28 18 1 2 Second, the Government submits the fact that Ridgel 3 accessed the third-floor roof without contacting Hendon, 4 Salazar, "or any employees from the Long Beach VA Safety 5 Office." (SUF ¶ 28.) Ridgel does not controvert this 6 fact, but the submitted fact gives rise to further issues 7 of material fact, as Ridgel did notify and was granted 8 access to the third-floor roof by Walter Schmidt, a 9 member of the VA's engineering staff who reported to 10 Hendon. (SGI ¶ 28; SAUF ¶¶ 65-71.) Sanchez, a Safety 11 Specialist at the VA, testified that when Ridgel asked 12 Schmidt to unlock the door for him to the third-floor 13 roof, Schmidt "should have probably notified the safety 14 office" and that, at "safety meetings," Schmidt and 15 others were likely "told . . . to make sure that they . . 16 . call the safety office before . . . any contractors go 17 up on the roof." (SAUF ¶¶ 72, 73; Ruttenberg Decl., Ex. 18 C ("Sanchez Dep.") at 34:25-35:18; 36:4-16.) 19 20 Third, the Government asserts that, had Ridgel 21 informed Salazar or Hendon prior to beginning his work, 22 23 24 25 26 27 28 2 (...continued) the notification instructions "so either Mr. Hendon or Mr. Salazar could provide Plaintiff access through the locked door" (SUF ¶ 25); "to determine how Plaintiff could actually reach the fourth floor roof" (id. ¶ 26); and "so the VA could take steps to ensure" Ridgel's safety (id. ¶ 27). As the Government has not submitted evidence to establish that Salazar stated these reasons to Ridgel, as opposed to just having thought them, these submitted facts are immaterial. (See Salazar Decl. ¶ 8 ("I gave Mr. Ridgel these instructions for three reasons: . . . .").) 19 1 they would have taken certain precautions that could have 2 prevented Ridgel's injury. (See SUF ¶¶ 34-36.) While 3 such asserted facts are hypothetical and thus difficult 4 to establish, the most salient of the assertions, that 5 notifying the appropriate people would have lead them to 6 divert the flow of potential condensate away from the 7 steam pipe, is controverted by Ridgel's evidence. 8 36.) (Id. ¶ Salazar, who allegedly gave Ridgel these 9 instructions, had never operated the boiler system, which 10 includes the liquid mover, and did not know how to 11 operate it, and Salazar had not told Hendon about the 12 potentially malfunctioning liquid mover. 13 ¶ 11, 12, 14, 15, 61.) (SGI ¶ 36; SAUF Thus, there is a material issue 14 of fact as to what role, if any, notifying Salazar or 15 Hendon would have had with to Ridgel's injury. 16 IV.DISCUSSION 17 18 19 A. Substantive Law for Independent Contractors and 20 Negligence Claims 21 22 In California, "[e]veryone is responsible, not only 23 for the result of his or her willful acts, but also for 24 an injury occasioned to another by his or her want of 25 ordinary care or skill in the management of his or her 26 property or person, except so far as the latter has, 27 willfully or by want of ordinary care, brought the injury 28 20 1 upon himself or herself." Cal. Civ. Code § 1714. "The 2 threshold element of a cause of action for negligence is 3 the existence of a duty to use due care toward an 4 interest of another that enjoys legal protection against 5 unintentional invasion." 6 Cal. 4th 370, 397 (1992). Bily v. Arthur Young & Co., 3 Nevertheless, where the 7 injured party is an independent contractor or employee of 8 an independent contractor, under California law, the 9 injured contractor generally "cannot sue the party that 10 hired the contractor to do the work." SeaBright Ins. Co. 11 v. US Airways, Inc., 52 Cal. 4th 590, 594 (2011). This 12 rule, established in Privette v. Superior Court 5 Cal. 13 4th 689 (1993), is subject to limited exceptions. See 14 id.; Kinsman v. Unocal Corp., 37 Cal. 4th 659, 680 15 (2005). The exception to the Privette rule upon which 16 Ridgel relies, a claim of premises liability, holds that 17 a "hirer as landowner may be independently liable to the 18 contractor's employee . . . if (1) [the hiring landowner] 19 knows or reasonably should know of a concealed, pre20 existing hazardous condition on its premises; (2) the 21 contractor does not know and could not reasonably 22 ascertain the condition; and (3) the landowner fails to 23 warn the contractor." Kinsman, 37 Cal. 4th at 675. 24 25 This exception, however, is subject to its own 26 limitations. The hirer is not liable, for example, where 27 the contractor creates the hazard or where the hazard is 28 21 1 apparent and the contractor fails to take appropriate 2 safety precautions. See Gravelin v. Satterfield, 200 3 Cal. App. 4th 1209, 1216 (2011). "A hirer is also not 4 liable where a worker is injured because the contractor 5 'has failed to engage in inspections of the premises 6 implicitly or explicitly delegated to it.'" Id. (quoting 7 Kinsman, 37 Cal. 4th at 677). 8 9 B. Judgment as a Matter of Law 10 11 The Court finds that Ridgel's submitted evidence shows 12 that there are a number of genuine disputes of material 13 fact in this matter. Thus, the evidence submitted by the 14 parties does not establish facts upon which the Court can 15 grant judgment as a matter of law under FRCP 56. 16 17 The Government argues that the evidence establishes 18 that a reasonable jury cannot find that (1) Ridgel was 19 injured by a concealed, hazardous condition; (2) Ridgel 20 was not aware of or could not reasonably ascertain the 21 condition of the pipe; and (3) the VA did not explicitly 22 warn Ridgel about the pipe. The Court disagrees. 23 24 First, the Government argues that that the pipe was 25 not concealed, as "there was nothing concealed about the 26 fact that the pipe could emit steam" and Ridgel knew from 27 his revised work proposal that he would be doing work 28 22 1 regarding a "hot vent pipe." 2 fails. (MSJ at 8.) This argument There are disputed facts as to whether Ridgel 3 knew the pipe was a steam pipe. Even if Ridgel did know 4 this, the Government offers no explanation as to why a 5 non-concealed "hot vent pipe" or "steam pipe" would lead 6 to the conclusion that the pipe's "volcanic effect, where 7 [190-degree] water was gushing out every so often," would 8 not be a concealed, hazardous condition. 9 At 35:4-7.) (Salazar Dep. Further, the concealed, hazardous condition 10 may be more properly identified as the malfunctioning 11 liquid mover. The evidence establishes or shows a 12 genuine dispute of facts as to (1) the VA's lack of 13 effort to repair the malfunctioning liquid mover before 14 Ridgel's injury; (2) Salazar's failure to mention the 15 malfunction to Hendon when telling him about what work 16 needed to be done; and (3) Salazar's failure to mention 17 the malfunction to Ridgel. Therefore, there is 18 sufficient evidence on which a jury could reasonably find 19 that Ridgel was injured by a concealed, hazardous 20 condition. 21 22 In its Reply, the Government argues that Ridgel "has 23 failed to present any evidence to establish that [the VA] 24 was aware, or should have been aware, of an unsafe, 25 hazardous condition with respect to the liquid mover on 26 March 23, 2011." (Reply at 2.) 27 argument is unavailing. The Government's Salazar investigated a reported 28 23 1 water leak and determined that a likely cause was a 2 malfunctioning liquid mover in the basement that was 3 causing the fourth-floor pipe to emit scalding water. 4 Salazar also declares that when he took Ridgel to the 5 third-floor roof, the pipe "was still regularly emitting 6 scalding condensate on the fourth floor roof." 7 Decl. ¶ 7.) (Salazar This constitutes evidence that the 8 Government should have been aware that the liquid mover 9 that was malfunctioning shortly before March 23, 2011, 10 and which had not been repaired, would still be 11 malfunctioning on March 23, 2011. 12 13 Second, the Government argues that Ridgel knew or 14 could have ascertained the condition of the pipe. 15 at 9.) (MSJ The factual disputes regarding what Salazar told 16 Ridgel or whether Ridgel saw water emitting from the pipe 17 when Salazar took him to the third-floor roof are the key 18 issues of fact as to this element. Resolving these 19 disputed facts and making credibility determinations 20 regarding Ridgel and Salazar's statements are functions 21 that must be performed by the jury, not the Court. See 22 Anderson, 477 U.S. at 355; Aloe Vera of Am., Inc. v. 23 United States of America, 699 F.3d 1153, 1165 (9th Cir. 24 2012). The Government contends that, despite these 25 disputed facts as to Ridgel's knowledge, Ridgel would 26 have ascertained the hazardous condition "had he taken 27 even the most basic safety precautions." 28 24 (MSJ at 9.) 1 The Government submits no admissible evidence though to 2 show that Ridgel failed to take basic safety precautions. 3 Nor does the Government establish that it was 4 unreasonable for Ridgel not to inform Hendon or Salazar 5 before he began his work, particularly in light of the 6 evidence that Ridgel had performed work, including roof 7 work, at the VA many times without going through or being 8 asked to go through the notification procedures that the 9 Government now describes as basic safety precautions. 10 Further, the evidence shows that VA employees did know 11 that Ridgel was beginning his work, as Hendon's 12 subordinate, Walter Schmidt, and another VA employee 13 helped Ridgel access the third-floor roof. The 14 Government also fails to support its defense that Ridgel 15 failed to make a reasonable inquiry or inspection. 16 at 10.) (Id. While Ridgel submits evidence that he did 17 inspect the worksite on March 23, 2011 (Ridgel Decl. ¶¶ 18 23-24), it is unclear what inspection Ridgel could 19 reasonably be expected to perform that would allow him to 20 discover a malfunctioning liquid mover in the basement 21 causing the emission of scalding liquid from the pipe to 22 which he was hired to apply sealant. 23 24 Third, the Government's argument that Salazar 25 "explicitly warned" Ridgel "about the hot steam vent 26 pipe" has no merit as it is clearly premised on 27 controverted facts, as described above. 28 25 (MSJ at 11.) 1 2 The Government also argues that Ridgel should be 3 "barred from suing for premises liability" because he 4 "was not qualified or licensed to perform the work he 5 contracted to do for the Long Beach VA." (Reply at 7.) 6 In its MSJ, the Government identifies and defines 7 Ridgel's contractor license in the "Statement of Facts" 8 section and in the SUF. (MSJ at 2-4; SUF ¶¶ 3-8.) The 9 Government does not, however, make any arguments based on 10 the terms of Ridgel's license or even mention the license 11 or related facts in the "Argument" section of its MSJ.3 12 The Court therefore does not consider this argument, as 13 it is made by the Government for the first time in its 14 Reply. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 15 1999) ("[A]n argument raised for the first time in a 16 reply brief . . . is not an argument that we may consider 17 here.") (emphasis in original); In re WellPoint, Inc. 18 Out-of-Network UCR Rates Litig., 865 F. Supp. 2d 1002, 19 1047 (C.D. Cal. 2011). The Court particularly notes here 20 that a party cannot preserve lines of argument by listing 21 relevant facts but then waiting until the Reply to make 22 any arguments or draw inferences based on those facts. 23 Cf. Smith, 194 F.3d at 1052 n.5 (stating a district court 24 is "under no obligation to take factual claims made by 25 the parties and fashion them into legal arguments"); 26 Entertainment Research Group, Inc. v. Genesis Creative 27 3 The Court notes that the Government had ample room 28 to include such an argument in its 10-page MSJ. 26 1 Group, Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) ("We 2 will not manufacture arguments for an appellant, and a 3 bare assertion does not preserve a claim. . . ."). 4 5 The Court therefore finds that there are multiple 6 genuine disputes of material fact established by the 7 evidence and that the Government is not entitled to 8 judgment as a matter of law. The Court thus DENIES the 9 Government's Motion for Summary Judgment. 10 11 IV. CONCLUSION 12 13 For the foregoing reasons, the Court DENIES the 14 United States of America's Motion for Summary Judgment. 15 16 17 18 19 20 21 22 23 Dated: 24 May 21, 2013 Jesus G. Bernal United States District Judge 25 26 27 28 27
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