Klemke v. ISEC, Inc. CA4/1

Filed 3/24/14 Klemke v. ISEC, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

RICHARD KLEMKE et al., D062568

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2010-00091692-CU-
PO-CTL)
ISEC, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy T.

Taylor, Judge. Reversed.

Rupp Johnston & Lloyd and Andrew F. Lloyd for Plaintiffs and Appellants.

Gordon & Rees, Steven A. Sobel, Matthew G. Kleiner and Brandon D. Saxon, for

Defendant and Respondent.

Plaintiffs Richard Klemke, Barry Wang, Wei Wang, Erin Zardouzian, Konstantin

Stoletov and Laurie Gay (collectively plaintiffs) appeal after the trial court granted summary

judgment in favor of ISEC, Inc. on the ground plaintiffs demonstrated no breach of a legal

duty by ISEC and failed to raise a triable issue of fact as to causation. Plaintiffs contend the

trial court improperly granted summary judgment in favor of ISEC because ISEC did not
raise the issue of breach of duty and triable issues of fact exist as to causation. We agree and

reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are six individuals that worked as part of the Klemke Lab located in a

building at the University of California, San Diego (UCSD). USCD renovated the

Klemke Lab in 2004. UCSD contracted with defendant RSM2 Contractors, Inc. (RSM2)

to perform demolition, construction, inspection and testing. In turn, RSM2 subcontracted

some of the work to defendant A.O. Reed & Company (Reed). UCSD also hired ISEC to

install laboratory casework (cabinetry).

Around February 2006, the Klemke Lab moved into the renovated space. After

moving into the space, plaintiffs began noticing odors and suffered physical symptoms

that they attributed to the odors. The physical symptoms suffered by the plaintiffs varied,

but included: eye irritation, dizziness, nausea, fainting, headaches, blurred vision and

coughing. The odors were transient and lasted from several minutes to several hours.

The physical symptoms could also last several days.

In 2008, it was discovered that the odors were coming from uncapped glass waste

lines hidden behind a fume hood and cabinet drawers. The odors stopped after the waste

lines were capped.

Plaintiffs sued ISEC, RSM2 and Reed (collectively defendants) alleging causes of

action for negligence and negligence per se. All defendants moved for summary

judgment or summary adjudication. As relevant to this appeal, ISEC separately moved

for summary judgment as to each of the six plaintiffs on the ground each plaintiff could

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not establish the necessary elements of causation or compensable damages. It

alternatively sought summary adjudication as to each plaintiff's claim for damages for

fear of cancer (including past medical expenses), medical monitoring and loss of earning

capacity.

The trial court granted summary judgment in favor of ISEC as against all plaintiffs

on the ground plaintiffs failed to raise a triable issue of material fact as to causation and

plaintiffs "demonstrated no breach of a legal duty by ISEC." The trial court also

concluded as to plaintiff Barry Wang, that ISEC "properly tendered the issue of duty in

its moving papers."

At oral argument on the court's tentative ruling, plaintiffs argued they had no

obligation to present any evidence on the issues of duty or breach of duty because ISEC

did not present any evidence on these issues and there was "literally one line in their

moving papers" on these issues. Plaintiffs argued that had ISEC put the elements of duty

and breach at issue in its motion and presented evidence on these elements, they would

have presented evidence to support these elements. The trial court rejected plaintiffs'

arguments, stating "so far you haven't persuaded me that my tentative is wrong." The

trial court concluded that plaintiffs failed to present any evidence showing ISEC acted

below the standard of care for a cabinetmaker by installing a cabinet that covered up an

uncapped waste pipe.

Plaintiffs moved for reconsideration, but the court concluded that the motion was

"untimely" because it had already signed the judgment. Plaintiffs appealed the judgment.

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 DISCUSSION

I. General Legal Principles

Summary judgment is properly granted when there is no triable issue of material fact

and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,

subd. (c).) Where the defendant is the moving party, it must show that a cause of action has

no merit by putting forth evidence that either one or more elements of the cause of action,

even if separately pleaded, cannot be established or that a complete defense exists thereto.

(Code Civ. Proc., § 437c, subd. (o) & (p)(2); Saelzler v. Advanced Group 400 (2001) 25

Cal.4th 763, 768 (Saelzler).) If the defendant meets this burden, the burden shifts to the

plaintiff to establish that a triable issue of material fact exists. (Code Civ. Proc., § 437c,

subd. (p)(2); Saelzler, supra, at p. 768.)

We review the trial court's decision to grant summary judgment de novo. (Saelzler,

supra, 25 Cal.4th at p. 768.) We must view the evidence submitted in connection with a

motion for summary judgment in a light most favorable to the party opposing the motion and

resolve "any evidentiary doubts or ambiguities in plaintiff's favor." (Ibid.) We

independently determine whether the record supports the trial court's conclusions that the

asserted claims fail as a matter of law, and we are not bound by the trial court's stated

reasoning or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,

951.)

II. Analysis

Plaintiffs assert the trial court erred in granting summary judgment in favor of ISEC

because ISEC failed to meet its initial burden of negating their allegations of duty and breach

4
of duty; accordingly, the burden of proof never shifted to them to present any evidence on

these elements. We agree.

A notice of motion must state the grounds on which the motion is made. (Code Civ.

Proc., § 1010.) A plaintiff opposing a summary judgment motion need not show triable

issues of fact on matters not argued by the moving party in its motion. (Folberg v. Clara

G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 140.) "[W]hen the trial court grants a

summary judgment motion on a ground of law not explicitly tendered by the moving party,

due process of law requires that the party opposing the motion must be provided an

opportunity to respond to the ground of law identified by the court and must be given a

chance to show there is a triable issue of fact material to said ground of law." (Juge v.

County of Sacramento (1993) 12 Cal.App.4th 59, 70 (Juge); accord Cordova v. 21st Century

Ins. Co. (2005) 129 Cal.App.4th 89, 109 ["trial court violated the settled principle summary

judgment may not be granted on a ground not asserted by the moving party without giving

the opposing party an opportunity to respond"].) Additionally, where the dispositive ground

of law was not asserted in the trial court by the moving party, a reviewing court ordinarily

cannot determine if the trial court's decision was correct unless the record establishes that the

opposing party "could not have shown a triable issue of material fact had the ground of law

been asserted by the moving party." (Juge, supra, at p. 71.)

"Under general negligence principles, . . . a person ordinarily is obligated to exercise

due care in his or her own actions so as not to create an unreasonable risk of injury to others,

and this legal duty generally is owed to the class of persons who it is reasonably foreseeable

may be injured as the result of the actor's conduct." (Lugtu v. California Highway Patrol

5
(2001) 26 Cal.4th 703, 716.) The elements of a cause of action for negligence are duty,

breach of the duty, causation, and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604,

614.)

Here, ISEC sought summary judgment on the ground each plaintiff could not

establish the necessary elements of causation or compensable damages. Accordingly, in

drafting its motion, ISEC necessarily assumed that triable issues of fact existed on the

precursor elements of duty and breach of duty. (Paz v. State of California (2000) 22 Cal.4th

550, 559 [existence of a duty is the threshold element of a negligence cause of action].) The

trial court disagreed, concluding that plaintiffs "demonstrated no breach of a legal duty by

ISEC." As to plaintiff Barry Wang, the trial court cited to specific portions of ISEC's

moving papers to conclude that ISEC "properly tendered the issue of duty in its moving

papers."

Review of ISEC's moving papers, including the portions of the record cited by the

trial court, refutes the trial court's finding that ISEC argued the issues of duty or breach of

duty. The evidence cited by the trial court generally established that UCSD contracted with

ISEC to install cabinets, that multiple contractors worked at the site and that two uncapped

pipes were found behind cabinets. This evidence does not address the scope of duty for a

cabinet installer such as ISEC or whether ISEC breached its duty of care. ISEC's moving

points and authorities cited a general statement of law that a negligence cause of action

requires a plaintiff prove duty, breach of duty, proximate cause and damages. ISEC,

however, never argued that it did not owe plaintiffs a duty of care or that the undisputed facts

showed no breach of its duty.

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 Additionally, ISEC conceded at oral argument before us that it did not raise the issues

of duty or breach of duty in its moving papers and that it did not present any evidence on

these issues. It also admitted that it presented no evidence that it did not breach the duty of

care alleged by plaintiffs to perform its work in a "competent and workmanlike manner in

accordance with applicable contract, plans and specifications as well as all applicable

building codes, regulations, and manufacturer specifications" so as not to expose plaintiffs to

toxic substances.

Nonetheless, a trial court may decide a summary judgment motion on a ground of law

not explicitly tendered by the moving party if it provides the party opposing the motion an

opportunity to respond to the ground of law identified by the court and "show there is a

triable issue of fact material to said ground of law." (Juge, supra, 12 Cal.App.4th at p. 70.)

The trial court violated plaintiffs' right to due process by depriving them of a meaningful

opportunity to present additional argument and evidence.

In its tentative ruling, the trial court did not give plaintiffs leave of court to present

additional argument and evidence on the elements of duty or breach thereof. At oral

argument below, plaintiffs correctly argued to the trial court that it did not present any

evidence on duty or breach of duty because ISEC did not put these elements at issue in its

motion. At this point, the trial court should have continued the motion to allow the parties to

present argument and evidence on these issues. It did not do so. Instead, the trial court

summarily rejected plaintiffs' argument, stating "so far you haven't persuaded me that my

tentative is wrong." We fail to see what more plaintiffs could have done to show the trial

court the error of its ways.

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 At oral argument below, the trial court and plaintiffs agreed that plaintiffs would raise

their grievances to the court's actions in a reconsideration motion. Plaintiffs filed a

reconsideration motion, noting therein that defendants served written notice of entry of the

ruling by mail on February 22, 2012. (All further date references are to 2012.) Thus,

plaintiffs had 10 "days after service upon the party of written notice of entry of the order" to

file a motion for reconsideration. (Code Civ. Proc., § 1008, subd. (a).) Although the

reconsideration motion in the record on appeal is not date stamped, it was dated February 29.

Thus, the motion appears to have been timely filed.

ISEC, however, submitted a judgment and the court signed the judgment on

February 28, before plaintiffs filed their reconsideration motion. This act automatically

deprived the court of jurisdiction to rule on the motion. (Safeco Ins. Co. v. Architectural

Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482 ["It is well settled that entry of

judgment divests the trial court of authority to rule on a motion for reconsideration."].) The

trial court denied the reconsideration motion based on lack of jurisdiction, again stated that

ISEC tendered the issue of duty in its moving papers and found that plaintiffs' counsel did

not have a valid reason for not presenting its expert declaration earlier. (The concurrence

notes that plaintiffs did not appeal the denial of their reconsideration motion. (Post,

Concurrence at fn. 4.) This is not surprising as the trial court properly ruled that it lacked

jurisdiction to decide the motion.) ISEC's act of submitting a judgment to the trial court

before the 10 days expired for plaintiffs to seek reconsideration appears underhanded as the

trial court and plaintiffs agreed that plaintiffs would raise their complaint to the court's

actions in a reconsideration motion. This act deprived plaintiffs of their opportunity to

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address the trial court's procedural error. Moreover, a party opposing a motion for summary

judgment has no obligation to present any evidence until the moving party meets its initial

burden of production. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454,

468.) By requiring plaintiffs to file a reconsideration motion containing evidence on the

elements of duty and breach thereof the trial court compounded the problem as plaintiffs had

no obligation to present any evidence on these elements until ISEC met its initial burden of

proof.

In summary, the trial court violated the plaintiffs' right to due process by deciding the

summary judgment motion on a ground not raised by ISEC because it did so without giving

plaintiffs a meaningful opportunity to respond. Additionally, as we shall discuss, the record

was never fully developed on the legal question of duty and the record fails to establish as a

matter of law that plaintiffs could not have shown a triable issue of material fact had the

issue of breach of duty been argued by ISEC. (Juge, supra, 12 Cal.App.4th at p. 71.)

ISEC contends the trial court properly rejected plaintiffs' argument, raised for the first

time at the hearing on the motion, that it was below the standard of care for a cabinetmaker

to install a cabinet that covered up an uncapped waste pipe. Specifically, ISEC argues it did

not have a duty to cap the waste pipes as the evidence shows Reed was contracted to cap the

waste pipes and plaintiffs are improperly raising for the first time the allegation that ISEC

had a duty to not install the cabinetry in front of the uncapped waste lines. We disagree. We

begin our review by examining the elements of the causes of action alleged by plaintiffs and

scrutinizing the allegations of plaintiffs' complaint.

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 As codified in Evidence Code section 669, the negligence per se doctrine creates a

presumption of negligence if four elements are established: "(1) the defendant violated a

statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death

or injury to person or property; (3) the death or injury resulted from an occurrence of the

nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the

person suffering the death or the injury to his person or property was one of the class of

persons for whose protection the statute, ordinance, or regulation was adopted." (Galvez v.

Frields (2001) 88 Cal.App.4th 1410, 1420.) The elements of a cause of action for

negligence are duty, breach of the duty, causation and damages. (Artiglio v. Corning Inc.,

supra, 18 Cal.4th at p. 614.) "The existence of a legal duty to use reasonable care in a

particular factual situation is a question of law for the court to decide. [Citation.] However,

the elements of breach of that duty and causation are ordinarily questions of fact for the

jury's determination." (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269,

278.) Causation may also be a question of law if the facts are undisputed and only one

conclusion can be drawn. (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)

Plaintiffs alleged in their complaint that ISEC's "act" was the installation of cabinetry

in the Klemke Lab. In their negligence per se cause of action, plaintiffs asserted that the

work done by defendants violated applicable California building and plumbing codes and

defendants' negligence caused them damages. In their negligence claim, plaintiffs alleged

that all defendants, including ISEC, owed them a duty to perform their work in a "competent

and workmanlike manner in accordance with applicable contract, plans and specifications as

well as all applicable building codes, regulations, and manufacturer specifications" so as not

10
to expose plaintiffs to toxic substances from the building, including the acid waste line drain

system. Plaintiffs asserted that defendants, including ISEC, breached their respective duties

because two acid waste lines were not capped, which exposed them to toxic substances. As a

proximate result of these breaches of duty, plaintiffs claim they suffered damages.

"Negligence may be alleged in general terms; that is, it is sufficient to allege an act

was negligently done without stating the particular omission which rendered it negligent.

[Citations.] '[T]here is no requirement that [the plaintiff] identify and allege the precise

moment of the injury, or the exact nature of the wrongful act.' " (Hahn v. Mirda (2007) 147

Cal.App.4th 740, 747-748.) Here, the complaint does not allege that any of the defendants

had a specific duty to cap the waste pipes; rather, plaintiffs generally alleged that all

defendants owed them a duty of care to perform their work in accordance with contracts,

plans and specifications, building codes, regulations, and manufacturer specifications so as

not to expose them to toxic substances.

While it is undisputed that Reed was contractually obligated to cap the waste pipes,

this fact does not absolve ISEC of its potential duty of care as alleged by plaintiffs.

Moreover, ISEC argued on appeal that expert testimony was necessary to establish the scope

of its duty and the applicable standard of care. Notably, ISEC presented no such evidence

and, as plaintiffs correctly note, the trial court erred when it chided plaintiffs for failing to

present such evidence as ISEC had not met its initial burden of production. (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [the burden of production does not shift

unless the moving party carries its initial burden].)

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 Simply put, the trial court improperly decided the legal question of whether a duty

existed on an incomplete factual record and required plaintiffs to present evidence on the

issues of duty and breach of duty in their reconsideration motion when ISEC did not meet its

initial burden of production on these issues in its summary judgment motion. We part

company with our concurring colleague as we believe an analysis based on Rowland v.

Christian (1968) 69 Cal.2d 108 is premature because ISEC did not move for summary

judgment on this ground, presented absolutely no evidence on the Rowland factors and stated

in its respondent's brief that expert testimony is necessary to determine the duty issue.

Nonetheless, we may affirm the ruling if it is correct on any ground, regardless of the

trial court's stated reasons. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071,

1083.) Here, ISEC properly tendered the elements of causation and damages in its notice of

motion as to each plaintiff and these issues were fully briefed by the parties. Accordingly,

we examine whether ISEC met its initial burden of showing plaintiffs' negligence and

negligence per se causes of action had no merit by putting forth evidence that the elements of

causation or damages could not be established. (Code Civ. Proc., § 437c, subd. (o) &

(p)(2).) ISEC generally argued that all plaintiffs could not establish causation because they

could not show what the alleged odors were composed of, that they were exposed to any

hazardous substances or what caused their symptoms. ISEC reasoned that because plaintiffs

were not injured, they suffered no damages. ISEC presented evidence suggesting each

plaintiff could not establish exposure to any hazardous substances or physical injury

attributable to any such exposure. Accordingly, ISEC met its initial burden of proof and the

12
burden shifted to plaintiffs to show a triable issue of material fact. (Code Civ. Proc., § 437c,

subd. (p)(2).)

Plaintiffs satisfied their burden. In opposition to the motion, plaintiffs presented

declarations from three experts. Jim Tarr, a chemical engineer, addressed the mechanism of

delivery of toxic or noxious chemicals and the likely sources of exposure to the plaintiffs.

Dr. Rod O'Connor, an environmental chemical toxicologist, rendered opinions regarding

chemical exposure and drew conclusions as to whether the injuries suffered were causally

related to chemical exposure. Finally, Ralph Szaras, an industrial hygienist, inspected the

Klemke Lab and tested the air in the early part of January 2012.

Szaras's testing revealed a "chemical fog" that "smelled foul" and corroded brass

fittings and plastic on the sampling container. Testing by Tarr revealed two toxic chemicals

(acetonirile and xylene) in an uncapped waste line. Tarr opined that the waste lines likely

contaminated the air in the Klemke Lab with noxious or toxic chemicals. Based on the

nature of the odors, Dr. O'Connor identified four chemicals used in some laboratories

connected to the faulty drain system that could cause the physical symptoms suffered by

plaintiffs. Dr. O'Connor concluded that the faulty drainage system exposed plaintiffs to toxic

chemicals, that the odors caused the symptoms that plaintiffs experienced, that plaintiffs

suffered physical injuries consistent with exposure to one or more toxic chemicals and had

an increased risk for long-term health effects. From this evidence a trier of fact could

reasonably infer that the odors that caused plaintiffs' physical symptoms were toxic and came

from the uncapped waste lines. Accordingly, the trial court erred by granting summary

judgment based on lack of causation. Because the record is devoid of any evidence

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regarding the scope of ISEC's duty of care, we express no opinion on the ultimate merit of

plaintiffs' claims.

Finally, we note that ISEC argued in its respondent's brief that the trial court

should have granted its alternative request for summary adjudication of plaintiffs' claims

for damages for fear of cancer (including past medical expenses), medical monitoring and

loss of earning capacity. This matter is not properly before us. Plaintiffs did not raise

this issue in its opening brief and ISEC failed to file a cross-appeal. (California State

Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7 [a

respondent who does not appeal from the judgment may not argue error on appeal].)

DISPOSITION

The judgment is reversed. Plaintiffs are entitled to their costs on appeal.

McINTYRE, J.
I CONCUR:

IRION, J.

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 BENKE, Acting P. J., Concurring.

I write separately to make clear two points. First, I wholeheartedly agree with the

majority that this court has not decided the issue of whether ISEC, Inc. owed a duty of

care sounding in tort to plaintiffs. (See maj. opn. ante, at p. 11 ["While it is undisputed

that [the plumbing subcontractor] was contractually obligated to cap the waste pipes, this

fact does not absolve ISEC of its potential duty of care as alleged by plaintiffs." (Italics

added.)].) I further note the trial court likewise did not reach that issue, despite the

majority's statement otherwise (see maj. opn. ante, at p. 12 ["Simply put, the trial court

improperly decided the legal question of whether a duty existed on an incomplete factual

record . . . ."]), when it granted summary judgment in favor of ISEC, as the record shows

the court found no triable issue of material fact on the issues of breach and causation.

Second, assuming the parties on remand tee up the duty issue, I have reservations

whether plaintiffs can establish that ISEC owed them a duty of care. Looking at the

entire1 record and considering that ISEC was merely a subcontractor/cabinet installer

under a third-party contract with the University of California, San Diego (UCSD)

involving a project to renovate a school laboratory, in my view, the duty factors outlined

by our Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) suggest

ISEC may not owe such a duty.

1 I say entire because I am including the "evidence" plaintiffs proffered on the issue
of duty—as opposed to the breach thereof—in the declaration of their general contractor
expert, Larry J. Gliko, in support of their motion for reconsideration that the trial court
did not consider when it denied that motion.
 That said, I recognize the majority's point that plaintiffs should at least be afforded

an opportunity to brief any issue that the trial court uses as a basis to grant summary

judgment. Therefore, I concur in the majority decision to remand the case on the grounds

the trial court violated plaintiffs' due process rights when it decided ISEC's motion for

summary judgment on a ground neither raised by ISEC nor briefed by plaintiffs.

OVERVIEW

ISEC was one of several defendants that participated in the renovation of a

laboratory (the Klemke lab) at UCSD. ISEC was contracted by UCSD to build

laboratory cabinetry in the Klemke lab. About four years after ISEC completed its work,

two glass acid waste lines were found uncapped. Plaintiffs Richard Klemke, Barry

Wang, Wei Wang, Erin Zardouzian, Konstantin Stoletov and Laurie Gay worked in the

Klemke lab. They sued the general contractor RSM2 Contractors, Inc. (RSM2), the

plumbing subcontractor A.O. Reed & Co. (A.O. Reed) and ISEC for negligence as a

result of their exposure to "toxic, noxious, and/or hazardous liquids, gasses and solids

from . . . the acid waste line drain system" (toxic substances).

Plaintiffs in their operative complaint alleged that defendants ISEC, RSM2 and

A.O. Reed owed them a duty "to perform works of demolition, construction, renovation,

inspection, and testing at the [Klemke lab] in a competent and workmanlike manner in

accordance with applicable contract, plans, and specifications as well as all applicable

building codes, regulations, and manufacturer specifications so that said individuals

would not be exposed" to toxic substances. They further alleged defendants breached

2
that duty and caused them injury because the uncapped waste lines were "hidden,

concealed and not observable by a reasonable person and [p]laintiffs were not aware of,

nor could they reasonably . . . have become aware of, the physical cause of their injuries

and the negligent acts and defective conditions which caused their injuries before such

discovery."

ISEC2 moved for summary judgment/adjudication as to each of the six plaintiffs.3

ISEC contended in its moving papers that plaintiffs could not establish ISEC caused them

to suffer compensable damages. ISEC alternatively contended that as a matter of law

plaintiffs could not recover " 'damages for fear of cancer and any past medical expenses

stemming therefrom, damages for medical monitoring, and damages for loss of earning

capacity.' "

The trial court granted ISEC's motion(s) for summary judgment against plaintiffs.

In so doing, the court noted in its order that in addition to moving for summary judgment

on the issue of causation and damages, ISEC also "properly tendered the issue of duty in

2 RSM2 and A.O. Reed also separately filed motions for summary
judgment/adjudication. The trial court denied the motions for summary judgment of
RSM2 and A.O. Reed in part because it found each owed a duty of care to plaintiffs in
connection with the uncapped waste lines. The court, however, granted their alternative
motions for summary adjudication on plaintiffs' claim for damages for fear of future
injury. Because the trial court granted summary judgment in favor of ISEC, it did not
reach ISEC's separate request for summary adjudication on this same issue.

3 Although ISEC filed six separate motions for summary judgment/adjudication, in
my review of the record I note, as do the parties, that the motions are substantially
similar. This view was also shared by the trial court. Thus, unless otherwise indicated,
my discussion refers and applies to each of the six individual summary judgment
motions.
3
its moving papers." The court, however, did not use duty as the basis to grant summary

judgment; instead, the court found that plaintiffs did not provide "a hint of evidence

linking the uncapped waste pipe to any work performed in the [Klemke lab] by ISEC in

2004" and that plaintiffs, in their additional undisputed material facts, admitted that ISEC

was not "in any manner responsible for [capping] the acid waste pipes. The court thus

granted summary judgment because plaintiffs "failed to raise a triable issue of fact as to

causation with respect to ISEC[] and . . . demonstrated no breach of a legal duty by

ISEC . . . ." (Italics added.)

Plaintiffs subsequently moved for reconsideration based on new and additional

facts. As relevant here, plaintiffs in that motion included the declaration of their general

contracting expert, Larry Gliko, who opined in part as follows:

"I was retained as an expert for plaintiffs in this matter in or about March 2011.

My first visit to the site was on March 29, 2011. I personally observed the areas where

the uncapped drain lines were found. I have reviewed the plans form the 2004 renovation

undertaken by defendants in this matter. I have reviewed the pertinent provisions of the

contract between the University of California, San Diego and RSM2, the general

contractor. I have also reviewed pertinent portions of the testimony of Douglas Reed

from A. O. Reed, and Robert Samuel from RSM2 [citations]. I have experience with a

knowledge of installation of casework as a result of my work as a general contractor and

forensic expert. Casework is typically installed at the end of construction or remodel as

part of the 'finish' work. The standard of practice and the standard of care for casework

4
installers is that they not cover up defective or incomplete work done by others. This

standard of practice and standard of care is particularly applicable to open drain lines. A

casework installer has a duty not to cover up open drain lines." (Italics added.)

Plaintiffs contended this evidence was not available previously because the parties

had just recently designated their experts and because plaintiffs did not understand the

issue of duty was part of ISEC's summary judgment motion.

As noted, the trial court denied the motion for reconsideration as it related to ISEC

on the basis it was untimely because plaintiffs filed the motion after judgment was

entered in favor of ISEC.4 The court thus found it lacked jurisdiction to hear the motion.

DISCUSSION

A. Guiding Principles

The elements of a cause of action for negligence are: duty, breach of duty, legal

cause and damages. (Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 42.) The existence

of a duty is the "threshold element" of a negligence cause of action (Friedman v. Merck

& Co. (2003) 107 Cal.App.4th 454, 463) and is a question of law for the court. (Ann M.

v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.), disapproved on

other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) "Duty, being a

4 Plaintiffs' appeal does not include the order denying their motion for
reconsideration. That being the case, the reconsideration motion is significant because,
as I noted, it included the "evidence" plaintiffs proffered (after the trial court already had
granted summary judgment against them) in an attempt to establish ISEC owed them a
duty of care.
5
question of law, is particularly amendable to resolution by summary judgment."

(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.)

"A judicial conclusion that a duty is present or absent is merely '"a shorthand

statement . . . rather than an aid to analysis . . . . '[D]uty,' is not sacrosanct in itself, but

only an expression of the sum total of those considerations of policy which lead the law

to say that the particular plaintiff is entitled to protection."' [Citation.] 'Courts, however,

have invoked the concept of duty to limit generally "the otherwise potentially infinite

liability which would follow from every negligent act . . . ."' [Citation.]" (Bily v. Arthur

Young & Co. (1992) 3 Cal.4th 370, 397; see also Ludwig v. City of San Diego (1998) 65

Cal.App.4th 1105, 1110.)

A duty of care generally arises through statute, contract, the general character of

the activity, or the relationship between the parties. (J'Aire Corp. v. Gregory (1979) 24

Cal.3d 799, 803.) Here, plaintiffs and ISEC were not parties to a contract. In addition,

the Gliko declaration does not point to any statute, building code or regulation to support

his opinion that ISEC owed a duty of care to plaintiffs.

Finally, it does not appear there is any relationship between the parties that, in my

view, would give rise to a duty. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th

1112, 1129 [observing that a duty of care may arise if "'"a special relation exists between

the actor and the third person which imposes a duty upon the actor to control the third

person's conduct, or . . . a special relation exists between the actor and the other which

gives the other a right to protection"'"].)

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 Thus, it appears that any duty owed by ISEC to plaintiffs would necessarily arise

through the general character of ISEC's activities. (See Reliance Nat. Indemnity Co. v.

General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074 [noting a reviewing court

reviews a trial court's ruling and "not its rationale" when determining whether the grant of

summary judgment was proper and, thus, a court of review is not bound by the trial

court's stated reasons and will affirm the judgment if correct on any theory advanced].)

B. Duty of Care Factors

The factors to be considered in the duty analysis include: (1) the foreseeability of

harm to the injured party; (2) the degree of certainty that the injured party suffered harm;

(3) the closeness of the connection between the defendant's conduct and the injury

suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of

preventing future harm; (6) the extent of the burden on the defendant and the

consequences to the community of imposing a duty to exercise care with resulting

potential liability. (See Rowland, supra, 69 Cal.2d at pp. 112-113; see also Ann M.,

supra, 6 Cal.4th at p. 675, fn. 5 [using Rowland factors in determining shopping center

did not owe a duty to a tenant's employee to provide security to patrol the common areas

of a shopping center where the plaintiff was raped].)

1. Foreseeability of Harm

In assessing the foreseeability factor, a court of review does not decide whether a

plaintiff's particular injuries were reasonably foreseeable as a result of the particular

actions of a defendant; rather, we "evaluate more generally whether the category of

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negligent conduct at issue is sufficiently likely to result in the kind of harm experienced

that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe

(1986) 41 Cal.3d 564, 572-573, fn. 6.) Foreseeability is determined in light of the totality

of the circumstances and balanced against the burden to be imposed. (Ann M., supra, 6

Cal.4th at pp. 677-678.)

Further, to support a duty of care, the foreseeability must be reasonable. (Juarez v.

Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402.) "The reasonableness

standard is a test which determines if, in the opinion of a court, the degree of

foreseeability is high enough to charge the defendant with the duty to act on it. If injury

to another '"is likely enough in the setting of modern life that a reasonably thoughtful

[person] would take account of it in guiding practical conduct"' [citations], we must label

the injury 'reasonably foreseeable' and go on to balance the other Rowland

considerations." (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 307.)

However, foreseeability alone is not sufficient to create an independent tort duty.

"Because the consequences of a negligent act must be limited to avoid an intolerable

burden on society [citation], the determination of duty 'recognizes that policy

considerations may dictate a cause of action should not be sanctioned no matter how

foreseeable the risk.' [Citation.] '[T]here are clear judicial days on which a court can

foresee forever and thus determine liability but none on which that foresight alone

provides a socially and judicially acceptable limit on recovery of damages for [an]

injury.' [Citation.] In short, foreseeability is not synonymous with duty; nor is it a

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substitute." (Erlich v. Menezes (1999) 21 Cal.4th 543, 552 see also Friedman v. Merck &

Co. (2003) 107 Cal.App.4th 454, 465–466 [noting that "[m]ore than a mere possibility of

occurrence is required since, with hindsight, everything is foreseeable"].)

Here, I conclude the foreseeability factor may favor ISEC. In my view, it is not

reasonable to require a cabinet installer to foresee that, in installing cabinetry in the

Klemke lab pursuant to a contract with UCSD, ISEC would be liable in tort four years

later for injuries to third parties due to the failure of the plumber and/or general

contractor to install one or more caps on waste lines that ISEC had absolutely nothing to

do with. (See N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358,

1376 [noting that "'"[w]ithout evidence that a defendant knew or reasonably should have

known there was any danger or potential danger associated with that defendant's act or

failure to act, any imposition of liability would in essence be the imposition of liability

without fault"'"].)

That said, the record shows plaintiffs generally alleged in their operative

complaint that defendants (including ISEC) owed them a duty to perform their work in

accordance with applicable contracts, plans, and specifications as well as with all

applicable building codes, regulations and specifications and that defendants breached

that duty because the waste lines were uncapped and hidden. On remand, if the issue of

duty or breach thereof arises, plaintiffs will then have a chance to proffer evidence to

support these general allegations.5

5 As noted ante, the Gliko declaration includes merely a one-line sentence generally
stating that ISEC (allegedly) owed plaintiffs a duty not to cover up the waste lines.
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 2. Degree of Certainty Plaintiffs Suffered Harm

Here, the record shows the trial court granted the summary adjudication motions

of RSM2 and A.O. Reed concerning plaintiffs' claims for damages related to fear of

future injury. The court did not rule on ISEC's similar summary adjudication motion

because it granted summary judgment for ISEC.

Nonetheless, the court's ruling denying the motions for summary judgment of

RSM2 and A.O. Reed states plaintiffs proffered sufficient evidence to show they suffered

injury from exposure to the toxic substances. As such, I conclude this factor may favor

the plaintiffs.

3. Connection Between ISEC's Conduct and the Injury Suffered

This factor, in my view, may favor ISEC. As noted, ISEC was not responsible for

the uncapped waste lines in the Klemke lab, as plaintiffs readily admit as follows in their

omnibus opposition to the summary judgment motions (omnibus opposition):

"This is a negligence case where the six individual [p]laintiffs suffered physical

injuries as a result of the ingestion of toxic substances that entered their lab through

uncapped glass laboratory waste lines. . . . When, in October 2008, not one, but two,

uncapped laboratory waste lines were located and capped the [p]laintiffs' physical

symptoms ceased. . . .

"Interestingly, the only [d]efendant arguing against liability ('not my scope of

work') is A.O. Reed—the plumbing subcontractor who admits to being responsible for all

plumbing work during a 2004 remodel of the space where the uncapped lines were found.

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There is substantial evidence that contravenes A.O. Reed's denial of liability. The

evidence includes its subcontract with RSM2 (the general contractor) where its scope of

work specifically includes waste lines. It also includes the plans that show the 'point of

removal' for plumbing lines at the very location where the first uncapped line was found

in 2008 hidden behind casework [i.e., cabinetry] installed as part of the renovation.

". . .The [plaintiffs'] experts' investigation has established a causal connection

between the uncapped drain lines and the [p]laintiffs' physical injuries. Toxic substances

were the source of the odor. The open lines hidden by cabinetry installed in 2004 vented

toxic substances into the [Klemke lab] where [p]laintiffs worked for two and a half

years." (Italics added.)

In discussing A.O. Reed's role in the remodel, the omnibus opposition further

notes that A.O. Reed's subcontract with RSM2 provides that the "'[s]cope of [w]ork'" of

the plumber A.O. Reed included: "[l]ab vacuum piping," "[g]as piping," "[w]aste and

vent piping," "[i]ndustrial hot and cold water piping," "[i]nsulation" and "[d]emolition."

(Italics added.) In addition, the omnibus opposition refers to the testimony of the project

manager of A.O. Reed who admitted it was "his company's responsibility to do the 2004

[r]enovation demolition and plumbing" and it was "their responsibility to cap the pipes

that were removed to the point of removal." The principal of RSM2 further testified "that

all plumbing work was the responsibility of A.O. Reed and there was no one else on the

site qualified to cap the acid waste line pipes."

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 In specifically discussing the issue of duty in the omnibus opposition, plaintiffs

noted that "[e]veryone agrees that A.O. Reed was responsible for all plumbing work on

the project," repeated that the plumber's scope of work specifically included " '[w]aste

and vent piping'" and "'[d]emolition'" and finally concluded that it was A.O. Reed's "job"

to cap the waste lines since "[t]hey were the plumbers." In my view, the required "close"

connection (see Rowland, supra, 69 Cal.2d at p. 113) may be lacking between ISEC's

conduct in installing the cabinetry and the injury plaintiffs suffered as a result of the

conduct of others responsible for the plumbing in the Klemke lab.

4. Moral Blame

"Moral blame has been applied to describe a defendant's culpability in terms of the

defendant's state of mind and the inherently harmful nature of the defendant's acts. . . .

[C]ourts have required a higher degree of moral culpability such as where the defendant

(1) intended or planned the harmful result [citation]; (2) had actual or constructive

knowledge of the harmful consequences of [the defendant's] behavior [citation]; (3) acted

in bad faith or with a reckless indifference to the results of [the defendant's] conduct

[citations]; or (4) engaged in inherently harmful acts [citation]." (Adams v. City of

Fremont (1998) 68 Cal.App.4th 243, 270.)

I conclude this factor may favor ISEC for the same reason as the preceding factor.

ISEC merely installed cabinetry in the Klemke lab pursuant to its contract with UCSD.

Although there is no evidence in the current record that ISEC had actual or constructive

knowledge that it was placing its cabinetry over uncapped lines that it was not

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responsible for, on remand to the extent this becomes an issue the plaintiffs will have the

opportunity to proffer any such evidence (or any other evidence) they believe is relevant

to this analysis.

5. Prevention of Future Harm

I conclude that attaching potential liability to ISEC's conduct likely may not

prevent future harm, inasmuch as the current record shows ISEC had absolutely no

control over the waste lines, including capping such lines. Thus, in my view, this factor

may also tend to favor ISEC.

6. Burden on ISEC and Consequences to the Community

Based on the current record, in my view the burden on ISEC and the

consequences to the community of imposing a duty in this case may be unacceptable. A

"person may not ordinarily recover in tort for the breach of duties that merely restate

contractual obligations. Instead, '"[c]ourts will generally enforce the breach of a

contractual promise through contract law, except when the actions that constitute the

breach violate a social policy that merits the imposition of tort remedies."' [Citations.]"

(Aas v. Superior Court (2000) 24 Cal.4th 627, 643, superseded by statute on another

ground as stated in Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1079;

see also Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 989 [noting

that conduct constituting a breach of contract is tortious only when it also violates a duty

independent of the contract arising from principles of tort law]; see also Freeman &

Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 95 [reiterating the "important

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differences between contract and tort theories of recovery" and noting "that limiting

contract breach damages to those within the reasonably foreseeable contemplation of the

parties when the contract was formed 'serves to encourage contractual relations and

commercial activity by enabling parties to estimate in advance the financial risks of their

enterprise' "].)

Imposing a duty on ISEC in this case may saddle it "with a burden of uncertain but

potentially very large scope. One of the consequences to the community of such an

extension is the cost of insuring against liability of unknown but potentially massive

dimension." (See Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 822 [refusing

to impose a duty on an employer for injuries sustained by employee's surviving spouse

who sued employer for negligence alleging injury by secondary exposure to toxic vapors

and chemicals allegedly carried home by employee on his clothes and person].)

In sum, when applied to the current record, it appears the Rowland factors may

support the conclusion that ISEC would not owe plaintiffs a duty sounding in tort.

However, because the duty issue was neither raised nor briefed below, I concur with the

majority that the matter should be remanded to allow the parties to brief it (and any

others) on a full and complete record before it may be the basis of summary judgment.

BENKE, Acting P. J.

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