CALDERON v. SI MAC (1994)

Martin Calderon appeals a summary judgment in favor of defendants Escondido Roof Truss Company, Inc., and SI MAC Construction Company (together Escondido) on Calderon's complaint for negligence and strict liability.   Calderon contends the court erred in granting summary judgment because (1) a trier of fact could reasonably find from the available evidence Calderon's fall was caused by a defectively installed fill, and (2) the deposition testimony of Calderon concerning standing or leaning on trusses was in no way dispositive of Escondido's motion.   We conclude summary judgment was properly granted.

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 1990, Calderon and Elias Jauregui were installing roof trusses manufactured by Escondido.   Calderon was attaching the trusses to the walls of the house with metal brackets called “A–35's.”   To attach the A–35's to the exterior of the structure, Calderon leaned out from the house and drove nails back into the wall.   Calderon fell from the house and was injured.   He does not remember what caused him to fall.   Jauregui was working on the other side of the structure and did not witness the fall.

On May 9, 1991, Calderon filed a negligence and strict liability action against Escondido in superior court.   The complaint alleged a structural defect in the truss weakened the truss so it failed to support Calderon's weight as a normal truss would.

On December 20, 1991, Escondido took Calderon's deposition during which Calderon stated he was not standing or leaning on the truss when he fell.   Based on Calderon's admission he did not put any weight against the truss and the lack of evidence proving any defect in the truss, Escondido moved for summary judgment on April 16, 1992.

In opposition to the motion, on April 23, 1992, Calderon presented the deposition of Jauregui and the declarations of contractors Keith Jones and William Craig.   Jauregui stated after Calderon fell, a two-by-four filling (fill) was missing from where Calderon was working.   Jauregui saw the missing fill within three feet of where Calderon landed.   Keith Jones stated framers customarily lean against fills which support them when connecting trusses to walls.   William Craig, referring to five photographs taken during an inspection of the truss, stated he observed a number of fills improperly fastened to the truss on which Calderon had been working when he fell.   Craig asserted an improperly installed brace could dislodge if a person leaned against it.

On May 8, 1992, the trial court ruled tentatively in favor of Escondido's motion for summary judgment as follows:

“Defendant's motion for summary judgment is granted.   Defendant has demonstrated that plaintiff was not standing on or putting any weight on the roof truss prior to the accident.   Plaintiff has no evidence that the truss could have caused the accident if plaintiff was not standing upon it or putting weight on it.   Cross-defendant Si–Mac's joinder is also granted.   Defendant's request for fees pursuant to CCP128.5 is denied.   This disposes of the entire action.”

On May 15, 1992, at the hearing on the motion, Calderon presented a supplemental declaration.   Although the declaration is stamped as being filed on April 15, 1992, Calderon signed and dated the declaration May 11, 1992.   Both the reporter's transcript and the minutes of the trial court show the court accepted the supplemental declaration on May 15, 1992, and not on April 15.   Therefore, this court concludes the supplemental declaration was improperly stamped as filed on April 15.   Calderon made the declaration on May 11, 1992, three days after the trial court's tentative ruling in favor of Escondido.

The declaration distinguished a truss from a fill.   Perpendicular pieces of wood known as “fills” attached to the trusses provide support for the stucco used in the walls.   Attempting to clarify his deposition testimony, Calderon stated he never leans on the truss, but customarily leans on fills while installing A–35's.   Calderon argued his declaration, supplemented by Jauregui's deposition and the declarations of the two contractors, provided sufficient circumstantial evidence to deny the motion.

The court granted Escondido's motion for summary judgment.

DISCUSSION

I

Calderon contends the court should have denied Escondido's motion for summary judgment because a trier of fact could reasonably find from the available evidence his fall was caused by a defectively installed fill.

 The purposes and standards for summary judgment are well established.   The purpose of the summary procedure is to penetrate through adept pleading to ascertain, by means of affidavits, the presence or absence of triable issues of fact.  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   The trial court determines whether triable issues of fact exist by examining the affidavits and evidence, including any reasonable inferences which may be drawn from the facts.   (People v. Rath Packing Co. (1974) 44 Cal.App.3d 56, 61–64, 118 Cal.Rptr. 438.)   In examining the sufficiency of the affidavits, those of the moving party are strictly construed and those of the opposing party are liberally construed.   Any doubts as to the propriety of granting the motion are resolved in favor of the party opposing the motion.  (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

 When the motion for summary judgment is supported by affidavits or declarations sufficient to sustain the motion, however, the burden shifts to the party opposing the motion to show that triable issues of fact exist.   (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)   A party may not avoid summary judgment based on mere speculation and conjecture (Pena v. W.H. Douthitt Steel & Supply Co. (1986) 179 Cal.App.3d 924, 931, 225 Cal.Rptr. 76), but instead must produce admissible evidence raising a triable issue of fact.  (Craig Corp. v. County of Los Angeles (1975) 51 Cal.App.3d 909, 915, 124 Cal.Rptr. 621.)

“Interrogatories and depositions may be used in support of or in opposition to a motion for summary judgment.   Admissions contained in depositions and interrogatories are admissible in evidence to establish any material fact.”   (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380, 121 Cal.Rptr. 768, citations omitted.)

Recently, the First District, Division One, discussed this doctrine:

“In reviewing motions for summary judgment, the courts have long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive.  (Bauman, California Summary Judgment:  A Search for a Standard (1963) 10 UCLA L.Rev. 347.)   In D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [112 Cal.Rptr. 786, 520 P.2d 10], the Supreme Court first approved the rule that the declaration of facts by affidavit contrary to deposition testimony does not constitute ‘substantial evidence of the existence of a triable issue of fact.’   It explained, ‘As the law recognizes in other contexts (see Evid.Code, §§ 1220–1230) admissions against interest have a very high credibility value․  Accordingly, when such an admission becomes relevant to the determination, in motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.’   (Id. at p. 22 [112 Cal.Rptr. 786, 520 P.2d 10].)   The rule has been followed in a line of subsequent decisions.  (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382 [121 Cal.Rptr. 768];  Gray v. Reeves (1977) 76 Cal.App.3d 567, 573–574 [142 Cal.Rptr. 716];  Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 161 [144 Cal.Rptr. 794];  Girard v. Ball (1981) 125 Cal.App.3d 772, 781 [178 Cal.Rptr. 406];  Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 849 [236 Cal.Rptr. 696].)”  (Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 800–801, 245 Cal.Rptr. 44.)

 On appeal from an order granting summary judgment, the appellate court examines the facts presented to the trial court and independently determines their effect as a matter of law in light of the above principles.  (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)

 Here, the issue is whether Calderon admitted he did not lean on the fill when he stated he did not lean on the truss.   A truss is a triangular wooden frame which supports the roof of a house.   Fills are perpendicular pieces of wood attached to the truss.   In his deposition, Calderon stated he never leaned on the truss.   Later, after the trial court communicated its tentative ruling granting summary judgment, Calderon submitted a declaration stating, although he did not lean on the truss, he customarily leans on the fills.   Even in the supplemental declaration, however, Calderon stated he has no memory of the fall or what he was doing when it occurred.

Calderon argues his statement he did not lean on the truss is not dispositive of whether he leaned on the fills.   He asserts framers make an important distinction between the truss and the fills;  because this distinction is so important, he did not consider the fills when asked if he leaned on the truss.   Therefore, Calderon contends his later declaration stating he leaned on the fills while working does not contradict his earlier testimony.   This argument is not supported by the record.

Calderon's deposition testimony indicated he considered the fills to be part of the truss.   When Jauregui saw Calderon immediately after the fall, Jauregui stated he also saw one of the fills lying on the ground beside Calderon.   Apparently, the fill had also fallen and landed near Calderon.   In his deposition, however, Calderon testified he had fallen with the truss rather than the fill:  “I fell outside with the truss and everything.   I fell outside the house where the truss is.”   This statement clearly shows Calderon considered the fill as part of the truss.

Further, when asked whether he put up and secured the braces (fills), Calderon responded, “I did not install that.   That all comes like that.”   He did not clarify the fills are not part of the truss.   He never used the term “fill” or “brace.”   Significantly, Calderon did not distinguish fills from trusses until his declaration, made after the tentative ruling in favor of Escondido.

When asked how the roof truss might have caused his fall, Calderon responded he did not know, but his cousin told him he had fallen because the truss was broken:

“He only said that [the truss] was broken and that that was the reason—that is why I was probably about to fall when I arrived there, because there was too much weight.   Not me, the truss.”

In his declaration, Jauregui distinguished between a fill and a truss.   He stated he had found a fill lying beside Calderon.   Jauregui was aware of the difference between the fills and the truss, therefore, when he told Calderon he had fallen because the truss was broken.   That Jauregui did not specify Calderon fell because the fill was broken, indicates Jauregui considered the fill to be part of the truss.

Finally, the description of the truss given by Calderon's attorney suggests fills are part of the truss.   At oral argument on the motion for summary judgment, counsel for Calderon stated:

“The actual truss that was used on the end of this building where the Plaintiff was injured was actually a center type truss that had been converted for an end truss for some reason by putting in the fills․”

Only end trusses have fills attached to them.   A center truss becomes an end truss when the fills are installed.   This statement concedes the fills are an essential part of an end truss, not a separate component of the roof structure.

Fills are attached to the truss by the manufacturer before the truss arrives at the construction site.   Framers do not install the fills, nor do they work with fills independently of the truss at any time.   Calderon's deposition testimony indicated both he and Juaregui considered fills to be part of the truss.   Thus, Calderon did not intend to distinguish the fills from the truss in his deposition testimony.   When Calderon stated he did not lean on the truss, he admitted he did not lean on or put his weight against any part of the truss, including the fills.

II

 Generally, admissions against interest are very probative in determining whether triable issues of material fact exist.  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 520 P.2d 10, criticized on another point in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944, 154 Cal.Rptr. 503, 593 P.2d 200).   However, summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.  (Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546, 279 Cal.Rptr. 51.)

 Here, Calderon expressly stated he did not lean on the truss.   Calderon considered the fills to be a part of the truss.   If he did not lean on the fill, its failure could not have caused his fall.   He failed to contradict his admissions with other credible evidence.   Given Calderon's admission he did not lean on the fill, the speculation and opinions of the experts do not provide sufficient evidence for a trier of fact to reasonably conclude Calderon's fall was caused by a defectively installed fill.

 Regardless of the problem of identifying a fill as a separate part of the truss, Calderon failed to present any evidence the particular fill which fell with him was improperly installed.   The photographs in the record merely show the fill located at the point where the accident occurred was reinstalled, not defective.   Photographs of other improperly installed fills, and expert testimony asserting such fills could cause a fall, simply do not provide sufficient evidence for a trier of fact to reasonably conclude Calderon's fall was caused by a defectively installed fill.

DISPOSITION

The judgment is affirmed.

I respectfully dissent.   This is a summary judgment motion and the issue is whether, considering evidence most favorable to plaintiff, there is a disputed material issue of fact.   I believe the majority has omitted many material facts and, as a result, misapplied the principle stated in Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 800–801, 245 Cal.Rptr. 44.   I set forth the uncontradicted relevant facts.

There is no question Calderon fell off the end of the roof at a point where he was to lean over and install metal “A–35's” below the roofline.   This entailed his hanging over one end of the roof with one-half his body inside and the other half outside the roofline to nail the fastenings.

Jauregui was working on the roof but not watching Calderon when he heard a crash “like lumber breaking, but stripping or something.”  “It was just a crash, crash and then a flop.”   He immediately noticed Calderon was missing and then looked over the end of the building where Calderon lay unconscious with a vertical fill missing at the point of fall and lying on the ground near Calderon's unconscious body.   An inspection sometime after Calderon's fall shows a vertical fill piece had been reinstalled over the top of a bent nail plate which was now unusable that had previously been installed at the point where he fell.   The nail plate exhibited signs of being bent back and forth as if it had been pulled out and then bent back.   It had been resecured by nails driven into the edge of the two-by-four.   Photos of this site show a vertical line of marks which, upon magnification, reveals it is a line of small holes where the nail plate would have been originally attached and forcefully pulled out.   This is obvious from viewing photograph no. 1, exhibit B and depictions of that same site in photographs nos. 60, 61 and 63 which were presented to the trial court.

Craig, a contractor, declared under penalty of perjury that vertical fills are attached to a truss when it is placed at the end of a roof.   He describes the nail plate as being driven into the wood by machine to bridge the junction where the fill attaches to the truss.   He declared when nail plates are properly pressed into the wood they create a strong joint capable of supporting considerable lateral force.   In Craig's opinion, a properly installed fill could not be dislodged even by persons throwing the weight of their body against it.  (Calderon only weighed 134 pounds).   On the other hand, Craig stated improperly installed fills would dislodge when a person leans against it, therefore the proper application of nail plates to a fill is essential to its structural strength.   Photograph no. 1, exhibit B, clearly shows that the fill Craig described has been reinstalled over the nail plate after it had been detached.

Calderon declared he customarily leans on the vertical “fill” when leaning out beyond the side of the house to nail the metal bands that connect the bottom of the truss to the top of the wall.

By deposition, Craig and Jones (another licensed general contractor specializing in framing and installing truss roof structures for more than 15 years) both state it is customary for a framer to lean outside the envelope of the house when hammering nails to secure the A–35 connectors as Calderon was doing, and to use the vertical braces (fills) for support.   Both Jones and Craig state proper installation of nail plates provide more than adequate strength to support the weight of the framers who rely routinely on them for balance and support.  (The issue was of some concern to the trial court who asked whether a truss was required to be manufactured to stop a fall.   At least for the purpose of avoiding summary judgment, that question was answered in the affirmative by the two contractors.)

The majority errs by analyzing the issue as if the standard was whether there was sufficient evidence to support the court's finding Calderon did not ever contact the “fill” which gave way, rather than by assessing whether there is evidence from which a contrary finding can be made.   Here, there is ample circumstantial evidence the fill was improperly installed and was dislodged by the weight of Calderon's body either leaning or falling against it, causing it to fall to the ground along with Calderon.

The trial court apparently relied on defendant's reply to Calderon's points and authorities which contends the court should disregard Calderon's post-deposition declaration in which Calderon explains he identifies “fill” as a brace attached to, but separate from the triangular wooden frame which is called a truss.¹  The record shows, and it is common knowledge, that triangular wooden frames without fills are trusses and that fills are braces attached to trusses when they are modified to be placed at the end of a roof.   Calderon made it clear he does lean on fills as is customary in the industry by framers who lean beyond the side of the house to nail the metal bands connecting the bottom of the truss to the top of the wall.  (As stated by Jones and Craig.)

The flaw in the defendant's position is that on summary judgment the court is not free to disregard Calderon's declaration he did not consider the “fill ” to be the thrust of the questioning when he was asked at deposition whether he leaned or stood on the truss.   His explanation that he customarily leans on the “fill” in end trusses when nailing below the roofline, at minimum, raises a triable issue of fact whether it was his weight which caused the “fill” to dislodge with a sound of wood “stripping” and fall beside him.   The credibility of any potential conflict is for the trier of fact, not summary judgment.

On this record where the sound of wood “stripping” immediately preceded the thud of Calderon's body, the fill at the site where Calderon fell was missing and one was lying on the ground beside his body, and one had been reinstalled with evidence of the base plate having been bent and pulled loose, there is at minimum a triable issue of fact whether the fill was dislodged because it did not bear the weight of Calderon's body.²

Without acknowledging the unequivocal circumstantial evidence that the fill was dislodged by Calderon's weight causing his fall, the majority relies solely on its conclusion Calderon's declaration may be disregarded because it repudiates his contrary deposition admission.   The majority errs in two regards:  First, by concluding the deposition testimony and the declaration are inherently contradictory, and second, by ignoring the extensive overwhelming additional evidence Calderon must have placed his weight on the “fill” which otherwise could not have “ripped” loose and fallen with him.

In D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21, 112 Cal.Rptr. 786, 520 P.2d 10, the Supreme Court approved the legal principle announced in King v. Andersen (1966) 242 Cal.App.2d 606, 610, 51 Cal.Rptr. 561, that “[w]here ․ there is a clear and unequivocal admission by the plaintiff, himself, in his deposition ․ we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.”   The majority correctly notes that later cases have construed D'Amico's holding to preclude summary judgment where admissions against interest are not clearly unequivocal and later statements are explanatory rather than outright repudiations.   Most significantly to our case is the rule of application stated by the majority in Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546, 279 Cal.Rptr. 51, that tacit, fragmentary and equivocal concessions will not support summary judgment when there is contradictory credible evidence.

In People ex rel. Dept. of Transportation v. Ad Way Signs, Inc. (1993) 14 Cal.App.4th 187, 17 Cal.Rptr.2d 496, the court reversed a summary judgment entered after a sign company “admitted” by way of answers to an interrogatory, that its permit had been canceled.   Although the “admission” was facially unequivocal, the court noted there was other credible evidence supporting Ad Way's position the permit had not been canceled, and thus the D'Amico principle could not properly support a summary judgment.   It is noteworthy the court of appeal recognized there was additional credible evidence in support of a finding of cancellation consistent with Ad Way's “admission.”   In the present case, there is no corroborative evidence even inferring Calderon did not fall because the “fill” failed to sustain his weight.   Here, there is considerable evidence other than Calderon's declaration bearing on the issue, all of which strongly suggests Calderon must have dislodged the “fill” by his weight while leaning or falling.   His declaration is explanatory, not an unequivocal repudiation of an unambiguous admission and the superior court was not free to disregard it.

The majority strains to interpret Calderon's deposition referring to a truss as conceding he did not “lean on the fill,” and then states the “speculation and opinions of the experts” is not sufficient to counter that “admission.”   The majority inexplicably ignores the percipient witness (Jauregui) who declared he heard the sound of wood “stripping” from Calderon's location followed by the thud of his body hitting the cement;  that he immediately noticed the “fill” was missing from the site of the fall and it was lying on the ground beside Calderon.   Further, it ignores the eyewitness testimony of the contractors who later examined the site of the fall and found a “fill” had been reinstalled over the metal fastening plate which had been bent over to permit the “fill” to be placed on top of it and nailed.   The contractors' observations were documented by photographs which graphically confirm these eyewitness observations and plainly show a row of nail holes from which the upper portion of the now useless metal fastener had been forcibly dislodged at the accident site.   To dismiss this objective, eyewitness evidence as “speculative” and “opinion” is unjustifiable.   Further, the contractors' declarations that framers customarily support themselves against the fills to support them while leaning over the edge of a roof, and Calderon's declaration that he does so routinely, are not “speculation.”   They relate facts which are not contradicted.

In face of the overwhelming evidence Calderon's fall occurred when the “fill” gave way, and his stated lack of recall as to how the accident happened, it was error to grant summary judgment.

FOOTNOTES

1.   Presumably, that is why these added braces are called “fills.”

2.   In the majority opinion, there is a discussion about whether Jauregui and Calderon's attorney believed “fills” to be part of a truss.   His beliefs are irrelevant.

TODD, Associate Justice.

BENKE, J., concurs.