Preview
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NNN NY NY NNN NY | | | |= | = = as = a
oN BO TO BF W NY =| OD DOD ODN BD OT KF WN =
Darren W. Epps - ie 175207
EPPS & GILROY
2650 Industrial Parkwo #100
ae Maria, CA 934 455
TEL: (805 ) 544-4875
FAX: (805) 544-4877
iene for Defendant-in-Intervention, GANDOLA’S LANDSCAPING & LAWN CARE,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF KERN
ZURICH AMERICAN INSURANCE
COMPANY
Plaintiff,
vs.
PAVLETICH ELECTRIC &
COMMUNICATIONS, INC., et al.,
Defendants.
HUGO GOMEZ,
Plaintiff-in-Intervention,
v.
PAVLETICH ELECTRIC &
COMMUNICATIONS, INC., et al.,
Defendants-in-Intervention.
Case No. BCV-20-100473
POeer STATEMENT OF
DISPUTED MATERIAL FACTS IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
Defendant-in-Intervention GANDOLA’S LANDSCAPING & LAWN CARE, INC.
(Gandola’s Landscaping”) provides the following Separate Statement of Undisputed
Material Facts in support of its Motion for Summary Judgment pursuant to Code of
Civil Procedure section 437c(b)(1) and California Rules of Court, Rule 3.1350.
Separate Statement of Undisputed Material Facts in Support of Motion for Summary JudgmentoO OWN BD OH FF WN =
Plaintiff-in-Intervention Cannot Meet His Burden of Proof to Show a Triable Issue of
Material Fact on His Only Causes of Action for 1) General Negligence or 2) Premises
ia
Liability Against Moving Defendant-in-Intervention Gando
s Landscaping
UMF# | Moving Party’s Undisputed Material Opposing Party’s Response
Facts and Supporting Evidence: and Supporting Evidence:
1 This matter involves a job site injury
where plaintiff-in-intervention Hugo
Gomez (“GOMEZ”) tripped and fell over
a vertical pipe sticking out of the ground
on February 21, 2018 at 9:00 a.m. (the
“INCIDENT").
Complaint-in-Intervention; Depo of Hugo
Gomez @4:22-24, 43:17-44:7.
2 The INCIDENT occurred at the
Bakersfield Transitional Care Facility
located at 5151 Knudsen Drive in
Bakersfield during construction of the
facility (the “PROJECT”).
Depo of Angel Muro @12:24-13:9; Depo
of Gomez @43:17-44:7.
3 ARCO Construction was the general
contractor on the PROJECT.
Depo of Stephen Boyd @10:18-11:6,
43:13-22.
4 GOMEZ was working in the course and
scope of his employment with
subcontractor Kern Glass on the
PROJECT at the time of the INCIDENT.
Depo of Gomez @9:10-17, 37:8-23,
45:1-22.
Separate Statement of Undisputed Material Facts in Support of Motion for Summary JudgmentoOo OD ON BD OD FF WwW NY
UMF#
Facts and Supporting Evidence: Supporting Evidence:
Moving Party’s Undisputed Material Opposing Party’s Response
an
5
Moving defendant-in-intervention
Gandola’s Landscaping & Lawn Care,
Inc. (“GANDOLAS”) was a landscaping
subcontractor on the PROJECT.
Subcontract; Depo of Jason Gandola
@12:16-13-4.
This lawsuit was initiated on 2/14/20 by
Zurich American Insurance Company
(“ZURICH”) seeking recovery of workers
compensation benefits paid to GOMEZ
as a result of the INCIDENT. ZURICH
has not named GANDOLAS as a
defendant in its current Complaint.
Zurich Complaint and First Amended
Complaint.
GOMEZ filed his Complaint-in-
Intervention on May 18, 2021, more than
15 months after the statute of limitations
expired. GANDOLAS was not named as
an original defendant-in-intervention by
GOMEZ, but was first brought into this
action when it was named as Doe 5 per
Amendment filed January 28, 2022. The
Complaint-in-Intervention contains two
causes of action for 1) General
Negligence and 2) Premises Liability.
Complaint-in-Intervention; Doe
Amendment #5.
Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
3oO ON BOD OD BF WN
UMF# | Moving Party’s Undisputed Material
Facts and Supporting Evidence:
iosing Party’s Response
Op
and Supporting Evidence:
The pipe over which GOMEZ tripped in
the INCIDENT was a 15 inch metal pipe
used as electrical conduit (‘the PIPE”
Depo of Boyd @17:2-21, 19:21-20:5,
25:11-26:2; Depo of Muro @ 10:16-24,
12:24-13:23, 14:5-16:25, 17:17-18:21,
21:11-24; Depo of Gomez @65:13-15
with Ex. 1 photograph.
GANDOLAS did not install the subject
PIPE.
Depo of Jason Gandola @ 12:16-13:4,
19:24-20:11 and Ex. 3 photo.
10
1
The PIPE was not connected to any
underground landscaping system and was
pulled from the ground within 10 minutes
of the INCIDENT.
Depo of Boyd @ 17:2-21, 19:21-20:5,
32:6-24 with Ex. 4 photo.
GOMEZ’s employer conducted an
investigation into the INCIDENT and
found unrelated PCV sprinkler pipe on the
other side of the breezeway from where
the INCIDENT occurred which was
different and distinguishable from the
subject metal conduit PIPE which had
yellow string tied to it. The PVC pipe did
not look similar to the subject PIPE in any
way.
Depo of Boyd @72:6-74:1 and Ex. 4
photo.
4
Separate Statement of Undisputed Material Facts in Support of Motion for Summary JudgmentOo OD ON WO OH FF WHY =
oOo ON OB OH KF WN
NN NY NY NY NY NY NY N
oN BO oO FF WN = CO
UMF# | Moving Party’s Undisputed Material Opposing Party’s Response
an
Facts and Supporting Evidence: Supporting Evidence:
12
Plaintiff-in-Intervention Hugo Gomez does
not know who installed the PIPE.
Depo of Gomez @ 52:9-13
13
Plaintiffs co-workers, Alberto Ramirez
Alvarez and Angel Muro, were present
when the INCIDENT occurred and don’t
know who installed the PIPE.
Depo of Alvarez @ 15:18-17:5, 21:2-
25; Depo of Muro @14:5-21, 18:3-21,
21:11-24
Despite significant discovery, GOMEZ is
still aware of no facts, witnesses or
evidence that GANDOLAS installed the
PIPE.
Gomez Responses to Gandola’s Requests
for Admission #1, 3 & 5 & corresponding
Responses to Form Interrogatory 17.1.
jee
Despite significant discovery, GOMEZ is
still aware of no facts, witnesses or
evidence that GANDOLAS’s conduct was
a substantial factor in causing the
INCIDENT.
Gomez Responses to Gandola’s Request
for Admission #6 & corresponding
Response fo Form Interrogatory 17.1.
Dated: January 31, 2023 EPPS & GILROY LLP
>
Bye, le coer
Darren W. Epps
Attorneys for Defendant-in-Intervention,
GANDOLA’S LANDSCAPING & LAWN
CARE, INC.
Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
5oD ON OD HD BRB WN =
PROOF OF SERVICE
lam employed in the County of Santa Barbara, California, am over the age of 18 years, am
not a party to this action, and my business address is: EPPS & GILROY LLP 2650 Industrial Parkway,
#100, Santa Maria, CA 93455.
On February 1, 2023, | served the following documents: SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT, on
the interested parties in this action as follows:
DX]
[]
SEE SERVICE LIST
BY EMAIL OR ELECTRONIC TRANSMISSION. Based on a Court order or an agreement of
the parties to accept service by email or electronic transmission, | caused the document(s) to
be sent from email address mdeleon@eallp.com to the person at the email address listed
above. | did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
BY MAIL — | placed the original, or a true and correct copy thereof, in a separate sealed
envelope for each addressee above, with sufficient postage paid, in the United States mail in
this County on this date, following my employer's business practice for collection and
processing of correspondence for mailing with the United States Postal Service.
OVERNIGHT DELIVERY — This document was sent via overnight courier to the address listed
above.
[XX] STATE — | declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on February 1, 2023, at Santa Maria, California.
Marissa DeLeonoD OWN OD HD BF WN =
Service List
Ernest A. Vargas, Esq.
LAW OFFICES OF VARGAS & VARGAS Attorney for Plaintiff
301 North Lake Avenue
Suite 120
Pasadena, CA 91101
T: 626-440-1111
F: 626-440-9456
E: ernest@vargasandvargas.com
Steve Pabros, Esq.
Zsuzsanna Veres, Esq. Attorney for: Pavletich Electric &
O'BRIEN LAW, P.C. Communications, INC
755 Baywood Drive, Suite 185
Petaluma, CA 94954
T: 707-789-6500
F: 707-789-6520
E:
steve@pobrienlaw.com
suzie@pobrienlaw.com
tania@pobrienlaw.com
Patrick Quigley, Esq. Attorney for Zurich American International
Canon Young, Esq Company
MORALES, FIERRO & REEVES
2151 Salvio St. #280
Concord, CA 94520
T: 925-288-1776
E: cyoung@mfrlegal.com
paquigley@mfrlegal.com
sbird@mfrlegal.com
Susan H. Hobson Attorney for J.L Plank, INC., dba CEN-CAL
Law Office of Patrick J. Campbell Construction
915 Highland Pointe Drive, Suite 250
Roseville, CA 95678
shobson@unitedfireqroup.com
ckort@unitedfireqroup.com
mliberato@unitedfirearoup.com
Peter Hughes, Esq. Attorney for Rios Design Studio, LLC
Marty B. Ready, Esq.
401 West A. Street, Suite 1900
San Diego, CA 92101
peter.hughes@wilsonelser.com
marty.ready@wilsonelser.com
irene.gonzalez@wilsonelser.com
Preview
oO OWN BO OH RF DWN = NNN NY NY NNN NY | | | |= | = = as = a oN BO TO BF W NY =| OD DOD ODN BD OT KF WN = Darren W. Epps - ie 175207 EPPS & GILROY 2650 Industrial Parkwo #100 ae Maria, CA 934 455 TEL: (805 ) 544-4875 FAX: (805) 544-4877 iene for Defendant-in-Intervention, GANDOLA’S LANDSCAPING & LAWN CARE, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN ZURICH AMERICAN INSURANCE COMPANY Plaintiff, vs. PAVLETICH ELECTRIC & COMMUNICATIONS, INC., et al., Defendants. HUGO GOMEZ, Plaintiff-in-Intervention, v. PAVLETICH ELECTRIC & COMMUNICATIONS, INC., et al., Defendants-in-Intervention. Case No. BCV-20-100473 POeer STATEMENT OF DISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendant-in-Intervention GANDOLA’S LANDSCAPING & LAWN CARE, INC. (Gandola’s Landscaping”) provides the following Separate Statement of Undisputed Material Facts in support of its Motion for Summary Judgment pursuant to Code of Civil Procedure section 437c(b)(1) and California Rules of Court, Rule 3.1350. Separate Statement of Undisputed Material Facts in Support of Motion for Summary JudgmentoO OWN BD OH FF WN = Plaintiff-in-Intervention Cannot Meet His Burden of Proof to Show a Triable Issue of Material Fact on His Only Causes of Action for 1) General Negligence or 2) Premises ia Liability Against Moving Defendant-in-Intervention Gando s Landscaping UMF# | Moving Party’s Undisputed Material Opposing Party’s Response Facts and Supporting Evidence: and Supporting Evidence: 1 This matter involves a job site injury where plaintiff-in-intervention Hugo Gomez (“GOMEZ”) tripped and fell over a vertical pipe sticking out of the ground on February 21, 2018 at 9:00 a.m. (the “INCIDENT"). Complaint-in-Intervention; Depo of Hugo Gomez @4:22-24, 43:17-44:7. 2 The INCIDENT occurred at the Bakersfield Transitional Care Facility located at 5151 Knudsen Drive in Bakersfield during construction of the facility (the “PROJECT”). Depo of Angel Muro @12:24-13:9; Depo of Gomez @43:17-44:7. 3 ARCO Construction was the general contractor on the PROJECT. Depo of Stephen Boyd @10:18-11:6, 43:13-22. 4 GOMEZ was working in the course and scope of his employment with subcontractor Kern Glass on the PROJECT at the time of the INCIDENT. Depo of Gomez @9:10-17, 37:8-23, 45:1-22. Separate Statement of Undisputed Material Facts in Support of Motion for Summary JudgmentoOo OD ON BD OD FF WwW NY UMF# Facts and Supporting Evidence: Supporting Evidence: Moving Party’s Undisputed Material Opposing Party’s Response an 5 Moving defendant-in-intervention Gandola’s Landscaping & Lawn Care, Inc. (“GANDOLAS”) was a landscaping subcontractor on the PROJECT. Subcontract; Depo of Jason Gandola @12:16-13-4. This lawsuit was initiated on 2/14/20 by Zurich American Insurance Company (“ZURICH”) seeking recovery of workers compensation benefits paid to GOMEZ as a result of the INCIDENT. ZURICH has not named GANDOLAS as a defendant in its current Complaint. Zurich Complaint and First Amended Complaint. GOMEZ filed his Complaint-in- Intervention on May 18, 2021, more than 15 months after the statute of limitations expired. GANDOLAS was not named as an original defendant-in-intervention by GOMEZ, but was first brought into this action when it was named as Doe 5 per Amendment filed January 28, 2022. The Complaint-in-Intervention contains two causes of action for 1) General Negligence and 2) Premises Liability. Complaint-in-Intervention; Doe Amendment #5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment 3oO ON BOD OD BF WN UMF# | Moving Party’s Undisputed Material Facts and Supporting Evidence: iosing Party’s Response Op and Supporting Evidence: The pipe over which GOMEZ tripped in the INCIDENT was a 15 inch metal pipe used as electrical conduit (‘the PIPE” Depo of Boyd @17:2-21, 19:21-20:5, 25:11-26:2; Depo of Muro @ 10:16-24, 12:24-13:23, 14:5-16:25, 17:17-18:21, 21:11-24; Depo of Gomez @65:13-15 with Ex. 1 photograph. GANDOLAS did not install the subject PIPE. Depo of Jason Gandola @ 12:16-13:4, 19:24-20:11 and Ex. 3 photo. 10 1 The PIPE was not connected to any underground landscaping system and was pulled from the ground within 10 minutes of the INCIDENT. Depo of Boyd @ 17:2-21, 19:21-20:5, 32:6-24 with Ex. 4 photo. GOMEZ’s employer conducted an investigation into the INCIDENT and found unrelated PCV sprinkler pipe on the other side of the breezeway from where the INCIDENT occurred which was different and distinguishable from the subject metal conduit PIPE which had yellow string tied to it. The PVC pipe did not look similar to the subject PIPE in any way. Depo of Boyd @72:6-74:1 and Ex. 4 photo. 4 Separate Statement of Undisputed Material Facts in Support of Motion for Summary JudgmentOo OD ON WO OH FF WHY = oOo ON OB OH KF WN NN NY NY NY NY NY NY N oN BO oO FF WN = CO UMF# | Moving Party’s Undisputed Material Opposing Party’s Response an Facts and Supporting Evidence: Supporting Evidence: 12 Plaintiff-in-Intervention Hugo Gomez does not know who installed the PIPE. Depo of Gomez @ 52:9-13 13 Plaintiffs co-workers, Alberto Ramirez Alvarez and Angel Muro, were present when the INCIDENT occurred and don’t know who installed the PIPE. Depo of Alvarez @ 15:18-17:5, 21:2- 25; Depo of Muro @14:5-21, 18:3-21, 21:11-24 Despite significant discovery, GOMEZ is still aware of no facts, witnesses or evidence that GANDOLAS installed the PIPE. Gomez Responses to Gandola’s Requests for Admission #1, 3 & 5 & corresponding Responses to Form Interrogatory 17.1. jee Despite significant discovery, GOMEZ is still aware of no facts, witnesses or evidence that GANDOLAS’s conduct was a substantial factor in causing the INCIDENT. Gomez Responses to Gandola’s Request for Admission #6 & corresponding Response fo Form Interrogatory 17.1. Dated: January 31, 2023 EPPS & GILROY LLP > Bye, le coer Darren W. Epps Attorneys for Defendant-in-Intervention, GANDOLA’S LANDSCAPING & LAWN CARE, INC. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment 5oD ON OD HD BRB WN = PROOF OF SERVICE lam employed in the County of Santa Barbara, California, am over the age of 18 years, am not a party to this action, and my business address is: EPPS & GILROY LLP 2650 Industrial Parkway, #100, Santa Maria, CA 93455. On February 1, 2023, | served the following documents: SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT, on the interested parties in this action as follows: DX] [] SEE SERVICE LIST BY EMAIL OR ELECTRONIC TRANSMISSION. Based on a Court order or an agreement of the parties to accept service by email or electronic transmission, | caused the document(s) to be sent from email address mdeleon@eallp.com to the person at the email address listed above. | did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. BY MAIL — | placed the original, or a true and correct copy thereof, in a separate sealed envelope for each addressee above, with sufficient postage paid, in the United States mail in this County on this date, following my employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service. OVERNIGHT DELIVERY — This document was sent via overnight courier to the address listed above. [XX] STATE — | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 1, 2023, at Santa Maria, California. Marissa DeLeonoD OWN OD HD BF WN = Service List Ernest A. Vargas, Esq. LAW OFFICES OF VARGAS & VARGAS Attorney for Plaintiff 301 North Lake Avenue Suite 120 Pasadena, CA 91101 T: 626-440-1111 F: 626-440-9456 E: ernest@vargasandvargas.com Steve Pabros, Esq. Zsuzsanna Veres, Esq. Attorney for: Pavletich Electric & O'BRIEN LAW, P.C. Communications, INC 755 Baywood Drive, Suite 185 Petaluma, CA 94954 T: 707-789-6500 F: 707-789-6520 E: steve@pobrienlaw.com suzie@pobrienlaw.com tania@pobrienlaw.com Patrick Quigley, Esq. Attorney for Zurich American International Canon Young, Esq Company MORALES, FIERRO & REEVES 2151 Salvio St. #280 Concord, CA 94520 T: 925-288-1776 E: cyoung@mfrlegal.com paquigley@mfrlegal.com sbird@mfrlegal.com Susan H. Hobson Attorney for J.L Plank, INC., dba CEN-CAL Law Office of Patrick J. Campbell Construction 915 Highland Pointe Drive, Suite 250 Roseville, CA 95678 shobson@unitedfireqroup.com ckort@unitedfireqroup.com mliberato@unitedfirearoup.com Peter Hughes, Esq. Attorney for Rios Design Studio, LLC Marty B. Ready, Esq. 401 West A. Street, Suite 1900 San Diego, CA 92101 peter.hughes@wilsonelser.com marty.ready@wilsonelser.com irene.gonzalez@wilsonelser.com