United States District Court, M.D. Florida,

Tampa Division.

ACE AMERICAN INSURANCE COMPANY, etc., Plaintiff,

v.

FIRST CHOICE MARINE, INC., et al., Defendants.

No. 8:07-CV-1473-T-17TBM.

 

July 29, 2010.

 

ORDER

 

ELIZABETH A. KOVACHEVICH, District Judge.

 

This cause is before the Court on:

 

Dkt. 33 Motion for Leave to Amend and For Reconsideration

 

Dkt. 38 Response

 

Plaintiff Ace American Insurance Company moves for reconsideration of the Court’s Order granting dismissal of Counts III and IV (Dkt.33), and moves for leave to amend the Complaint.

 

Defendant Mercury Marine, an unincorporated division of Brunswick Corporation, opposes Plaintiff’s Motion for Reconsideration and Leave to Amend.

 

I. Standard of Review

 

A. Reconsideration

 

The decision to grant a Motion for Reconsideration is within the sound discretion of the trial court and will only be granted to correct an abuse of discretion. Region 8 Forest Serv. Timber Purchases Council v. Alcock, 993 F.2d 800, 806 (11th Cir.1993). In fact, there are three bases for reconsidering an order: “(1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.Fla.1994). See also: Lamar Adver. of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D.Fla.1999).

 

Furthermore, a Motion for Reconsideration does not provide an opportunity to simply reargue, or argue for the first time, an issue the Court has once determined. Court opinions are “not intended as mere first drafts, subject to revision and reconsideration at a litigant’s pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). The reconsideration of a previous order is an “extraordinary remedy” and “must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Ludwig v. Liberty Mutual Fire Ins. Co., 2005 WL 1053691 (citing Lamar, 189 F.R.D. at 489 (M.D.Fla.1999)).

 

B. Leave to Amend

 

A decision whether to grant leave to amend is within the discretion of the district court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Leave “shall be freely given when justice so requires.” Id. A court should deny leave to amend a pleading when: 1) the amendment would be prejudicial to the opposing party; 2) there has been bad faith or undue delay on the part of the moving party, or 3) the amendment would be futile. Foman, 371 U.S. at 182.

 

II. Plaintiff’s Motion

 

Plaintiff Ace American Insurance Company argues that the Court dismissed Counts III and IV on a Motion to Dismiss without providing leave to Amend, and without applying the proper standards, treating the Motion to Dismiss as though one for summary judgment. Plaintiff Ace American argues that the Court improperly resolved substantial disputed issues of both law and fact, while considering the presentation of “facts” by only one party.

 

As to Count III, Plaintiff argues that there is no written bailment agreement, and the Court’s determination that the warranty agreement forms the basis of the bailment count is not correct. Plaintiff argues that the warranty agreement documents do not directly address the issues presented by the facts and as a result the case is one of ordinary negligence, or breach of implied contract terms. Plaintiff argues that the parties’ practice as to agency diverges significantly from the warranty document. Plaintiff argues that the law of agency requires the Court to consider other relevant facts, and not rely on a self-serving document written by one party. Plaintiff further argues that the Court erroneously relies on the absence of an allegation that the boat was delivered to Mercury, basing this determination on a view of agency that has pre-judged the issue. Plaintiff argues that missing allegations can and should be allowed to be cured by amendment.

 

As to Count IV, Plaintiff argues that the Court has misunderstood the nature of Plaintiff’s claim, and has relied on case law that does not apply to this case.

 

III. Defendant Mercury Marine’s Response

 

Defendant Mercury Marine (“Mercury”) responds that Plaintiff Ace American Insurance Company has not set forth facts or law of a convincing nature to induce the Court to reverse its prior decision on the breach of bailment claim or the breach of contract claim.

 

Defendant Mercury argues that a bailment does not arise unless [there is] delivery to the bailee, and he has exclusive possession of the bailed property, even as against the property owner. Defendant Mercury further argues that there can be no bailment when the property was allegedly in the possession of two defendants. Ice Fern Shipping Co. v. Golten Serv. Co., 2005 WL 3692840 (S.D.Fla.2005) (case properly dismissed against WNA where Complaint alleged that the cargo was in possession of both defendants, because plaintiffs failed to allege that the WNA had exclusive possession of the cargo).

 

As to Count IV, Defendant Mercury Marine responds that Plaintiff has not come forward with facts showing that there is privity of contract between Mercury Marine and its insured, which is required to establish a breach of implied warranty.

 

IV. Analysis

 

A. General Principles

 

At the outset, in determining a motion to dismiss, the Court is limited to the well-pleaded facts alleged within the complaint, and the reasonable inferences drawn from those facts. A complaint must plead sufficient facts which, taken as true, state a claim for relief which is plausible on its face. In Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260-61 (11th Cir.2009), the Eleventh Circuit Court of Appeals notes:

 

Although it must accept well-pled facts as true, the court is not required to accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. —-, 129 S.Ct. 1937, 173 L.Ed.2d 868.1949, — U.S. —-, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (noting “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). In evaluating the sufficiency of a plaintiff’s pleadings, we make reasonable inferences in Plaintiff’s favor, “but we are not required to draw plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir .2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s allegations. Id.; see also Iqbal, 129 S.Ct. at 1951 (stating conclusory allegations are “not entitled to be assumed true”).

 

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 129 S.Ct. at 1950 (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the prior “unless it appears beyond doubt that the plaintiff can prove no set of facts” standard). In Twombly, *1261 the Supreme Court emphasized a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S.Ct. at 1964-65 (internal citations and emphasis omitted).

 

More recently, in Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” Iqbal, 129 S.Ct. at 1949. A complaint must stale a plausible claim for relief, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.

 

Documents which are not attached to the complaint but attached to a motion to dismiss may be considered when those documents are central to the claim and the contents of the documents are not disputed. Bryant v. Avado Brands, Inc., 187 F.3d 1271 fn. 16 (11th Cir.1999). Based on allegations within the Amended Complaint, the Court considered the warranty documents provided by Defendant Mercury (Dkt.19-1).

 

Plaintiff Ace has filed depositions along with Plaintiff’s Motion for Reconsideration. The Court did not consider matters outside the pleadings in ruling on the Motion to Dismiss, and will not do so in ruling on Plaintiff’s Motion for Reconsideration.

 

In the First Amended Complaint, Plaintiff alleges that jurisdiction is predicated on 28 U.S.C. Sec. 1333 or predicated on 28 U.S.C. Sec. 1332. Plaintiff Ace did not specify what law controls the causes of action alleged in Counts III and IV of the Amended Complaint.

 

In the Amended Complaint, Plaintiff Ace alleges that Defendant Mercury Marine contracted with Steven Hays by providing a written warranty for the engines that were on Mr. Hays’ vessel. A contract for the purchase of a vessel is not a maritime contract. In the Court’s previous order, the Court, after considering the provisions of the Limited Warranty Agreement, concluded that the Limited Warranty Agreement between Steven Hays and Defendant Mercury Marine was part of the initial purchase of the vessel. The Court therefore considered Count III only under Florida law.

 

The Court notes that Plaintiff alleges Plaintiff and Defendant Mercury Marine entered into a contract for warranty repairs, and alleges that Steven Hays took his boat and engines to First Choice Marine, Inc. for warranty repairs. A contract for repair of a vessel is a maritime contract. Reel Therapy Charters. Inc. v. Marina Management, Inc., 2003 WL 23514559 (N.D.Fla.2003); Complaint of Lady Jane, Inc., 818 F.Supp. 1470 (M.D.Fla.1992).

 

B. Count III-Breach of Bailment Contract v. Mercury Marine

 

1. Controlling Law

 

In its prior order, the Court relied on Florida law. Plaintiff Ace American Insurance Company has moved for reconsideration of the Order dismissing Counts III and IV. The Court now understands that in Count III Plaintiff Ace seeks to allege a cause of action for breach of an oral bailment contract between Plaintiff’s insured and Defendant Mercury Marine. Since Plaintiff’s insured was seeking repair by means of the oral bailment contract, federal common law controls rather than state contract law. Under federal common law:

 

Bailment is the delivery of goods or personal property to the bailee in trust, under an express or implied contract, which requires the bailee to perform the trust and either to redeliver the goods or otherwise dispose of the goods in conformity with the purpose of the trust. Under general admiralty law, bailment does not arise unless delivery to the bailee is complete and he has exclusive possession of the bailed property, even as against the property owner.

 

See Thyssen Steel Co. v. M/V Karo Yerakas, 50 F.3d 1349 (5th Cir.1995). However, applying federal common law to the cause of action in Count III does not change the result reached in the Court’s previous order.

 

2. Does Count III allege a bailment contract?

 

In the Amended Complaint, Plaintiff alleges:

 

….

 

3. Defendant, First Choice Marine, Inc. was and still is a Florida corporation with its principal place of business at 2509 24th Ave North, St. Petersburg, Florida 33713, that is a boat repair dealer and repair facility that was going to perform warranty repairs to the vessel owned by Steven Hays.

 

4. Defendant, Mercury Marine Corporation was and still is a corporation that was and still is doing business [in] St. Petersburg, Florida and contracted with Steven Hays by providing a written warranty for the engines that were on Mr. Hays’ boat.

 

….

 

COUNT III-BREACH OF BAILMENT CONTRACT V. MERCURY MARINE

 

13. Plaintiff re-alleges and incorporates herein paragraphs 1 through 4 above and further states as follows:

 

14. Plaintiff and Defendant, Mercury Marine Corporation, entered into a contract for warranty repairs to the engines on the vessel owned by Steven Hays and insured by the Plaintiff.

 

15. Defendant, Mercury Marine Corporation, through its agents, told Steven Hays to take his boat to Defendant, First Choice Marine, Inc. for warranty repairs.

 

16. On or about December 7, 2006, Steven Hays took his boat and engines to have the Mercury Marine warranty repairs done by Defendant, First Choice Marine, Inc. As a result of the Defendant, Mercury Marine’s negligence in failing to make sure that First Choice Marine had adequate security measures, the vessel was stolen from First Choice Marine’s possession. The bailment contract was between Plaintiff and Defendant, Mercury Marine and Mercury Marine is liable for its subcontractor’s negligence in not having adequate security and liability insurance.

 

17. As a direct and proximate cause of the breach of bailment contract by Defendant, Mercury Marine Corporation, the Plaintiff has sustained damages.

 

WHEREFORE, Plaintiff requests that this Court enter judgment against the Defendant in full amount of Plaintiff’s damages plus prejudgment interest and costs.

 

a) Exclusive Possession

 

When a vessel is placed at a wharf or dock for storage and/or repairs, a bailment results for the mutual benefit of the owner of the vessel and the operator of the wharf or dock. Stegeman v. Miami Beach Boat Slips, 213 F.2d 561, 564 (5th Cir.1954). In order for a bailment to exist, the bailee must have voluntarily assumed the custody and possession of the property for another.   Dunavent Enterprises, Inc. v. Strachan Shipping Compoany, 730 F.2d 665 (11th Cir.1984).

 

A bailment arises only upon delivery of the property sought to be bailed. In the Amended Complaint, Plaintiff Ace American Insurance Co. does not allege that Steven Hays took his boat and engines to Defendant Mercury Marine, and left the boat and engines in the custody of Defendant Mercury Marine. The Court accepts the truth of Plaintiff’s allegation that Steven Hays took his boat and engines to Defendant First Choice Marine, Inc. Plaintiff’s allegation that Steven Hays took his boat and engines to Defendant First Choice Marine, Inc. excludes any possibility that Steven Hays put his boat and engines within the exclusive possession of Defendant Mercury Marine.

 

The Court recognizes that when a bailee entrusts bailed property to a third party without the consent of the bailor, and the property is lost or damaged while in the custody of the third party, courts have held that the bailee is liable to the bailor for the loss or damage regardless of whether the bailee was negligent. First American Bank. N.A. v. District of Columbia, 583 A.2d 993 (D.C.1990). However, in this case, Plaintiff Ace alleges that Steven Hays, Plaintiff’s insured, took his boat and engines to Defendant First Choice Marine, Inc. for the warranty repairs to be performed. If there was an oral bailment contract for warranty repairs between Steven Hays and Defendant Mercury Marine, Defendant Mercury Marine did not entrust the bailed property to Defendant First Choice Marine, Inc. without the knowledge and consent of Steven Hays.

 

Where the delivery of a vessel is not complete, as when the owner remains with it, or has an independent agent or employee responsible for it, or for certain aspects of its care, there is a corresponding limitation on the bailment and the duty of the bailee. Stegeman v. Miami Boat Slips, Inc., 213 F.2d 561, 565 (5th Cir.1954) (internal citations omitted). Plaintiff Ace does not allege that the delivery to Defendant First Choice Marine was not complete i.e. that Steven Hays, the owner, remained with the vessel after delivery to First Choice Marine Inc.

 

Plaintiff does not allege that Defendant Mercury Marine and Defendant First Choice Marine are one entity, or that Defendant Mercury Marine had the right of access to the boat after Steven Hays left his boat in the custody of First Choice Marine, Inc. There was only one boat; Steven Hays’ boat could not be in two places at the same time, nor within the exclusive possession of more than one bailee. The Court concludes Plaintiff’s claim against Mercury Marine for breach of an oral bailment contract cannot succeed, even if the Court granted leave to amend, because Plaintiff did not, and cannot, allege that Plaintiff’s insured put his boat and engines within the exclusive possession of Defendant Mercury Marine.

 

The Court notes that Plaintiff Ace alleges that Defendant First Choice Marine’s principal place of business is 2509 24th Avenue North, St. Petersburg, Florida, 33713. Plaintiff Ace alleges that Defendant Mercury Marine is a corporation that does business in St. Petersburg, Florida, and which contracted with Plaintiff’s insured, Steven Hays by providing a written warranty for the engines that were on Mr. Hays’ boat. Plaintiff Ace does not identify the address of the Mercury Marine dealership where Plaintiff’s insured contracted with Mercury Marine. Because it will clarify the issues that must be resolved in this case, the Court directs Plaintiff Ace to file an Amended Complaint which identifies the address where Plaintiff’s insured and Mercury entered into the written warranty contract for the engines that were on Steven Hays’ boat.

 

After consideration, the Court denies the Motion for Reconsideration as to Count III. The Court directs Plaintiff Ace to file an amended complaint which identifies the address where Plaintiff’s insured and Defendant Mercury Marine entered into the written warranty contract, and otherwise denies the Motion for Leave to Amend as to Count III.

 

C. Count IV-Breach of Contract v. Mercury Marine

 

1. Controlling Law

 

In the previous order, the Court concluded that the Limited Warranty Agreement was part of the initial purchase of the vessel and therefore controlled by state law, not admiralty law. The Court ruled previously based on the Court’s belief that Plaintiff’s cause of action was for breach of the Limited Warranty Agreement. The Court now notes that Plaintiff Ace alleges that Plaintiff and Defendant Mercury Marine Corporation entered into an oral contract for warranty repairs to the engines of the vessel owned by Hays and insured by Plaintiff. In ruling on a motion to dismiss, the Court must consider Plaintiff’s factual allegations to be true. In considering the correct choice of law, the Court relies on Plaintiff’s factual allegation that Plaintiff’s insured and Defendant Mercury Marine entered into an oral contract for warranty repairs. Since a contract for warranty repairs is a maritime contract, the Court will address this issue under admiralty law. Defendant Mercury Marine and Plaintiff Ace American do not explain why the parties have argued in terms of Florida law.

 

2. Contract for Warranty Repairs

 

Plaintiff alleges that Plaintiff and Defendant Mercury Marine Corporation entered into a contract for warranty repairs to the engines on the vessel owned by Steven Hays and insured by Plaintiff (Dkt.8, p. 4, Par. 19). Plaintiff includes no allegations as to when and where Steven Hays and Defendant Mercury Marine entered into the alleged contract, nor does Plaintiff identify the terms of the contract.

 

Plaintiff Ace alleges that:

 

“On or about December 7, 2006, Steven Hays took his boat and engines to have the Mercury Marine warranty repairs done by Defendant, First Choice Marine, Inc. As a result of the Defendant, First Choice Marine, Inc.’s negligence, the vessel was stolen from their possession. Implied in the contract between Steven Hays and Mercury Marine is that Mercury Marine would fix the engines that were under warranty itself or that they would use subcontractors to do this work that have adequate security and liability insurance. Defendant First Choice Marine, Inc. did not have adequate security and liability insurance and Defendant Mercury Marine is liable for its breach of contract with the Plaintiff.

 

As a direct and proximate result of the breach of contract by Mercury Marine, the Plaintiff has sustained damages.”

 

Based on the above allegations, the Court assumes that Defendant Mercury Marine’s role in the alleged contract for repairs was to direct Plaintiff’s insured, Steven Hays, to a dealer authorized to perform the repairs.

 

The elements of a breach of contract claim are: 1) a valid contract; 2) a material breach, and 3) damages. The Court notes that this case does not involve a personal injury, only economic losses For the purpose of this Motion, the Court accepts the truth of Plaintiff’s factual allegation that Plaintiff’s insured and Defendant Mercury Marine entered into an oral contract for warranty repairs which consisted of Defendant Mercury Marine telling Steven Hays to take his vessel to Defendant First Choice Marine, Inc. for the repairs to be performed.

 

3. Implied Duty to Perform Repairs

 

In this case, the parties had a written agreement which spelled out the limited warranty which covered the vessel of Plaintiff’s insured. The Court now recognizes that the Limited Warranty Agreement is separate from the oral contract for warranty repairs which is the subject of this breach of contract claim. Some provisions of the Limited Warranty Agreement directly relate to Plaintiff’s breach of contract claim.

 

Plaintiff’s claim is based in part on the alleged breach of Defendant’s implied duty to perform the warranty repairs itself. However, Limited Warranty Agreement states that warranty service is obtained by “delivering the product for inspection to a Mercury dealer authorized to service the product.” (Dkt.19-2, p. 14). The Agreement further provides that the “Purchaser shall not, unless requested by Mercury, ship the product or parts of the product directly to Mercury.” The Agreement further provides:

 

“Labor performed by other than an authorized dealer may be covered only under the following circumstances: When performed on an emergency basis (providing there are no authorized dealers in the area who can perform the work required or have no facilities to haul out, etc., and prior factory approval has been given to have the work performed at this facility).”

 

The above provisions signal that the intent of the parties was that authorized dealers would perform warranty repairs, not Mercury Marine, the manufacturer, itself. The express provisions are plainly stated and do not require interpretation. The above provisions exclude a breach of contract claim based on Defendant’s implied duty to perform the warranty repairs itself.

 

3. Warranty of Workmanlike Performance

 

The warranty of workmanlike performance is an implied warranty imposed on a maritime service contractor which requires services to be performed with reasonable care, skill and safety. Vierlina v. Celebrity Cruises, Inc., 339 F.3d 1309, 1315 (11th Cir.2003); Coffman v. Hawkins & Hawkins Drilling Co., Inc., 594 F.2d 152, 154 (5th Cir.1979) (“[I]ndependent shore-based contractors that go aboard a vessel by the owner’s arrangement or by his consent to perform service for the ship’s benefit impliedly warrant to the shipowner that they will accomplish their task in a workmanlike manner. The essence of the contractor’s warranty of workmanlike performance is to perform its work properly and safely.”).

 

Plaintiff Ace identifies Defendant First Choice Marine, Inc. as the entity which was to perform the warranty repairs. Since Plaintiff alleges that Defendant First Choice Marine, Inc. was to perform the warranty repairs, any breach of the warranty of workmanlike performance must be directed to Defendant First Choice Marine, Inc.

 

4. Limitation of Liability

 

Within the Limited Warranty Agreement, Defendant Mercury Marine outlines: 1) the duration of coverage; 2) conditions that must be met in order to obtain warranty coverage; 3) Mercury’s limited obligations; 4) how to obtain warranty coverage; and 5) what is not covered. (Dkt.19-1, pp. 8-9, 14-15). There is a conspicuous notice of disclaimer and limitations as to the implied warranties of merchantability and fitness for a particular purpose. Incidental and consequential damages are expressly excluded (Dkt.19-1, pp. 10, 15). The Limited Warranty Agreement explains the scope of warranty coverage, and general exclusions from coverage (Dkt.19-1, pp. 16-17).

 

Parties to a contract for the repair of a vessel may validly agree to limit the repairer’s liability. Edward Leasing Corp. v. Uhlig & Associates, Inc., 785 F.2d 877, 888 (11th Cir.1986). To be enforceable, the limited liability clause must clearly and unequivocally indicate the parties’ intention. As noted above, Defendant’s disclaimer and the express limitation of liability are set off in a separate box, and are stated in plain English in bold-faced capital letters. (Dkt.19-1, pp. 10, 15).

 

In addition, the limitation must not absolve the repairer of all liability and must provide a deterrent to negligence. Bisso v. Inland Waterways Corp., 349 U.S. 85, 90-91, 75 S.Ct. 629, 99 L.Ed. 911 (1955). The Limited Warranty Agreement provides:

 

WHAT MERCURY WILL DO: Mercury’s sole and exclusive obligation under this warranty is limited to, at our option, repairing a defective part, replacing such part or parts with new or Mercury Marine certified remanufactured parts, or refunding the purchase price of the Mercury product. Mercury reserves the right to improve or modify products from time to time without assuming an obligation to modify products previously manufactured.

 

(Dkt.19-1, p. 3).

 

The Limited Warranty Agreement does not absolve Defendant Mercury Marine of all liability, and provides a deterrent to negligence by exposing Defendant Mercury Marine to the risk of refunding the purchase price of the Mercury product.

 

In addition, the parties must be of equal bargaining power to prevent overreaching. Plaintiff has alleged no facts within the Amended Complaint from which the Court can infer overreaching. Plaintiff’s insured elected to purchase the Mercury Marine product, which was subject to the provisions of the Limited Warranty Agreement. Plaintiff’s insured was free to choose another product if the terms of the Limited Warranty Agreement were not acceptable.

 

It is not appropriate for the Court to determine the limitation of liability clause is enforceable in determining Plaintiff’s Motion to Dismiss. After consideration, the Court concludes that Count IV states a claim for breach of the warranty of workmanlike performance as to the oral contract for repairs which Plaintiff’s insured entered into with Defendant Mercury Marine. The Court therefore grants Plaintiff’s Motion for Reconsideration as to Count IV. Accordingly, it is

 

ORDERED that the Motion for Reconsideration and Motion for Leave to Amend is denied as to Count III, and the Motion for Reconsideration is granted as to Count IV.

 

DONE and ORDERED.

Court of Appeal, Second District, Division 3, California.

Lorena DEL VALLE, Individually and as Conservator, etc., et al., Plaintiffs and Appellants,

v.

MAGDALENO TRUCKING, INC., et al., Defendants and Respondents.

Nos. B212814, B215459.

(Los Angeles County Super. Ct. No. TC021339).

 

July 28, 2010.

 

CROSKEY, J.

 

Hector Antonio del Valle Haro (del Valle) suffered serious injuries when a trench compactor fell on top of him as he was attempting to unload it from a flatbed trailer. Del Valle, his wife, and their minor dependent sued the owner of the real property where the incident occurred and related parties for premises liability. The trial court awarded summary judgment in favor of those defendants on the grounds that they owed plaintiffs no duty of care and that plaintiffs could not establish either a breach of duty or causation. Plaintiffs appeal the judgments in favor of defendants Magdaleno Trucking, Inc. (Magdaleno Trucking), and Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust.

 

Plaintiffs contend the defendants owned or controlled the real property where the incident occurred and owed a duty to exercise due care to protect persons coming onto the land. They contend the defendants breached that duty by failing to repair or give adequate warning of a dangerous condition on the property, resulting in del Valle’s injury. We conclude that the defendants owed a duty of care to persons coming onto the land but are entitled to summary judgment on the ground that the undisputed facts show that they did not breach that duty. We therefore affirm the judgments.

 

FACTUAL AND PROCEDURAL BACKGROUND

 

1. Factual Background

 

Magdaleno Living Trust owned real property located at 8255 Grimes Canyon Road in Moorpark, California. The property consisted of approximately 23 acres of land and included a warehouse, a residence, a garage, two other storage facilities, and what is described as a shop used for trucks. Portions of the property were paved with concrete, but most of the surface of the property was unpaved dirt. Magdaleno Trucking operated on the property and stored four trucks and forty trailers on the property. Miguel Magdaleno was the president of Magdaleno Trucking, was its sole officer, director, employee, and shareholder, and resided on the property.

 

Miguel Magdaleno allowed del Valle’s employer, Gold Coast Masonry, to store construction equipment on an unpaved portion of the property pursuant to an oral agreement with Gary Rodriguez of Gold Coast Masonry. Del Valle drove a truck pulling a flatbed trailer to the property on the morning of March 14, 2006. The trailer was carrying a trench compactor. The truck and equipment had been parked on the street outside del Valle’s home in Sylmar on the previous night. As del Valle was attempting to unload the compactor from the trailer down a ramp, the compactor shifted to the side. Del Valle either jumped or fell to the ground behind the trailer, and the compactor tipped over on its side and fell to the ground on top of him.

 

Jaime Magdaleno, brother of Miguel Magdaleno, witnessed the accident. He ran to a nearby forklift and used it to lift the compactor off of del Valle, who was unconscious. Del Valle remained in a coma for more than two months and suffered serious injuries.

 

 

2. Trial Court Proceedings

 

Lorena del Valle and Jose Luis Sanchez, as conservators of the del Valle estate; Lorena del Valle individually; and Thalia Linares, a minor, by and through Lorena del Valle as her guardian ad litem, filed a complaint against Miguel Magdaleno and others in September 2007. Plaintiffs alleged causes of action for (1) products liability, (2) negligence, (3) premises liability, and (4) loss of consortium. The only causes of action alleged against Miguel Magdaleno are for premises liability and loss of consortium.

 

Plaintiffs alleged that Miguel Magdaleno and fictitious defendants owned or occupied the subject real property, that they controlled the real property, that they were aware that Gold Coast Masonry stored construction equipment on the property, and that they owed plaintiffs a duty of care. They alleged that the defendants breached their duty of care by failing to “adequately ensure a dry storage and operating environment for the vehicles stored and operated at the Moorpark Storage Facility” and, in various ways, to ensure the safe maintenance and operation of the equipment used by del Valle and Gold Coast Masonry. Plaintiffs filed an amendment to the complaint substituting Magdaleno Trucking for a fictitious defendant as to counts three and four in December 2007, and filed an amendment substituting Magdaleno Living Trust for a fictitious defendant as to the same counts in May 2008.

 

We take judicial notice of the amendment filed on May 19, 2008, substituting the Magdaleno Family Trust for a fictitious defendant. (Evid.Code, § 452, subd. (d).) The proper defendant is Miguel Magdaleno as trustee of the trust. (See Code Civ. Proc., § 369, subd. (a)(2).)

 

Magdaleno Trucking filed a summary judgment motion in June 2008. Magdaleno Trucking argued that it did not own the real property, supervise or control del Valle in his operation of the equipment, or own or control the equipment that he was operating, and that it therefore owed him no duty of care. It also argued that the undisputed evidence showed that the area where the equipment was stored was flat, dry dirt, and it presented a declaration by Miguel Magdaleno and deposition testimony by Gary Rodriguez so stating. The motion was scheduled for hearing on September 2, 2008.

 

Plaintiffs opposed the summary judgment motion, arguing that the sole ground for the motion was the purported absence of a duty of care and that Magdaleno Trucking had failed to controvert the allegation that it controlled the area of the property where the incident occurred. Plaintiffs also filed an expert declaration by Glen Stevick stating that the area where the accident occurred was not level. Magdaleno Trucking filed an objection to that portion of the Stevick declaration and other evidentiary objections.

 

Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, appeared in this action for the first time when he filed answers in both capacities on the day of the summary judgment hearing on September 2, 2008. He requested a one-week continuance of the hearing to allow him to join in the summary judgment motion. He stated that he planned to join Magdaleno Trucking’s motion in its entirety and not submit additional memoranda of points and authorities or separate statements of undisputed facts. Plaintiffs argued that a joinder would deprive them of the 75-day statutory notice period, which is the required time between the filing of and the hearing on a summary judgment motion, as to the joining defendants and that the joining defendants were required to individually submit separate statements of undisputed facts in support of the summary judgment motion. In response to these objections, the trial court gave plaintiffs two options: waive the notice period or stipulate to a continuance of the trial date, which was within 75 days of the summary judgment hearing date, so that they could receive their statutory notice period. Plaintiffs refused to accept either of these options, instead arguing only that the joinder was improper and should be denied. Plaintiffs further stated that they did not want the trial date to be continued. The trial court continued the summary judgment hearing for one week and stated that it would decide at that time whether joinder was proper.

 

Plaintiffs contend that the Magdaleno defendants took inconsistent positions with respect to ownership and control of the Moorpark property. This is incorrect. The defendants conceded that the Magdaleno Living Trust owned the property, but all three defendants contended that they did not control the area in which del Valle parked his truck.

 

Plaintiffs also filed a supplemental opposition to the summary judgment motion on the original hearing date, including deposition testimony by Jaime Magdaleno stating that the portion of the property where the incident occurred was sloped and that Miguel Madgaleno and Gold Coast Masonry parked trucks in the same general area.

 

Miguel Madgaleno, individually and as trustee of the Magdaleno Living Trust, filed a notice of joinder in the summary judgment motion, stating that he was not liable in either capacity for the same reasons that Magdaleno Trucking was not liable. Plaintiffs filed an objection to the notice of joinder.

 

At the continued hearing on the summary judgment motion, the statutory notice requirement was again discussed, and plaintiffs continued to argue both that joinder was improper and that the trial should not be delayed. Plaintiffs’ counsel stated that delaying the trial “would defeat really the much larger picture here which is our case that we’ll be going to trial. We’re ready to go, and it would be detrimental to everybody, all our experts and everybody if the trial was continued because of some sort of procedural discussion.” Despite counsel’s request, the trial court refused to issue a ruling on Magdaleno Trucking’s motion for summary judgment before making counsel choose whether to waive the notice period or continue the trial. Counsel refused to agree to a continuance of the trial.

 

The trial court allowed the joinder after it concluded that there was no material difference between the defendants with respect to liability. Counsel for Magdaleno Trucking orally objected to the excerpts from the deposition of Jaime Magdaleno filed with plaintiffs’ supplemental opposition as untimely. The court overruled the objection and sustained the objection to the Stevick declaration. The court granted the summary judgment motion in favor of the defendants. The written order stated as to the motion by Magdaleno Trucking:

 

“Magdaleno Trucking, Inc. did not exercise any control over plaintiff Hector Antonio del Valle Haro in his parking or unloading the Rammax trench compactor from its trailer. Plaintiff chose the place to park. There was no competent evidence that there was a dangerous condition on the property. Accordingly, under the circumstances of the case, Magdaleno Trucking, Inc., did not owe plaintiff Hector Antonio del Valle Haro a duty of care, there was no breach of such duty and there was no issue of causation.”

 

Plaintiffs repeatedly assert that defendants only sought summary judgment on the issue of duty and that the trial court only granted summary judgment on that issue. This is incorrect. While defendants’ briefs lacked appropriate headings, and defendants primarily argued that they owed no duty to del Valle, they also argued that there was no breach of duty because there were no dangerous conditions on the Moorpark property. Defendants specifically identified and refuted the breaches alleged in the complaint. In their opposition to summary judgment and their opening brief on appeal, plaintiffs put forward evidence and disputed defendants’ contention that the ground on which del Valle’s truck was parked was flat, clearly arguing that defendants breached their duty to exercise reasonable care in maintaining the property. The quoted portion of the trial court’s order also clearly notified plaintiffs that summary judgment was granted as to three different elements of the premises liability cause of action.

 

Another written order followed, stating the same as to Miguel Magdaleno, individually and as trustee. The court entered a judgment in favor of Magdaleno Trucking on September 19, 2008, and entered a judgment in favor of Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, on November 17, 2008. Plaintiffs timely appealed the judgments. We consolidated the two appeals.

 

CONTENTIONS

 

Plaintiffs contend (1) the joinder of Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, in the summary judgment motion by Magdaleno Trucking was untimely and improper; (2) the defendants owned or controlled the real property where the incident occurred and owed a duty to exercise due care to protect persons coming onto the land; (3) the defendants breached that duty by failing to repair or give adequate warning of the alleged dangerous condition created by the slope on the property, resulting in del Valle’s injury; and (4) the sustaining of the objection to the statement in the Stevick declaration regarding the condition of the property was error.

 

DISCUSSION

 

1. Standard of Review

 

Summary judgment is appropriate only if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The pleadings define the issues to be considered on a motion for summary judgment, “since it is these allegations to which the motion must respond.” ( Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1252-1253; Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640-641.) A defendant moving for summary judgment must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action. ( Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 (Miller ).) If the defendant meets this burden, the burden shifts to the plaintiff to set forth “specific facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)

 

We review the trial court’s ruling de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opposing party. ( Miller, supra, 36 Cal.4th at p. 460.) We will affirm a summary judgment if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons. ( California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22; see Code Civ. Proc., § 437c, subd. (m)(2).)

 

2. The Joinder of Defendants in the Summary Judgment Motion Was Not Untimely or Otherwise Improper

 

Plaintiffs contend that the joinder of Miguel Magdaleno, individually and as trustee of the Magdaleno Living Trust, in the summary judgment motion by Magdaleno Trucking was untimely. Plaintiffs contend that they were entitled to receive 75-day notice of the motion for summary judgment from each defendant. “Notice of the motion and supporting papers [for summary judgment] shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” (Code Civ. Proc., § 437c, subd. (a).) Trial courts have no discretion to reduce the required notice period without the consent of or a waiver by opposing counsel. (See Code Civ. Proc., § 437c, subd. (a); UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 368; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 763-766; McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117-118.)

 

On the unique facts of this case, the trial court did not reduce the required notice period. Plaintiffs received the required notice from Magdaleno Trucking, and when the other Magdaleno defendants joined the motion they did not seek summary judgment on any additional grounds or file their own supporting memoranda or separate statements of undisputed facts. They joined Magdaleno’s motion in its entirety and on the same grounds. Therefore, there was no need for additional notice because the same law and facts, all present in Magdaleno Trucking’s motion, determined whether all three Magdaleno defendants were entitled to summary judgment. There was no need for plaintiffs to modify their position in any manner, so they were not prejudiced. Therefore, the notice that plaintiffs received with respect to Magdaleno Trucking sufficed for all of the Magdaleno defendants.

 

Not only did they receive adequate notice, but plaintiffs essentially waived any objection to the notice they received when they objected to the continuance of the trial. At the initial hearing, the trial judge gave plaintiffs the option of agreeing to either the joinder or continuance of the trial. Instead of taking this opportunity to obtain the 75 days they now request, plaintiffs objected to both options. The court then continued the hearing for a week, and the notice period was again discussed. Plaintiffs counsel refused to stipulate to continuance of the trial and emphasized that a continuance “would be detrimental.” Plaintiffs can hardly complain that they should have received notice that they refused to accept.

 

Plaintiffs also contend that the joinder was improper because the joining defendants did not file their own separate statements of undisputed facts. “The supporting papers [for a motion for summary judgment] shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed…. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1).) The separate statement is required to give the parties and the trial court notice of which facts are undisputed. ( Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1209-1210.) Here, the separate statement requirement was met by the separate statement filed by Magdaleno Trucking and adopted by the other Magdaleno defendants. The Magdaleno defendants were identically situated in all respects except for ownership of the Moorpark property. Defendants conceded that the Magdaleno Living Trust owned the property, taking that fact out of contention. Plaintiffs and the trial court had already received notice of all of the bases on which summary judgment was sought, and all of the facts that defendants contested were undisputed. The trial court did not abuse its discretion because it reasonably concluded that there was no need for the joining defendants to submit an identical, duplicate copy of the separate statement in this unique situation.

 

Plaintiffs’ reliance on Frazee v. Seely (2002) 95 Cal.App.4th 627, 635-637 (Frazee ), for the proposition that defendants can never rely on a co-defendant’s separate statement is misplaced. In Frazee, one law firm joined another law firm’s motion for summary judgment and separate statement. (Ibid.) The trial court’s grant of summary judgment for the joining law firm was in part reversed because the separate statement that had been submitted by the moving law firm did not contain facts necessary to support the grant of summary judgment in favor of the joining law firm. (Ibid.)

 

Even if we were to accept that the trial court erred by allowing the joinder, this technical error had no affect on the resolution of this case and does not constitute reversible error.

 

Code of Civil Procedure section 475 states that “[n]o judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.”

 

3. Defendants Owed a Duty of Care to Persons Coming onto the Land

 

A person who owns or possesses and controls real property owes a duty to exercise reasonable care to maintain the property in such a manner as to avoid exposing others to an unreasonable risk of injury. ( Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156, 1159.) The duty pertains to both artificial and natural conditions of the property. ( Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371.) The failure to fulfill the duty is negligence. (Id. at pp. 371-372.) The existence of a duty of care is a question of law for the court to decide. ( Alcaraz, supra, 14 Cal.4th at p. 1162, fn. 4.)

 

Plaintiffs allege in their complaint that the defendants owned or occupied and controlled the real property where the incident occurred. The defendants neither argued nor presented any evidence to the contrary. Instead, they argued that they owed no duty to plaintiffs because they did not control the equipment that del Valle was operating. The defendants argued that the allegations against them all concerned del Valle’s performance of his job duties and “had nothing to do with the condition of the premises.”

 

Magdaleno Trucking asserted that it did not own the real property, but never denied its control of the real property.

 

The defendants’ characterization of the complaint is somewhat inaccurate. Plaintiffs allege a count for “premises liability” (capitalization omitted) and allege that the defendants’ ownership or occupation and control of the premises gave rise to a duty of care. The specific allegations concerning the manner in which the defendants breached their duty of care principally relate to their failure to ensure the safe maintenance and operation of the equipment, rather than their maintenance of the real property. However, the complaint did allege that defendants failed to “adequately ensure a dry storage and operating environment for the vehicles stored and operated at the Moorpark Storage Facility[.]” This allegation concerns a breach of the duty of reasonable care arising from defendants’ ownership or occupation and control of the real property and demonstrates that plaintiffs were not solely alleging that defendants had a duty to supervise del Valle’s activities.

 

We conclude that the allegations in the complaint are sufficient to establish a duty of care and that the defendants failed to show that plaintiffs cannot establish a duty of care. Accordingly, the defendants are not entitled to summary judgment based on the absence of a duty of care.

 

4. Defendants Are Entitled to Summary Judgment Because They Have Shown That Plaintiffs Cannot Establish a Breach of Defendants’ Duty

 

The pleadings define the issues on a motion for summary judgment. ( Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1182; Laabs v. City of Victorville, supra, 163 Cal.App.4th at pp. 1252-1253; Scolinos v. Kolts, supra, 37 Cal.App.4th at pp. 640-641.) In their complaint, plaintiffs alleged that defendants breached their duty to exercise reasonable care in essentially two ways. First, plaintiffs alleged a variety of ways in which defendants failed to ensure the safe maintenance and operation of the equipment used by del Valle and Gold Coast Masonry. These alleged breaches are inadequate to establish a breach of defendants’ duty to exercise reasonable care to maintain the property in such a manner as to avoid exposing others to an unreasonable risk of injury. They are not based on how defendants maintained the property, but rather on how del Valle and his employer, Gold Coast Masonry, operated their equipment.

 

Second, plaintiffs alleged that defendants breached their duty to exercise reasonable care by failing to “adequately ensure a dry storage and operating environment for the vehicles stored and operated at the Moorpark Storage Facility[.]” This alleged breach falls within the scope of the duty that defendants owed del Valle. To support their motion for summary judgment, defendants presented evidence that showed that the dirt area was dry, and plaintiffs do not dispute that the area in which the accident occurred was dry. This undisputed fact precludes plaintiffs from establishing a breach on this ground.

 

In their opposition to summary judgment and on appeal, plaintiffs appear to have abandoned their contention that defendants breached their duty to exercise reasonable care in the manners alleged in the complaint. Plaintiffs instead argue that defendants breached their duty to use reasonable care in maintaining the premises and warning visitors of any dangers because they allowed del Valle to unload the equipment on an unleveled dirt area. Contrary to plaintiffs’ contention, even a liberal interpretation of their allegation that defendants failed to “adequately ensure a dry storage and operating environment” (emphasis added) does not reasonably include the slope of the dirt area. While plaintiffs included in the complaint the caveat that the breaches pled were non-exclusive, this also does not suffice to withstand a summary judgment challenge. A defendant moving for summary judgment need only respond to the specific allegations in the complaint, not to any conceivable theory that the plaintiff may have. ( Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1182; Laabs v. City of Victorville, supra, 163 Cal.App.4th at pp. 1252-1253; Scolinos v. Kolts, supra, 37 Cal.App.4th at pp. 640-641.)

 

Plaintiffs were required to seek leave to amend the complaint prior to the summary judgment hearing in order to raise this additional breach of duty allegation-plaintiffs cannot raise new, unpleaded issues in their opposition to summary judgment. ( Laabs v. City of Victorville, supra, 163 Cal.App.4th at pp. 1252-1253 [plaintiff was required to seek leave to amend the complaint prior to summary judgment hearing in order to allege additional ways in which defendants had created dangerous conditions]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648-649 [plaintiff could not allege additional ways in which defendant breached fiduciary duty without amending the complaint]; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [“[i]f the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion”]; Scolinos v. Kolts, supra, 37 Cal.App.4th at pp. 640-641.) The record does not indicate and plaintiffs do not assert that leave to amend the complaint was sought or improperly denied.

 

Therefore, defendants were not required to refute plaintiffs’ argument that defendants breached their duty to exercise reasonable care by allowing del Valle to unload his equipment on an unleveled dirt area in order to obtain summary judgment. While the parties dispute whether the dirt area was level, this does not create a triable issue of fact because it has no bearing on whether the defendants breached their duty of care in one of the manners alleged in the complaint.

 

Accordingly, defendants are entitled to summary judgment based on the absence of a breach of their duty to del Valle. We need not address plaintiffs’ contention that the sustaining of the objection to the statement in the Stevick declaration regarding the condition of the property was error, since, in light of our conclusion, it has no bearing on the propriety of the grant of summary judgment.

 

DISPOSITION

 

The judgments are affirmed. Defendants are entitled to recover their costs on appeal.

 

We Concur: KLEIN, P.J., and KITCHING, J.