Torres v. Design Group Facility Soultions, Inc.

Filed 2/13/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ISMAEL TORRES, JR., an B294220 Incompetent Person, etc., (Los Angeles County Plaintiff and Appellant, Super. Ct. No. BC608065)

v.

DESIGN GROUP FACILITY SOLUTIONS, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Maurice A. Leiter, Judge. Reversed. Law Offices of Berglund & Johnson and Daniel W. Johnson for Plaintiff and Appellant. Lynberg & Watkins, Michael J. Larin, Jerome P. Doctors; London Fischer, Richard S. Endres, Nicholas W. Davila and Grant R. Mullen for Defendant and Respondent. ——————————

Ismael Torres, Jr. sued Design Group Facility Solutions, Inc. (Design) for personal injuries after he fell through a skylight at a construction site. Design moved for summary judgment. The trial court initially denied the motion. Design moved for reconsideration based on new evidence under Code of Civil Procedure1 section 1008, subdivision (a). At the hearing on the motion, the trial court granted reconsideration and, at the same time, granted the motion for summary judgment without giving Torres an opportunity to respond to the new evidence. We find the trial court abused its discretion. We hold that a party unsuccessfully moving for summary judgment cannot circumvent the requirements of section 437c by subsequently moving for reconsideration under section 1008, subdivision (a). BACKGROUND Design was hired as the general contractor to renovate and expand a seafood processing facility. As part of the project, Design subcontracted with C&L Refrigeration (C&L) to install new refrigeration units. C&L in turn hired H.J. Vast (Vast) as a sub-subcontractor to do electrical work. Torres was an employee of Vast. The renovation required workers to be on the roof, which contained skylights. The roof was roughly divided into western and eastern sections by a pipe rack with the skylights on the western section closer together than the skylights on the eastern section. Design and C&L discussed the safety hazard posed by the skylights. To address the hazard, C&L created a pathway on the roof, requiring its workers to walk due west and delineating